Covert Action: Legislative Background and Possible Policy Questions
Prepared for Members and Committees of Congress
Published reports have suggested that in the wake of the 9/11 terrorist attacks, the Pentagon has
expanded its counter-terrorism intelligence activities as part of what the Bush Administration
terms the global war on terror. Some observers have asserted that the Department of Defense
(DOD) may be conducting certain kinds of counterterrorism intelligence activities that would
statutorily qualify as “covert actions,” and thus require a presidential finding and the notification
of the congressional intelligence committees.
Defense officials assert that none of DOD’s current counter-terrorist intelligence activities
constitute covert action as defined under the law, and therefore, do not require a presidential
finding and the notification of the intelligence committees. Rather, they contend that DOD
conducts only “clandestine activities.” Although the term is not defined by statute, these officials
characterize such activities as constituting actions that are conducted in secret, but which
constitute “passive” intelligence information gathering. By comparison, covert action, they
contend, is “active,” in that its aim is to elicit change in the political, economic, military, or
diplomatic behavior of a target.
Some of DOD’s activities have been variously described publicly as efforts to collect intelligence
on terrorists that will aid in planning counter-terrorism missions; to prepare for potential missions
to disrupt, capture or kill them; and to help local militaries conduct counter-terrorism missions of
Senior U.S. intelligence community officials have conceded that the line separating Central
Intelligence Agency (CIA) and DOD intelligence activities has blurred, making it more difficult
to distinguish between the traditional secret intelligence missions carried out by each. They also
have acknowledged that the U.S. Intelligence Community confronts a major challenge in
clarifying the roles and responsibilities of various intelligence agencies with regard to clandestine
activities. Some Pentagon officials have appeared to indicate that DOD’s activities should be
limited to clandestine or passive activities, pointing out that if such operations are discovered or
are inadvertently revealed, the U.S. government would be able to preserve the option of
acknowledging such activity, thus assuring the military personnel who are involved some
safeguards that are afforded under the Geneva Conventions. Covert actions, by contrast,
constitute activities in which the role of the U.S. government is not intended to be apparent or to
be acknowledged publicly. Those who participate in such activities could jeopardize any rights
they may have under the Geneva Conventions, according to these officials.
This report examines the statutory procedures governing covert action and associated questions to
consider. This report will be updated as warranted.
Introduc tion ..................................................................................................................................... 1
Backgr ound ..................................................................................................................................... 1
Post 9/11 Concerns..........................................................................................................................3
Current Statute Governing Covert Actions......................................................................................5
Exceptions Under the Statutory Definition of Covert Action..........................................................6
Traditional Military Activities.........................................................................................................6
Routine Support of Traditional Military Activities..........................................................................7
Possible Policy Issues for the 111th Congress..................................................................................7
Author Contact Information............................................................................................................8
Some observers assert that since 9/11 the Pentagon has begun to conduct certain types of
counterterrorism intelligence activities that may meet the statutory definition of a covert action.
The Pentagon, while stating that it has attempted to improve the quality of its intelligence
program in the wake of 9/11, contends that it does not conduct covert actions.
Congress in 1990 toughened procedures governing intelligence covert actions in the wake of the
Iran-Contra affair, after it was discovered that the Reagan Administration had secretly sold arms
to Iran, an avowed enemy that had it branded as terrorist, and used the proceeds to fund the
Nicaraguan Democratic Resistance, also referred to by some as “Contras.” In response, Congress
adopted several statutory changes, including enacting several restrictions on the conduct of covert
actions and establishing new procedures by which Congress is notified of covert action programs.
In an important change, Congress for the first time statutorily defined covert action to mean “an
activity or activities of the United States Government to influence political, economic, or military
conditions abroad, where it is intended that the role of the United States Government will not be 1
apparent or acknowledged publicly.”
The 1991 statutory changes remain in effect today. This report examines the legislative
background surrounding covert action and poses several related policy questions.
In 1974, Congress asserted statutory control over covert actions in response to revelations about
covert military operations in Southeast Asia and other intelligence activities. It approved the
Hughes-Ryan Amendment to the Foreign Assistance Act of 1961 requiring that no appropriated
funds could be expended by the CIA for covert actions unless and until the President found that
each such operation was important to national security, and provided the appropriate committees 2
of Congress with a description and scope of each operation in a timely fashion. The phrase
“timely fashion” was not defined in statute.
