Chapter 15 - Covert Action

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Chapter 15 - Covert Action
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Covert Action

• What was Air America?
• What is the downside of covert companies?
• Somoza provided based in Nicaragua to attack Cuba
• How did one port town come full circle?
• What are the risk of covert operations?
• Who was Manual Noriega?
• Why do covert operations make you keep bad
  company?

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Neutrality Act of 1794

• 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 years, or both.

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What did Jefferson say about the Neutrality Act?

• 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 Congress
  alone and not to the citizens individually.

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Does the Neutrality Act Apply to the President?

• What if the president says it is alright for a
  private group to military action, say rescuing a
  hostage?
• What about private companies training foreign
  armed forces to fight our friends?
• What if we are at war?
• ...people with whom the United States is at
  peace...

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What is the Logan Act?

• Congress passed the Logan Act in 1799 to
  criminalize unauthorized efforts by U.S. citizens
  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. . . .
• Could this have been used against Jane Fonda in
  the Vietnam War?
• What about Sean Penn visiting Iraq?
• Are there 1st amendment issues?
• Has the law been enforced?

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Implementing 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?
• Why might the formal congressional record not be
  an accurate picture of whether congress intended
  for the CIA to carry out cover actions?
• Fifth Function - the CIA may ...perform such
  other functions and duties related to
  intelligence affecting the national security as
  the President or the Director of National
  Intelligence may direct.
• What did the CIA general counsel say in 1947?

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NSC

• What did annex NSC-4/A, adopted by the National
  Security Council (NSC) at its first meeting,
  provide?
• How was this expanded by NSC-10/2?
• Were these approved by President Truman?

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Plausible Deniability

• What is plausible denial 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?
• What does this tells about questions of whether
  CIA was authorized to carry our covert actions?

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US v. Lopez-Lima, 738 F.Supp 1404 (1990)

• What was defendant charged with?
• How is it that he is on trial in the US?
• Where did he spend most of the previous 20 odd
  years?
• Who did the hijacker say sent him to Cuba?
• Why?
• Why a hijacking?

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Strategy of the Defense

• What is the defense?
• What is the real purpose of the defense?
• Does the CIA want to provide the information to
  support this defense?
• What is the judge supposed to do if the legal
  effect of the agency not complying with a
  discovery order because the information is
  classified means that the defendant cannot mount
  an effective defense?

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What is the Materiality Test?

• What does the judge have to evaluate to determine
  if the information is essential to the defense?
• In this case, is the information essential to the
  defense if the CIA did not have the authority to
  authorize the hijacking?
• Can the defendant claim detrimental reliance?

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What was the CIA's Authority in 1964?

• What does Executive Order 12,333 provide?
• Does this really tell us what the law is? How
  can the president create an exception to this
  executive order?
• Since Executive Order 12,333 was not signed in
  1964, what do we need to know about it?
• What did the Church Committee find that supports
  defendant's theory?
• Even if the order was new policy, what else does
  the judge have to determine?

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NSC Precedent

• Why is Section 5 and NSC-4/A important in the
  court's analysis?
• How was this expanded in National Security
  Council Directive 5412-1?
• Did the CIA have to clear its actions with the
  Department of Justice?
• Was there evidence that the agency carried out
  activities that broke laws?
• What is the evidence that Congress did not care?

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Post-Nixon

• How did the Hughes-Ryan Amendment change this in
  1974?
• What prompted this amendment?
• What did the court find about the authority of
  the CIA to authorize the hijacking?
• What of the claims by the administrative that if
  it had authorized it, that would have been
  illegal and that defendant cannot rely on the
  authorization?

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Defendant's Burden

• What else does the court say the defendant must
  show to use this defense?
• What will he need to do that?
• How does this put the CIA in a bind?
• Judge Ryskamp tossed out the air piracy charge
  during a two-day hearing on whether the
  defendant's right to a speedy trial had been
  violated.

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The Cold War

• There was little review of CIA covert operations
  through the 1950s - 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?

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Chile

• What was the CIA doing in Chile in 1970 and 1973?
• Why were did we care about Allende?
• Who came to power in 1973?
• Why was our relationship with him problematic?

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The Church Committee 1976

• What was the Church Committee most concerned
  with?
• What principles did it establish for covert
  activities?
• Must be exceptional, not routine
• Must be consistent with American principles
• No clandestine funding FOR bad guys who do bad
  things just because they are on our side
• Congress has to decide on that
• Should consider long term consequences of the
  actions

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Procedural Limits on Covert Action

• What procedural limits did it recommend?
• Everything is reported to the congressional
  oversight committee before it is done
• Unexpected actions can only be funded from a
  fixed contingency fund, must be reported, and the
  fund will not be topped up until approved by the
  committee
• How did Ford and Carter defuse the pressure for
  congressional action?

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Statutory Changes

• Is the proposed list of banned activities, page
  393, realistic?
• Was Congress able to pass this list and get it
  signed into law?

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Intelligence Oversight Act of 1980

• Review this act - it was all the formal
  legislation that resulted from the Church
  Committee
• What are the duties?
• What are limitations of the Act?
• Does it require congressional permission for
  covert activities?
• What is the duty of the House and Senate?
• Which excuse for reporting to congress did this
  Act eliminate?

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Executive Orders implementing the Church
Committee report

• Why did Ford and Carter want to do this by
  executive order rather than legislation?
• What was Executive Order No. 11,905
• Operations Advisory Group
• What did Executive Order No. 12,036 do?
• Replaced OAG with Special Coordination Committee
• What does Executive Order 12,333 do?

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Review and Implementation

• What was the criticism of the reviewing role of
  the NSC?
• What language did Regan leave out of Carter's
  definition of covert activity?
• Is this legally significant?
• What was the purpose of the intelligence
  oversight board (IOB) as constituted by Executive
  Order No. 12,334?