1 17 January 1962 COPY Memorandum Re: Constitutional and Legal B a s i s for So- Called Covert Activities of the Central Intelligence Agency. This memorandum will discuss the constitutional and legal authority f o r the Central h t e l l i g e n c e Agency to engage in covert activities directed towards the imposition of a particular line of political thought on a foreign country. It is understood that c e r t a i n cold-war activities of a covert nature, such as l'blackllpropaganda, commando-type raids, sabotage, and support of g u e r r i l l a activities, have been engaged in by CLA almost f r o m its inception, pursuant t o a n e x p r e s s directive of the National Security Council, and that the Congress h a s repeatedly appropriated funds f o r the support of such activities. I. Constitutional P o w e r s of the President. "As a nation with all the attributes of sovereignty, the United States is vested with all the powers of government n e c e s s a r y to maintain a n effective control of international Burnet v. Brooks, 288 U.S. 378, 396. These powers do not "depend upon the affirmative g r a n t s of the Constitution, United States I' but a r e "necessary Concomitants of nationality. V. Curtiss-Wright Corp., 299 U.S. 304, 318. . I' !'In the preservation of the safety and integrity of the United States and the protection of its responsibilities and obligations as a sovereignty" the constitutional powers of the P r e s i d e n t are broad. 30 0. A. G. 291, 292. "The very delicate, plenary and exclusive power of the P r e s i d e n t as the sole organ ;of the f e d e r a l government in the field of international relations . . . does not r e q u i r e as a basis f o r its e x e r c i s e a n a c t of Congress", although, like all governmental powers, it must be e x e r c i s e d in subordination to any applicable provisions of the Constitution. United States v. Curtiss-Wright Corp., supra, at p. 320. His duty t o take c a r e that the laws be faithfully executed extends not m e r e l y t o e x p r e s s a c t s of Congress, but t o the enforcement of !'the rights, duties, and obligations growing out of the Constitution itself, our international relations, and a l l of the protection implied by the nature of the government under In Re Neagle, 135 U.S. 1, 64. (1890). the Constitution. Examples of the e x e r c i s e of these broad powers are numerous and varied. Their scope may be illustrated by the following: The P r e s i d e n t may take such action as may, in his judgment, be appropriate, including the u s e of force, t o protect American citizens and p r o p e r t y abroad. Fed. Cas. No. 4186 (C. C.S. D. N. Durand v, Hollins Y. (1860)); In Re Neagle, Supra, 2 . .~ . . . . .. . . .,. SkJj(T . . . .. . ,. -... . . . - .. : ' . , ' . . . . ,, I .- -. ..... .. i 1 .. 135 U.S. at 4; Hamilton v. M'Claughry, 136 Fed. 445, 449-50 (D. Kansas, 1905); 11Hackworth, 327-334; VI Id., 464-5. Digest of International Law, Notwithstanding the exclusive power of Congress to declare war, the President m a y repel a r m e d attack and "meet force with force. 668 (1862). I' P r i z e Cases, 2 Black 635, He m a y impose restrictions on the operation of domestic radio stations which he deems n e c e s s a r y t o prevent ,unneutral acts which may endanger our relations with foreign countries. 30 O . A . G . 291. Congress' grants of powers t o executive agencies in a r e a s relating t o the conduct of foreign relations and p r e s e r vation of the nati0,n.a; security - . f r o m external t h r e a t s a r e " I ? . generally couched i n t e r m s which neither limit the powers of the President nor r e s t r i c t his discretion i n the choice of the agency through which he will .exercise these powers. Thus, i n establishing a Department of State i n 1799, Congress directed that the S e c r e t a r y should p e r f o r m duties relating to "such ... matters respecting foreign affairs a s the President of the United States shall assign t o the Department", and should "conduct the business of the department i n such manner as the President shall direct. I' 1 Stat. 28; R. S. 3 d 202, 5 U. S. C. 156. W T More recently, in establishing the National Security Council, Congress gave i t the function of advising the President "with r e s p e c t to the integration of domestic, foreign, and m i l i t a r y policies relating to the national security. 