In 1980, Congress endeavored to provide the two new congressional intelligence committees with 3
a more comprehensive statutory framework under which to conduct oversight. As part of this
effort, Congress repealed the Hughes-Ryan Amendment and replaced it with a statutory
requirement that the executive branch limit its reporting on covert actions to the two intelligence
committees, and established certain procedures for notifying Congress prior to the
implementation of such operations. Specifically, the statute stipulates that if the President
determines it is essential to limit prior notice to meet extraordinary circumstances affecting the
vital interests of the United States, the President may limit prior notice to the chairmen and
ranking minority members of the intelligence committees, the speaker and minority leader of the
1 Sec. 503(e) of the National Security Act of 1947 [50 U.S.C. 413b].
2 P.L. 93-559 (1974). The “appropriate committees of Congress” was interpreted to include the Committees on Armed
Services, Foreign Relations (Senate) and Foreign Affairs (House), and Appropriations of each House of Congress, a
total of six committees.
3 The Senate Select Committee on Intelligence was established in 1976. The House Permanent Select Committee on
Intelligence was established in 1977.
House, and the majority and minority leaders of the Senate—a formulation that has become
known as the “Gang of Eight.” If prior notice is withheld, the President is required to inform the
Committees in a “timely fashion” and provide a statement of the reasons for not giving prior 4
In 1984, in the wake of the mining of Nicaraguan harbors in support of the Nicaraguan
Democratic Resistance, the chairman and vice chairman of the Senate Select Committee on
Intelligence signed an informal agreement—which became known as the “Casey Accords”—with
then-Director of Central Intelligence (DCI) William Casey establishing certain procedures that
would govern the reporting of covert actions to Congress. In 1986, the committee’s principals and
the DCI signed an addendum to the earlier agreement, stipulating that the Committee would
receive prior notice if “significant military equipment actually is to be supplied for the first time
in an ongoing operation ... even if there is no requirement for separate higher authority or
Presidential approval.” This agreement reportedly was reached several months after President
Reagan signed the January 17, 1986, Iran Finding which authorized the secret transfer of certain 5
missiles to Iran.
Following the Iran-Contra revelations, President Ronald Reagan in 1987 issued National Security
Decision Directive 286 prohibiting retroactive findings and requiring that findings be written. The
executive branch, without congressional consent, can revise or revoke such National Security
In 1988, acting on a recommendation made by the Congressional Iran-Contra Committee, the
Senate approved bipartisan legislation that would have required that the President notify the
congressional intelligence committees within 48 hours of the implementation of a covert action if
prior notice had not been provided. The House did not vote on the measure.
Still concerned by the fall-out from the Iran-Contra affair, Congress in 1990 attempted to tighten
its oversight of covert action. The Senate Intelligence Committee approved a new set of statutory
reporting requirements, citing the ambiguous, confusing and incomplete congressional mandate
governing covert actions under the then-current law. After the bill was modified in conference, 6
Congress approved the changes.
President George H.W. Bush pocket-vetoed the 1990 legislation, citing several concerns,
including conference report language indicating congressional intent that the intelligence
committees be notified “within a few days” when prior notice of a covert action was not 7
provided, and that prior notice could only be withheld in “exigent circumstances.” The
legislation also contained language stipulating that a U.S. government request of a foreign
government or a private citizen to conduct covert action would constitute a covert action.
In 1991, after asserting in new conference language its intent as to the meaning of “timely
fashion” and eliminating any reference to third-party covert action requests, Congress approved 8
and the President signed into law the new measures. President Bush noted in his signing
4 P.L. 96-450 (1980).
5 W. Michael Reisman and James E. Baker, Regulating Covert Action, 1992, (Yale University Press) pp. 131-132.
6 S. 2834.
7 Memorandum of Disapproval issued by President George H.W. Bush, November 30, 1990.
8 P.L. 102-88. See covert action requirements in Sec. 503 of the National Security Act of 1947 [50 U.S.C. 413b].
statement his satisfaction that the revised provision concerning “timely” notice to Congress of
covert actions incorporates without substantive change the requirement found in existing law, and
that any reference to third-party requests had been eliminated. Those covert action provisions 9
remain in effect today.
