mittees. The provision clearly implies that the CIA is authorized to plan and conduct covert action. The Association of the Bar of the City of New York has concluded, in fact, that the provision serves as a "clear Congressional authorization for the CIA to conduct covert activities.” 20 In sum, the history of Congressional action since 1947 makes it clear that Congress has both acknowledged and ratified the atuhority of the CIA to plan and conduct covert action. III. Conclusions There is ample legal authority for the Central Intelligence Agency to plan and conduct covert action in foreign countries. First, it is within the inherent constitutional authority of the President with respect to foreign affairs to delegate an executive agency, such as the CIA, the responsibility for planning and conducting such activities; in fact, by means of various National Security Council Directives, and National Security Decision Memorandum 40 (issued by the President himself), he has lawfully delegated this responsibility to the CIA. Second, the National Security Act of 1947 authorizes the CIA, at the direction of the National Security Council, to engage in covert action in foreign countries. The legislative history of this statute, particularly in the House of Representatives, gives support to this conclusion. Third, the 28-year history of Congressional action with respect to the CIA clearly establishes that Congress has ratified the authority of the Agency to plan and conduct covert action. MITCHELL ROGOVIN, 20 The Central Intelligence Agency: Oversight and Accountability, by the Committee on Civil Rights and the Committee on International Human Relations of the Association of the Bar of the City of New York (1975), p. 15. EXHIBIT 2 CONSTITUTIONAL AND STATUTORY AUTHORITY TO CONDUCT FOREIGN INTELLIGENCE ACTIVITIES Authority for Activities Relating to Collection of Foreign Intelligence Authority To Engage in Covert Operations Limitations on the Authority To Reorganize the Civilian Intelligence Community I. INTRODUCTION This research study was made at the request of the IC Coordinating Staff and based on a recommendation by the General Counsel. It is divided into three parts: A-Authority for Activities Related to the Collection of Foreign Intelli gence. B-Authority to Engage in Covert Operations. C-Limitations on the Authority to Reorganize the Civilian Intelligence Community. Each of these subjects is treated separately. Neither the text nor the references include classified information. The conclusions reached were based on present knowledge of intelligence operations. It is conceivable that some of the conclusions may have overlooked some aspects of the practical functioning of intelligence operations and, therefore, may require further study. We are confident that the case law in the field has been exhausted. It should be noted, nevertheless, that there are very few cases dealing precisely with the issues discussed in this paper. However, the cases played an important part in arriving at the conclusions, and our supporting views are based, in large part, on the rationale of some of the leading decisions, particularly those which involve Presidential powers. It can be expected also that the issues discussed in this paper will suggest others on which research may be desired. Other topics which may be considered as additional research projects are the following: 1. Jurisdictional problems in conducting domestic intelligence activities; 2. Scope of authority to protect sources and methods; 3. Fourth Amendment problems in connection with domestic intelligence activities; 4. Limits on CIA authority to conduct investigations and other similar activities within the United States; 5. Limitations on covert operations under international law; 6. Authority of CIA to assist other Federal agencies in carrying out their responsibilities; 7. Nature and scope of the confidentiality of CIA records; 8. Legal responsibilities of CIA and its employees for lawful conduct within the U.S. II. ANALYSIS OF SOME OF THE ISSUES 1. The Nature of Presidential Powers The nature and scope of Presidential powers relating to foreign affairs are difficult to determine. The few references to such powers in the Constitution offer little guidance and court decisions are not too helpful, tending to keep within the narrow limits of the issues. The clauses in Article II of the Constitution do not articulate the powers of the President in conducting foreign affairs, formulating and implementing foreign policy, and taking the steps necessary to safeguard national security. Some authorities contend that the Constitution contemplated that the President should possess the sovereign power which the founding fathers intended to vest in the Federal Government as a whole. Whatever sovereign power that exists in the national government for conducting foreign affairs is distributed among the three branches, and the theory that the President has unrestricted sovereign power to act exclusively and independently in foreign affairs cannot be supported.1 The problem of ascertaining the true nature of the President's powers is made particularly complex because the Constitution has divided responsibility for foreign affairs between the President and Congress. The President negotiates a treaty; the Congress ratifies it. The Congress