'I , 50 U. S . C. 402 (a). F r o m the beginning of our history a s a nation, i t h a s been recognized and accepted that the conduct of foreign a f f a i r s on occasion r e q u i r e s the use of covert activities, which might be of a quasi-military nature. See, . . e , the a c t s of July I, 1790, 1 Stat. 128, and Mar 1, 1810, sec. 3, 2 Stat. 609. In a m e s s a g e to the ,.House of Representatives declining to f u r n i s h a n account of payments made .for contingent expenses of foreign i n t e r c o u r s e , P r e s i d e n t Polk reviewed that practice and stated: "The experience of e v e r y nation on e a r t h has demonstrated that emergencies may a r i s e i n which i t becomes absolutely n e c e s s a r y f o r the public safety o r the public good to make expenditures the v e r y object of which would be defeated by publicity. 1/ - $ -1/ P r e s i d e n t Polk continued: "Some governments have v e r y l a r g e amounts at t h e i r disposal, and have made vastly g r e a t e r expenditures than the small amounts which have f r o m t i m e to t i m e been accounted for on P r e s i d e n t ' s certificates. In no nation is the application of such s u m s e v e r made 4 ._ .... . . .. . . .. - . .. .... .-:.... . --- .. ...,. . . ". .' ,, ~ .. Footnote 1/ continued: T*S \ .. .. public. In time of war o r impending danger the situation of the country may make it n e c e s s a r y to employ individuals for the purpose of obtaining information o r rendering other important s e r v i c e s who could never be prevailed upon to a c t if they entertained the least apprehension that their names o r t h e i r agency would in any contingency be divulged. So it may often become necessary t o incur an expenditure f o r a n object highly useful to the country; f o r example, the conclusion of a t r e a t y with a barbarian power whose customs require on such occasions the use of presents. But this object might be altogether defeated by the intrigues of other powers if our purposes w e r e to be made known by the exhibition of the original papers and vouchers to the accounting officers of the Treasury. It would be e a s y to specify other cases other c a s e s (sic) which may occur in the history o a g r e a t nation, in i t s intercourse with other nations, wherein it might become absolutely n e c e s s a r y to incur expenditures for objects which could never be accomplished i f i t w e r e suspected in advance that the items of expenditure and the agencies employed would be made public." 4 Richardson, Messages and P a p e r s of Presidents, 431, 435 (April 20, 1846) Compare a l s o Stuart, American Diplomatic and Consular P r a c t i c e (1952) p. 196, (commenting on prevailing diplomatic practice of a l l countries), "actual c a s e s of interference i n the internal affairs of states t o which the envoys'are accredited a r e very numerous. I ' 5 . , . . . .. . . . . . ... . . . .... . . . . .. . . . . .. .. ..... , . . ,. . .. . .. . . .. . ..I. . . '. An e a r l y example f such a s e c r e t operation is afforded by the Lewis and Clark expedition of 1803. That expedition w a s authorized p r i o r to the Louisiana d r c h a s e by a statute providing "That the sum of two thousand five hundred d o l l a r s be, and the s a m e i s hereby appropriated f o r the purpose of extending the external c o m m e r c e of the United States ( 2 Stat. 206). I ' Congress u s e d this cryptic language at the request of P r e s i d e n t J e f f e r s o n because, in the words of a present-day judge, the "expedition, m i l i t a r y in c h a r a c t e r , would e n t e r into lands owned by a foreign nation with which the United States was a t peace 2/ First Trust the utmost s e c r e c y had to be observed. " and - ... Co. of St. P a u l v. Minnesota Historical SOC., 146 F. Supp. 6 5 2 , 656 (D. C. Minn. (1956)), aff'd sub, nom, United States v. First T r u s t Go. of St. Paul, 251 F, 2d 686 (C.A. 8). -2 / I n h i s m e s s a g e to the Congress, President Jefferson stated: The appropriation of $2,500 I f o r the purpose of extending the external commerce of the United States, while understood and considered by t h e Executive a s giving the legislative sanction, would cover the undertaking f r o m notice and prevent the obstructions which inte r e sted individuals might other wise previously p r e p a r e in its way. (1 Richardson, Message and P a p e r s of the P r e s i d e n t s , 352 a t 354. ) :* * - 6 . . , . . . . . . . . . . . ~ . . .. , . . .. __ ...... .. .. .. . ~.. -~ ..... , ....