Since the 9/11 terrorist attacks, concerns have surfaced with regard to the Pentagon’s expanded
intelligence counterterrorism efforts. Some lawmakers reportedly have expressed concern that the
Pentagon is creating a parallel intelligence capability independent from the CIA or other 10
American authorities, and one that encroaches on the CIA’s realm. It has been suggested that the
Pentagon has adopted a broad definition of its current authority to conduct “traditional military 11
activities” and “prepare the battlefield.” Senior Defense Department officials reportedly have
responded that the Pentagon’s need for intelligence to support ground troops after 9/11 requires a
more extensive Pentagon intelligence operation, and they suggest that any difference in DOD’s
approach is due more to the amount of intelligence gathering that is necessarily being carried out, 12
rather than to any difference in the activity it is conducting. These same officials, however, also
reportedly contend that American troops were now more likely to be working with indigenous
forces in countries like Iraq or Afghanistan to combat stateless terrorist organizations and need as 13
much flexibility as possible.
Recent media reports have stated that the U.S. military since 2004 has used broad, secret
authority to carry out nearly a dozen previously undisclosed attacks against Al Qaeda and other 14
militants in Syria, Pakistan and elsewhere. According to other media reports, DOD is paying
9 Although the covert action statute has remained virtually unchanged, Congress has addressed some related concerns.
The FY2004 defense authorization law (P.L. 108-136) included a provision requiring the Secretary of Defense to report
to Congress on the Special Operations Forces’ changing role in counterterrorism, and on the implications of those
changes, if any, on the Special Operations command. Also included was a provision requiring that any Special
Operations Command-led missions be authorized by the President or the Secretary of Defense. In the 2004 intelligence
authorization law, conferees reaffirmed the “functional definition of covert action” and cited the “critical importance to
the requirements for covert action approval and notification” contained in the 1991 intelligence authorization law. For a
more detailed discussion of these and related issues, see Helen Fessenden, CQ Weekly, “Intelligence: Hill’s Oversight
Role At Risk, March 27, 2004, p. 734. In the FY2009 Duncan Hunter National Defense Authorization Act, Congress
increased, from $25 to $35 million, the amount of annually authorized funds available to the Secretary of Defense, with
the concurrence of the relevant Ambassador, “...to provide support to foreign forces, irregular forces, groups, or
individuals supporting or facilitating ongoing military operations by United States special operations forces to combat
terrorism.” Congress also extended the Defense Secretary’s authority to spend such funds through fiscal year 2011.
Under previously existing law, the Secretary of Defense was required to notify the congressional defense committees
“... expeditiously, and in any event in not less than 48 hours, of the use of such authority with respect to that operation.”
Under the new law, the Secretary is required to notify the committees within 48 hours of the use of such authority.
Congress reaffirmed that the Secretary’s authority does not constitute the authority to conduct a covert action. See
Section 1208, P.L. 110-417.
10 Eric Schmitt, New York Times, “Clash Forseen Between CIA and Pentagon,” May 10, 2006, p 1. For a discussion of
this and related issues, see Jennifer D. Kibbe, “Covert and Action and the Pentagon,” Intelligence and National
Security, February, 2007.
14 See Eric Schmitt and Mark Mazzetti, New York Times, “Secret Order Lets U.S. Raid Al Qaeda in Many Countries,”
November 10, 2008, p. A-1
private contractors in Iraq to produce news stories and other media products to “engage and
inspire” the local population to support U.S. objectives and the Iraqi government. The products 15
may or not be non-attributable to coalition forces.
Adding even more complexity to DOD and CIA mission differences, CIA Director Michael
Hayden reportedly has stated that it has become more difficult to distinguish between traditional
secret intelligence missions carried out by the military and those by the CIA and that any 16
problems resulting from overlapping missions will be resolved case-by-case. More recently,
General James R. Clapper, Jr., the Pentagon’s Under Secretary of Defense for Intelligence,
testified before the Senate Armed Services Committee that within the statutory context of the
meaning of covert action, “covert activities are normally not conducted ... by uniformed military 17
forces.” In written responses to questions posed by the Senate Armed Services Committee in
advance of the hearing, General Clapper asserted that it was his understanding that “military
forces are not conducting ‘covert action,’” but are instead confining their actions to clandestine 18
activities. Although testifying that the term “clandestine activities” is not defined by statute, he
characterized such activity as consisting of those actions that are conducted in secret, but which
constitute “passive” intelligence information gathering. By contrast, covert action, he suggested,
is “active,” in that its aim is to elicit change in the political, economic, military, or diplomatic 19
behavior of a target. In comments before the committee, he further noted that clandestine 20
activity can be conducted in support of a covert activity. He also distinguished between a covert
action, in which the government’s participation is unacknowledged, and a clandestine activity,
which although intended to be secret, can be publicly acknowledged if it is discovered or 21
inadvertently revealed. Being able to publicly acknowledge such an activity provides the
military personnel who are involved certain protections under the Geneva Conventions, according
to General Clapper, who suggested that those who participate in covert actions could jeopardize
any rights they may have under the Geneva Conventions. He recommended “that, to the
maximum extent possible, there needs to be a line drawn (between clandestine and covert 22
activities) from an oversight perspective and as well [sic] as a risk perspective.”
