Mary Baldwin College, Staunton VA 24401
by Prof. Gordon L. Bowen, Ph.D.
this page last updated February 12, 2009
Synopsis: Congress and the Presidency struggled to define each branch's influence over Intelligence Operations after 1973.
Background. Many changes in institutional control over US foreign policy grew out of Congressional disaffection with US Vietnam policy, the Watergate affair and the secretive milieu which spawned both. In 1971, the Tonkin Gulf Resolution was repealed; the 1972 Case Act required timely reports to Congress about new executive agreements; the 1973 War Powers Resolution imposed time limits on presidents' authority to use force. In 1974-76, restrictions on presidential control of arms exports were enacted through the 1974 Arms Export Control Act. Congressional reassertiveness also was extended to the US foreign aid laws, demanding that security aid advance human rights concerns (i.e., section 502(b) of the Foreign Assistance Act, 1974).
Reform of Intelligence Operations. Another problem a Congressional majority saw was in intelligence operations such as those conducted against Chile, 1970-73. New Congressional oversight of intelligence agencies enjoyed strong bipartisan support after investigations revealed details of what had gone on during Vietnam War. A Senate Select Committee, headed by Idaho Sen. Frank Church (pictured below), and other Congressional inquiries fleshed in these details.
Sen. Frank Church (D-ID)
Embarrassing revelations about the CIA included: the Phoenix Program in Vietnam, assassination attempts against Castro and others, Presidential direction of covert actions against an elected government in Chile (1970-73), and domestic surveillance against Americans under COINTELPRO and other programs. Congress as a whole reacted to what some members had come to perceive as the CIA's "rogue elephant" behavior. Steps were taken intended to stop the agency from running amok outside law and legislative control. Several efforts in Congress aimed at regaining legislative oversight over the CIA and other intelligence agencies.
A. Changes pertinent to Chile: Congress imposed distance between the US and the military government of Gen. Augusto Pinochet in Chile.
1. The first US Congressional action against Chile: In 1974, in PL 93-189, section 35, Congress had called for the release of prisoners there and had urged President Ford to pressure Pinochet to treat prisoners humanely.
2. US appropriations passed for 1974 restricted US military aid to Chile to no more than $25 million; in 1975, economic aid was limited to "no more than $90 million."
3. Early in 1976, all military aid was cut off, all US training of Chilean officers was suspended, and economic aid was limited to no more than $27.5 million.
4. Additionally, US military aid to Chile was suspended by an act of Congress (PL 94-329), in late 1976.
5. During the Carter period, further charges against the Pinochet government were mounted, both by international human rights groups and by the new Democrat administration. US military aid to Chile was terminated by President Carter's administration shortly after he assumed office (January 1977), due to continued policies of gross violations of human rights by the government there.
6. Correct, if not close, relations were restored in the early years of the Reagan administration, 1981-86. However, continuing Chilean repression led Reagan and his successor, George H.W. Bush to pressure the Pinochet regime to restore democracy; in Spring 1990 an elected government took office there.
B. Changes governing US Intelligence Laws more generally:
1. On December 30, 1974, the Foreign Assistance Act of 1961 was amended at section 662(a) to require that "appropriate committees" of the Congress be notified of covert actions conducted "by or on behalf of the CIA" regarding the "description and scope" of all covert actions. This Public Law 93-559 was known as the Hughes-Ryan Amendment. This law also required that any particular covert action take place only when it is "important to the national security of the U.S." A second section, 666(b), qualified this by limiting such timely reports to the Congress only to times of peace, saying that those provisions in 666(a) "shall not apply during military operations initiated by the United States under a declaration of war approved by the Congress or an exercise of powers by the President under the War Powers Resolution."
U.S. Rep. Leo Ryan (D-CA)
2. In 1976-77, Permanent Intelligence Committees were created to oversee the CIA and other intelligence agencies, but other committees with foreign policy responsibilities also continued to demand to be briefed during the Carter years.