~ . . . . _.._. - ... .. .-. .I.. . '. ! Under modern conditions of "cold war", the President can properly regard the conduct of covert activities such a s a r e described a t the opening of this memorandum a s n e c e s s a r y to the effective and successful conduct of foreign relations and When t h e United the protection of the national security. States is attacked f r o m without o r within, the President may "meet force with force", P r i z e Cases, supra, In waging a world wide contest to strengthen the f r e e nations and contain the Communist nations, and thereby to p r e s e r v e the existence of the United States, the President should be deemed to have comparable authority to m e e t covert activities with covert activities if he d e e m s such action necessary and consistent A s Charles Evans Hughes said with our national objectives. by the Communist bloc, including both open and covert m e a s u r e s , . . . . .. . ., -.. ..- .-..... . ..-. -s ~ '.~... .. . , . . . . : 1. .. . . ... . . . . .. . . . ....., .. I I i The exclusive power of Congress to d e c l a r e war h a s been held not to prevent u s e by the President of f o r c e short of w a r t o protect American citizens and property abroad, A fortiori, it does not prevent h i s u s e of force short of w a r f o r other purposes which he deems n e c e s s a r y to our nationaL survival. In e i t h e r c a s e the magnitude and possible grave international consequences of a particular action may be such as to r e n d e r it d e s i r a b l e f o r the P r e s i d e n t to consult with, o r obtain the approval o r ratification of, the Congress if c i r c u m s t a n c e s p e r m i t such action. But the necessity f o r obtaining such approval does not depend on whether the action is o v e r t o r covert. 11. Statutory Authority T h e r e is no specific statutory authorization to any agency to conduct covert cold war activities. Nor is t h e r e any statutory prohibition, except to the extent, if any, that the prohibitions of the Neutrality Acts, 18 U. S. C. Chapter 45, against performance of certain a c t s by p e r s o n s within the United States might be deemed applicable to such activities Hence the P r e s i d e n t is not re- in p a r t i c u l a r circumstances. stricted by a c t of Congress in authorizing such a c t s , o r in assigning responsibility for them to such agency a s he may P de signate. Congress has authorized the Central Id elligence Agency, "for the purpose of coordinating the intelligence activities of the severa1 government departments and agencies i n the i n t e r e s t of the national security, ' I to p e r f o r m , inter alia, "such other functions and duties related to intelligence affecting the national security as the National Security Council may f r o m t i m e to time direct. I f 50 U. S. C. 403(d) - As previously noted, the National Security Council, which inqludes in its membership the President, the Vice Pr . .. . . . the S e c r e t a r y of State and the S e c r e t a r y of Defense, has o v e r all responsibility f o r advice to the P r e s i d e n t respecting all m a t t e r s "relating to the national security, ,E. . . . . . ,< ir .,. -9- .7 . .. - It 9Wq . . . ........ - ..' / . j . . . ~ .... i 1 We understand that in 1947, S e c r e t a r y of Defense F o r r e s t a l asked the Director of Central Intelligence if CIA would be able to conduct covert cold-war activities, such as black propaganda, commando-type raids, sabotage, and support CIA advised a t that time that it would of g u e r r i l l a warfare. conduct such activities if the National Security Council developed a policy . that - the United States would engage in such covert activities and assigned t h e i r conduct to CIA, and i f the Congress appropriated funds to c a r r y t h e m out. In the l a t t e r p a r t of 1947 the National Security Council developed a directive (NSC 10/2) setting forth a p r o g r a m of covert cold-war activities and assigned that p r o g r a m to the Office of Policy Coordination under the D i r e c t o r of Central Intelligence, with policy guidance f r o m the DepartThe Congress was asked f o r and did a p p r o p r i a t e ment of State. funds to support this p r o g r a m , although, of c o u r s e , only a s m a l l number of congressmen in the Appropriations Committees knew the amount and purpose of the appropriation. The Office of Policy Coordination was subsequently combined with the clandestine intelligence activities in the Office of the Deputy (Plans) of CIA and the cold-war charter w a s assigned -10- S b f y : . . .. . . . .. .. ... . .,. .... .. . ... -,. .