Some observers suggest that Congress needs to increase its oversight of military activities that
some contend may not meet the definition of covert action, and may therefore, be exempt from
15 See Karen DeYoung and Walter Pincus, Washington Post, “U.S. to fund Pro-American Publicity in Iraqi Media,”
October 3, 2008, p. A-1.
16 Ibid. The Department of Defense makes the following distinction between a clandestine operation and a covert
action: a clandestine operation is an operation sponsored or conducted by governmental departments or agencies in
such a way as to assure secrecy or concealment. Such an operation differs from a covert action in that emphasis is
placed on concealment of the operation rather than on the concealment of the identity of the sponsor. According to
DOD, in special operations, an activity may be both covert and clandestine and may focus equally on operational
considerations and intelligence-related activities. See “Department of Defense Dictionary of Military and Associated
Terms,” Joint Publication 1-02, August 8, 2006.
17 See U.S. Senate Armed Services Committee hearing transcript on Department of Defense March 27, 2007.
18 See Advanced Questions for Lieutenant General James Clapper USAF (Ret.), Nominee for the Position of Under
Secretary of Defense for Intelligence, at http://www.armed-services.senate.gov, Hearings, March 27, 2007, Statement
of James R. Clapper, Jr.
19 See U.S. Senate Armed Services Committee hearing transcript on Department of Defense, March 27, 2007, p. 23.
the degree of congressional oversight accorded to covert actions. Others contend that increased 23
oversight would hamper the military’s effectiveness.
The current statute with regard to covert action remains virtually unchanged since it was signed 24
into law in 1991. In essence it codified elements of the “Casey Accords,” the President’s 1988
national security directive and various legislative initiatives.
The legislation approved that year, according to the conferees,25 for the first time imposed the
following requirements pertaining to covert action:
• A finding must be in writing.
• A finding may not retroactively authorize covert activities which have already
• The President must determine that the covert action is necessary to support
identifiable foreign policy objectives of the United States.
• A finding must specify all government agencies involved and whether any third
party will be involved.
• A finding may not authorize any action intended to influence United States
political processes, public opinion, policies or media.
• A finding may not authorize any action which violates the Constitution of the
United States or any statutes of the United States.
• Notification to the congressional leaders specified in the bill must be followed by
submission of the written finding to the chairmen of the intelligence committees.
• The intelligence committees must be informed of significant changes in covert
• No funds may be spent by any department, agency or entity of the executive
branch on a covert action until there has been a signed, written finding.
The term “covert action” was defined for the first time in statute to mean “... an activity or
activities of the United States Government to influence political, economic, or military conditions
abroad, where it is intended that the role of the United States will not be apparent or 26
In 1991, Congressional conferees said this new definition was intended to clarify understandings
of intelligence activities requiring the President’s approval, not to relax or go beyond previous
understandings. Conferees also signaled their intent that government activities aimed at
misleading a potential adversary to the true nature of U.S. military capabilities, intentions or
23 Helen Fessenden, CQ Weekly, “Intelligence: Hill’s Oversight Role At Risk,” March 27, 2004, p. 734.
24 Sec. 503 of the National Security Act of 1947 [50 U.S.C. 413b].
25 Joint Explanatory Statement of the Committee of Conference, H.R. 1455, July 25, 1991.
operations, for example, would not be included under the definition. And they stated that covert
action does not apply to acknowledged U.S. government activities which are intended to
influence public opinion or governmental attitudes in foreign countries. To mislead or to
misrepresent the true nature of an acknowledged U.S. activity does not make it a covert action, 27
according to the conferees.
In approving a statutory definition of covert action, Congress also statutorily stipulated four
categories of activities which would not constitute covert action. They are: (1) activities the
primary purpose of which is to acquire intelligence, traditional counterintelligence activities,
traditional activities to improve or maintain the operational security of U.S. government
programs, or administrative activities; (2) traditional diplomatic or military activities or routine
support to such activities; (3) traditional law enforcement activities conducted by U.S.
government law enforcement agencies or routine support to such activities; (4) activities to
provide routine support to the overt activities (other than activities described in the first three 28
categories) of other U.S. government agencies abroad.
