Chapter 19 Covert Actions Learning Objectives n n

Chapter 19 – Covert Actions

Learning Objectives n n n There is little direct statutory control of foreign covert actions or the agents who can carry them out, leaving the president wide discretion. Covert actions cannot violate statutes, unless the statutes exceed Congressional authority over the President. n Torture is about the only hard rule, and it is a limited restriction. Foreign covert actions not involving US persons do not trigger constitutional limitations, beyond funding limits. 2

What are some forms of covert action? n n Propaganda Supporting opposition or ruling political parties Paramilitary actions Cyber Operations 4

Unintended Consequences of Covert Actions n n Propaganda n How can propaganda blow back in the WWW linked world? Political action n What are examples where politics changed and we ended up supporting bad people or our enemies? 5

Paramilitary Actions n n What was Air America? n What is the downside of covert companies? Somoza provided base in Nicaragua to attack Cuba n How did one port town come full circle? Why do covert operations make you keep bad company? A question to think about: Is it better to have covert actions done by the military, by the CIA, 6 or by private contractors?

Neutrality Act of 1794 n Whoever, within the United States, knowingly begins or sets on foot or provides or prepares a means for or furnishes the money for, or takes part in, any military or naval expedition or enterprise to be carried on from thence against the territory or dominion of any foreign prince or state, or of any colony, district, or people with whom the United States is at peace, shall be fined under this title or imprisoned not more than three 7

What did Jefferson say about the Neutrality Act? n If one citizen has a right to go to war of his own authority, every citizen has the same. If every citizen has that right, then the nation (which is composed of all its citizens) has a right to go to war, by the authority of its individual citizens. But this is not true either on the general principles of society, or by our Constitution, which gives that power to 8

Logan Act - 18 U. S. Code §  53. Private correspondence with foreign governments n Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, 9

The History of the Logan Act Could this have been used against Jane Fonda in the Vietnam War? n What about Sean Penn visiting Iraq? n What about Nancy Pelosi visiting Syria? n Are there 1 st amendment issues? n Has the law been enforced? n 10

Historical Justification for Covert Actions - Mitchell Rogovin n . . . Beginning with George Washington, almost every President has appointed special agents to engage in certain activities with, or against, foreign countries. . In the first century of the Nation’s existence alone, more than 400 such agents were appointed by the President. 11

How did Robert Borosage dispute this precedent? n n What of the 400 agents in the first hundred years or the ‘‘legion’’ of precedents cited in the [Rogovin] Memorandum? These refer to special agents selected by Presidents to represent them abroad. . [T]hey are agents of the President rather than officials of the government—‘‘They have an employment, not an office’’; their duties are generally special and temporary. In effect, then, the Rogovin Memorandum would have us consider the dispatch of Chief Justice Warren to De. Gaulle’s funeral 12

Can covert activities be consistent with America values? (1954 Report) n It is now clear that we are facing an implacable enemy whose avowed objective is world domination by whatever means and at whatever cost. There are no rules in such a game. Hitherto acceptable norms of human conduct do not apply. If the U. S. is to survive, longstanding American concepts of ''fair play'' must be reconsidered. We must develop effective espionage and counterespionage services and must learn to subvert, sabotage, and destroy our enemies by more clever, more sophisticated, and more effective methods than those used against us. It may become necessary that the American people be made acquainted with, understand support this fundamentally repugnant philosophy. [Quoted in Church Comm. Rep. , supra p. 478, bk. I, at 50. ] 13

The Origin of the CIA The National Security Act of 1947

Why is it hard to look back to 1947 and make determinations about covert action as it is currently understood? n n Finally, the contemporary term ‘‘covert action’’ had no clearly understood forebear in 1947. While the terms ‘‘operational activities, ’’ ‘‘special operations, ’’ and ‘‘direct activities’’ were all used, they were employed to refer to secret collection of intelligence as well as to covert action. Why might the formal congressional record not be an accurate picture of whether congress intended for the CIA to carry out 15 cover actions?