- .- - . -. . _... . .I. .. . I to CIA in coordination with the Department of State and Defense by NSC Directive 5412. A significant p a r t of the s t r i c t l y intelligence and counter-intelligence functions of CIA a r e clandestine in nature. It could perhaps be argued t h a t many if not all of the c o v e r t activities assigned to CIA by the directives r e f e r r e d to above a r e a t l e a s t "related" to intelligence affecting the national security within the scope of 50 U. S.C. 403 (d) ( 5 ) in the s e n s e that t h e i r performance may need to b e intimately dovetailed with clandestine intelligence operations, may involve u s e of the s a m e o r s i m i l a r contacts, operatives and methods, 3/ and may yield important intelligence results. Alternatively, - it would a p p e a r that the executive branch, under the direction of the P r e s i d e n t , has been exercising without e x p r e s s statutory authorization a function which is within the constitutional powers of the President, and that the CIA was the agent selected by the P r e s i d e n t to c a r r y out these functions. 3/ The historic relationship between the two types of activity is indicated by the fact that the Office of Strategic S e r v i c e s , CIA'S p r e d e c e s s o r during World W a r 11, engaged both in intelligence work, and in a s s i s t a n c e t o and coordination of local r e s i s t a n c e activities. See Alsop and Braden, Sub Rosa, The 0, S. S. and American Espionage (1946) p. 7. -11- . .. . .. . . - . . - .-.- .- . ..... .... . ... .. . . .- .. _.- . . . .. .- ..... ... .. ., .... . . . . .-. . ! . j ii I i ! Congress has continued over the y e a r s since 1947 to j appropriate funds for the conduct of kuch covert activities. W e understand that the existence of such covert activities h a s been reported on a number of occasions to the leadership of both houses, and to m e m b e r s of the subcommittees of the 4/ A r m e d Services and Appropriations Committees of both houses. It can be said t h a t Congress a s a whole knows that money is appropriated to CIA and knows generally that a portion of it goes f o r clandestine activities, although knowledge of specific activities is r e s t r i c t e d to the group specified above and occasional other m e m b e r s of Congress briefed f o r specific purposes. ... . In effect, therefore, CIA h a s f o r many y e a r s had general funds approval f r o m the Congress to c a r r y 4/ See l e t t e r dated May 2, 1957, f r o m Mr. Allen W. Dulles, D i r e c t o r , CIA to Senator Hennings, F r e e d o m of Information and Secrecy in Government, Hearing before the Subcommittee on Constitutional Rights of the Senate Committee of the Judiciary, 85th Gong. , 2d Sess., p. 376 at 377: "The Director of the Central Intelligence Agency a p p e a r s regularly before established Subcommittees of the Armed Services and Appropriation Committees of the Senate and of the House, and makes available to these subcommittees complete information on Agency activities, personnel and expenditures. No information has e v e r been denied to t h e i r subcommittees. -12- I on covert cold-war activities, which the Executive Branch has the authority and responsibility to direct. I. It is well-established that appropriations for administrative action of which Congress h a s been informed amount to a ratification of o r acquiescence in such action. Brooks v, Dewar, 313 U. S. 354, 361: Fleming v. M o h a w k Co., 331 U.S. 111, 116; s e e also Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275, 293-294;Power Reactor Co. V. Electricians, 367 U. S. 396, 409. Since the circumstances effectively p r e v e n t t h e Congress from making a n e x p r e s s and detailed appropriation f o r the activities of the CIA, the general knowledge of the C o n g r e s s , 5/ and specific knowledge of responsible committee m e m b e r s , - outlined above, are sufficient to render this principle applicable. P r e p a r e d by Office of Legislative Counsel, Department of Justice 5 / Compare the c a s e s of veiled, o r contingent fund, appro-priations r e f e r r e d to in P a r t I. And note the importance placed on the close contact between a n agency and "its11 committees, E. g., Panama Canal Co. v. Grace Line Inc, U.S. 309, 319.- -13- \ , 356