declares war; but the President prosecutes it. Since there is no explicit allocation of authority between the two branches of government, it remains uncertain as to which branch has authority to determine U.S. foreign policy and under what circumstances both branches must share in its formulation. Traditionally, Congress makes the laws and the President executes them. If our Constitution required a strictly functional separation of powers, Congress would have the responsibility of making foreign policy and the President of enforcing it. But this concept has been rejected by history, and we have followed the general tradition of recognizing the authority of the President to "legislate" foreign policy and Congress to legislate in domestic affairs. On the few occasions the Supreme Court has reviewed the scope of the President's powers in foreign affairs, it has tended to avoid any ruling that offers much assistance in ascertaining the limits of the scope of such powers. In the Curtiss-Wright case, the court seemed to endorse the proposition that the President had inherent authority to legislate foreign policy. However, in Youngstown the court seemed to favor a "natural" division of powers between Congress and the President, allocating those which are inherently "executive" to Congress. Whether the rule in Youngstown will be applied broadly to foreign affairs, or restricted to the domestic aspects of foreign policy, has not yet been decided. 3 Acceptance of the view that Congress and the President share authority in the field of foreign affairs belies any conclusion that the President possesses unrestricted inherent power. Moreover, to adopt the principle of the exclusive primacy of Presidential powers in foreign affairs is to ignore the doctrine of separation of powers. Therefore, an anlysis of Presidential authority in that area must take into account the statutory framework which Congress established under its power to legislate.* 2. Presidential Power and Intelligence Activities The power of the President to collect foreign intelligence affecting our national security need not rest exclusively on a Congressional delegation of authority. The existence of such authority can be supported by the President's authority as Commander-in-Chief to acquire intelligence for use in making military decisions necessary for protecting our national security. This is reinforced by Congressional policy as articulated in the NSA. There is support for the view that the responsibilities of the President for conducting foreign affairs vests an inherent authority in him to collect intelligence necessary to intelligently carry out his responsibility. This is based on the proposition that the manifestly complex nature of foreign policy decisions requires that the President obtain information to aid him in formulating foreign and domestic policy. In discussing Presidential authority as related to executive privilege, the Supreme Court in United States v. Nixon stated that "certain powers and privileges flow from the nature of the enumerated powers." Therefore, the authority of the President to collect foreign intelligence without legislative authority either can be implied from an enumerated power or it can be based on the power of the President to conduct foreign affairs and to formulate foreign policy. It may be concluded, therefore, that the mere collection of intelligence to assist in formulating foreign policy needs no supporting legislation. 3. Authority to Conduct Covert Operations There has never been any doubt as to the President's power to use whatever means, covert or otherwise, to meet the threats of war or national emer 1 See e.g. "Foreign Policy and the Constitution", 61 Va. Law Rev. 751, 753 (1975). 2 United States v. Curtiss-Wright, 299 U.S. 304 (1937). 3 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952). Unlike Article II which states that: "The Executive Power shall be vested in a President...", Article I states that "All legislative powers herein granted shall be vested in a Congress..." (underscoring added). 5 Totten v. United States, 105 U.S. 106 (1875). 418 U.S. 683, 705 (1974). 7 This is not to imply that if Congress legislates with respect to the collection of intelligence, the President can still act independently of the legislation. gency. The authority is inherent under his power as Commander-in-Chief. When the President is not acting under his authority as Commander-in-Chief during times of war or national emergency, his authority to conduct covert operations involving political or military force directed at foreign governments and their leaders must be based on what is appropriately described as his "residual" power. This power includes the authority to conduct foreign affairs and the primary responsibility for safeguarding our national security from foreign threats. However, because it does not fall within one of the President's enumerated powers giving him an independent source of power, the authority to conduct foreign affairs and to safeguard the national security must be shared by him with Congress. The right of a nation to act in order to protect its national security is based upon the rule of international law which recognizes the sovereign right of selfpreservation. But under our system of government, authority to take action to safeguard