This report addresses the second category of activities—traditional military activities and routine
support to those activities.
It is the intent of the conferees that “traditional military activities” include activities by
military personnel under the direction and control of a United States military commander
(whether or not the U.S. sponsorship of such activities is apparent or later to be
acknowledged) preceding and related to hostilities which are either anticipated (meaning
approval has been given by the National Command Authorities for the activities and or
operational planning for hostilities) to involve U.S. military forces, or where such hostilities
involving United States military forces are ongoing, and, where the fact of the U.S. role in
the overall operation is apparent or to be acknowledged publicly. In this regard, the conferees
intend to draw a line between activities that are and are not under the direction and control of
the military commander. Activities that are not under the direction and control of a military 29
commander should not be considered as “traditional military activities.”
29 Joint Explanatory Statement of the Committee of Conference, H.R. 1455, July 25, 1991.
Conferees further stated that whether or not activities undertaken well in advance of a possible or
eventual U.S. military operation constitute “covert action” will depend in most cases upon
whether they constitute “routine support” and referenced the report accompanying the Senate bill 30
for an explanation of the term.
The report accompanying the Senate bill31 states:
The committee considers as “routine support” unilateral U.S. activities to provide or arrange
for logistical or other support for U.S. military forces in the event of a military operation that
is to be publicly acknowledged. Examples include caching communications equipment or
weapons, the lease or purchase from unwitting sources of residential or commercial property
to support an aspect of an operation, or obtaining currency or documentation for possible
operational uses, if the operation as a whole is to be publicly acknowledged.
The report goes on to state:
The committee would regard as “other-than-routine” support activities undertaken in another
country which involve other than unilateral activities. Examples of such activity include
clandestine attempts to recruit or train foreign nationals with access to the target country to
support U.S. forces in the event of a military operation; clandestine [efforts] to influence
foreign nationals of the target country concerned to take certain actions in the event of a U.S.
military operation; clandestine efforts to influence and effect [sic] public opinion in the
country concerned where U.S. sponsorship of such efforts is concealed; and clandestine
efforts to influence foreign officials in third countries to take certain actions without the
knowledge or approval of their government in the event of a U.S. military operation.
As the congressional conferees declared in 1991, timing of such activities—whether proximate to
a military operation, or well in advance—does not define “other-than-routine” support of military
activities. Rather, whether such activities constitute “other-than-routine” support, and thus
constitute covert action, will depend, in most cases, on whether such an activity is unilateral in
nature, that is, whether U.S. government personnel conduct the activity, or whether they enlist the
assistance of foreign nationals.
The lines defining mission and authorities with regard to covert action are less than clear. The th
lack of clarity raises a number of policy questions for the 111 Congress, including the following
far from exclusive list.
• How should Congress define its oversight role? Which committees should be
• Can the U.S. military improve the effectiveness of its intelligence operations
without at some point enlisting the support of foreign nationals in such a way that
31 S.Rept. 102-85, S. 1325, 102nd Congress, 1st Session (1991).
such activity could be viewed as “non-routine support” to traditional military
activities, that is, a covert action?
• Is it appropriate to view U.S. counterterrorism efforts in the context of a global
battlefield and to view the military as having the authority to “prepare” that
battlefield, and can “anticipated” military action precede the onset of hostilities
by months or years?
• Is it appropriate to view the military as being involved in “a war” against
terrorists, and thus its activities as constituting “traditional military activities” as
it wages that war?
• By asserting that its activities do not constitute covert actions, is the Pentagon
trying to avoid the statutory requirements governing covert action, including a
signed presidential finding, congressional notification, and oversight by the
congressional intelligence committees? Or, as Pentagon officials suggest, is
DOD, in the wake of 9/11, fulfilling a greater number of intelligence needs
associated with combating terrorism that are sanctioned in statute and do not fall
under the statutory definition of covert action?
• Since 1991, when Congress last comprehensively addressed the issue of covert
action, has the environment in which the U.S. military operates changed
sufficiently to warrant a review of the statute that applies to covert actions?
In his 1991 signing statement, President George H.W. Bush argued that Congress’s definition of
“covert action” was unnecessary. He went on to state that in determining whether particular
military activities constitute covert actions, he would continue to bear in mind the historic
missions of the Armed Forces to protect the United States and its interests, influence foreign
capabilities and intentions, and conduct activities preparatory to the execution of operations.
Specialist in Intelligence and National Security