3. In 1980, the number of these "appropriate committees" was whittled down to two (the intelligence committees), and that in special cases requiring secrecy only the chair of them plus the ranking minority member, plus the Speaker and minority leader of the House, and the majority and minority leaders of the Senate would be informed.
4. Congressional actions after 1974 rarely terminated covert operations. One case where such action did occur was that of the 1975 "Tunney Amendments" barring secret US aid to combatants in Angola, a position reiterated in 1976 by the Clark Amendments to the Defense Appropriations bill. In 1985, at Pres. Reagan's urging, this prohibition was repealed.
5. In U.S. Nicaragua policy in the 1984-86 period, and in the related Iran-Contras scandal of 1986-87, Congressional oversight under these CIA reforms was tested. The 1987 Congressional investigation committee found that CIA Director William Casey had displayed a "contempt for the democratic process" (Report of: 375). It argued that the 1947 National Security Act had been violated when Congress was not notified about covert actions ( 415). It contended that Presidential Findings authorizing US covert actions --legally required by a 1980 statute-- were not submitted in a timely manner to Congress; that secret "Findings" were used to ignore other applicable US laws (380-381), and that the affair was "conducted and covered up...in violation of the Constitution and of the applicable laws and regulations" (411). Though senior officials in the National Security Council resigned and staffers (e.g., Col. Oliver North) were prosecuted criminally, no elected officials were held accountable for the Iran-Contras violations.
6. In response to the Iran-Contras scandal, President Reagan issued National Security Decision Directive (NSDD) 266, prohibiting future covert actions conducted by members of the National Security Council staff; and NSDD 286, prohibiting the use of "oral Findings" and "retroactive Findings" as the legal authority for covert actions. In 1991, Congress and President George H. W. Bush signed into law the 1991 Intelligence Oversight Act. It required all future covert actions to be authorized in advance by the issuing of a written presidential Finding; that no Finding may authorize intelligence agencies to break U.S. laws or the U.S. Constitution; that Findings must reveal the name of third countries that participate in U.S. covert actions; and that all Findings must be sent to the Intelligence Committees of the U.S. Congress.
7. This tightly restricted policy was sustained throughout the 1990s, despite criticisms to the effect that it and other limitations on covert operations (such as a ban on working with known human rights violators, as in Guatemala) hampered the defense of U.S. interests. In 1998, Pres. Clinton accepted a legal line of reasoning that suggested that assassination remained an inherent power of the President when undertaken in defense of the nation consistent with his Commander in Chief power: Clinton unsuccessfully targeted Osama bin Laden in 1998. After the Sept. 11, 2001 attack on the U.S., in late October 2001 Pres. George W. Bush further acted in this direction, authorizing an ambitious use of intelligence operatives in war fighting against terrorism. Assassination of dangerous terrorists was reported to have been authorized in a Fall 2001 Finding, and indirectly through the National Security Presidential Directive No. 9. While the broad contours of this Directive have been hinted at by a White House press release and by commentary released in association with the final Report of the 9/11 Commission, the document itself remains secret. For a thorough timeline on the matter of assassination, follow this link.
Cecil Crabb, Jr. and Pat Holt, Invitation to Struggle: Congress, the President and Foreign Policy, fourth edition (Washington D.C.: Congressional Quarterly, 1992).
National Commission on Terrorist Attacks Upon the United States, The 9.11 Report (NY: St. Martins, 2004). An online version of the Commission's final report is available.
U.S. House of Representatives Select Committee to Investigate Covert Arms Transactions with Iran and U.S. Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition, Report of the U.S. Congressional Committees Investigating the Iran-Contra Affair, House Report 100-433 / Senate Report 100-216 (Washington: U.S. Government Printing Office, November 1987).
Lawrence Walsh, Independent Counsel, Final Report of the Independent Counsel for Iran/Contra Matters: vl: Investigations and Prosecutions (Washington DC: U.S. Court of Appeals for the District of Columbia, August 4, 1993)
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