What provision of the Act could shelter covert action? n ‘‘perform such other functions and duties related to intelligence affecting the national security as the President or the Director of National Intelligence may direct, ’’ 50 U. S. C. § 403 -4 a(d)(4)—was chosen so as not to advertise to the world that the nation was planning to conduct covert operations. 16

What did the CIA general counsel say in 1947? n n Finally, the contemporary term ‘‘covert action’’ had no clearly understood forebear in 1947. While the terms ‘‘operational activities, ’’ ‘‘special operations, ’’ and ‘‘direct activities’’ were all used, they were employed to refer to secret collection of intelligence as well as to covert action. In our opinion, however, either activity would be an unwarranted extension of the functions authorized in Sections [4034 a(d)(4)]. This is based on our understanding of the intent of Congress at 17

adopted by the National Security Council (NSC) at its first meeting, provide? n NSC-4[/]A, which empowered the Secretary of State to coordinate information activities designed to counter communism. A top secret annex took cognizance of the ‘‘vicious psychological efforts of the USSR, its satellite countries, and Communist groups to discredit and defeat the activities of the U. S. and other Western powers. ’’ The NSC determined that ‘‘in the interests of world peace and U. S. national security the foreign information activities of the U. S. government must be supplemented by 18 covert psychological operations

How was this expanded by NSC 10/2? (Which superseded NSC 4[/]A) n The CIA was authorized to undertake economic warfare, sabotage, subversion against hostile states (including assistance to guerrilla and refugee liberation groups), and support of indigenous anti-communist elements in threatened countries. . 19

Office of Special Projects (OSP) n [U]nder the authority of 50 U. S. C. §[4034 a(d)(4)], the NSC ordered the establishment in CIA of the Office of Special Projects (OSP), to conduct covert action. The Chief of OSP was to receive policy guidance from the Secretary of State and the Secretary of Defense. OSP (later, OPC) [Office of Policy Coordination] was to operate 20

The Cold War n n There was little review of CIA covert operations through the 1950 s - why? What does a 1954 report about the CIA tell us the thinking in those days? What is the tension between accountability and secrecy for covert activities? What occupied the CIA in the late 1960 s and 1970? 21

‘‘Plausible Deniability’’ n n What is plausible deniability and how does presidential approval undermine it? How did Congress try to limit plausible deniability in 1974? What is the recourse if the president does not comply with this law? n What does this tell us about questions of whether CIA was authorized to carry out covert actions? How can plausible deniability let subordinates hijack policy? 22

EO 12333 n n Look at the EO What is the legal significance of this all being done as an EO? How much discretion does it leave the president? Does it even have to followed? 23

Could the CIA Authorize Operations That Violate U. S. Law? US v. Lopez-Lima, 738 F. Supp 1404 (1990)

What was defendant charged with? n Specifically, the indictment charges that on or about February 18, 1964, Lopez. Lima ‘‘did unlawfully commit aircraft piracy in that [he and codefendant Enrique Castillo-Hernandez] did seize and exercise control by threat of force and violence, and with wrongful intent, of an aircraft. . . that is, the defendant did force Richard L. Wright at gunpoint to fly 25

How is it that he is on trial in the US? n n Lopez-Lima returned to the United States in 1987. In 1989, the U. S. State Department approached him as a possible source of information about Cuba, at which point the outstanding indictment against him was discovered. Where did he spend most of the previous 20 odd years? n Cuban prison - the US would not help 26

Who did the hijacker say sent him to Cuba? n n CIA Why a hijacking? n Lopez-Lima claims that this CIA operation was designed to look like a hijacking, so that Cuban authorities would not suspect CIA involvement. 27

What is his defense? n n Was hijacking illegal at the time? What did the Church Committee find that supports defendant's theory? n The Church Committee documented numerous activities undertaken by the intelligence community that violated declared policy and law, noting that ‘‘these abuses cannot be regarded as aberrations. ’’ 28

What will the court have to determine to evaluate his defense? n n n Could the CIA authorize illegal activities? Will the CIA be willing to produce information about its agents or activities relating to illegal activities? What will it mean for the prosecution’s case if the judge finds that is plausible that the CIA did send him to Cuba? 29

What caused Congress to try to increase its oversight of the CIA? n CIA covert actions in Chile during the 1960 s and early 1970 s, designed to discredit left-leaning political leaders and to prevent them from assuming power, along with Watergate and the Southeast Asia war, all served to focus public attention on the CIA and crystalize congressional determination to investigate intelligence abuses. 30

The CIA Budget n The 1949 Central Intelligence Agency Act grants expansive authority to the CIA concerning the transfer and use of public funds. The Act states that sums made available to the CIA “may be expended without regard to the provisions of law and regulations relating to the expenditure of Government funds. ” 50 U. S. C. § 3510(b). Moreover, instead of direct appropriations to the CIA, the 1949 Act authorizes the Agency to transfer to and receive from other government agencies “such sums as may be approved” by the Office of Management and Budget (OMB) for any of the functions or activities authorized by the National Security Act of 1947. 50 U. S. C. § 3506(a)(1). Other agencies are also permitted to transfer or receive from the CIA such sums “without regard to any provisions of law limiting or prohibiting transfers between appropriations. ” Thus, funds for the intelligence community are first concealed in various inflated appropriation bills and then secretly transferred by 31