our national security does not rest in the President alone. Until the enactment of the Foreign Assistance Act of 1974, there was serious doubt that the CIA had authority to engage in covert operations involving the use of political and military force against, or in support of, a foreign government or its leaders. Such operations involve the implementation of foreign policy-a power which would be difficult to support as having been delegated to the CIA, the NSC, or the President by the National Security Act. Most of the duties delegated to the CIA under that Act are ministerial and do not involve policy making or policy implementation in the field of foreign affairs. Using covert operations to implement foreign policy within the context discussed herein, independent of any Congressional grant, affects the equilibrium sought by the framers of the Constitution in providing for the separation of governmental powers. If this authority were recognized as independently existing in the Executive Branch, it would permit the President to secretly "legislate" foreign policy and then secretly execute it, using covert means in so doing. It has been suggested that the special authority given to the National Security Council in section 102(d) (5) of the Act to authorize "other functions and duties" provides the necessary authority for CIA to conduct foreign covert operations. Any such interpretation would strain the literal meaning of the language used. The "other functions and duties" which the NSC may assign are limited to those "relating to intelligence affecting the national security". It would be difficult to support the view that the implementation of foreign policy by the covert use of political, economic, or military force is related to the collection, evaluation or dissemination of intelligence. Any question as to whether the President can authorize covert operations has now been removed by the enactment of the Foreign Assistance Act of 1974. Section 662 of that Act limits the authority of the President to use appropriated funds for conducting CIA covert operations in foreign countries, other than those relating to intelligence collection, unless he makes a finding that each such operation is important to national security and reports such finding to Congress. There are two ways to view this section. One view is to construe it as making an affirmative grant of power to engage in foreign covert activities. Another view is to construe it as placing a limitation on authority that is presumed to already exist in the President, the CIA or the NSC. 4. Covert Operations and International Law This paper has not dealt with the scope of the authority of a nation to pursue foreign policy objectives by the use of covert operations. It also does not touch on the issue of whether some of the reported instances of the use of covert operations violate treaties or resolutions of the United Nations. However, we have expressed the view that international law should not be the basis for determining the legality of foreign covert operations to the exclusion of statutory and Constitutional considerations which are part of our domestic law. This view would seem to apply also to foreign intelligence collection activities. 5. Reorganization of the Civilian Intelligence Community It is apparent from our study of the legal problems in reorganizing the civilian intelligence community that many of the administrative obstacles to improving the efficiency of the national intelligence operation cannot be overcome without Congressional action. Any attempt by the President to vest in a new appointee $50 U.S.C. 402 (d) (5). Public Law 93-559 (1974). 69-450 O 76 15 authority that has already been delegated to a specific person or body under the National Security Act or any effort to reallocate duties already assigned by statute would be contrary to the Act and also may constitute an executive reorganization requiring legislation.1o III. SUMMARY OF CONCLUSIONS A. Authority for Activities Relating to the Collection of Foreign Intelligence 1. The authority of the President to collect intelligence in times of war and national emergency is implied from his Commander-in-Chief power, supplemented by his authority to faithfully execute the laws. This authority needs no independent Congressional grant to support it. 2. The President also would appear to have authority to collect intelligence, independent of a Congressional grant, when necessary or appropriate in carrying out any of his other enumerated powers or powers which are implied from the nature of his responsibilities, such as the conduct of foreign affairs. 3. Nowithstanding the existence of independent authority in the President to conduct intelligence activities, Congress has concurrent jurisdiction to legislate in the broad field of foreign affairs and, therefore, when it does legislate, the President is subject to such legislation. Any objection by the President would have to be based on the claim that concurrent jurisdiction does not exist and the legislation encroaches upon Presidential powers in violation of separation of powers. 4. Under the National Security Act and amendments thereto, the CIA, DCI, NSC and the President are limited by the provisions of that Act in the conduct of intelligence activities and any actions which are inconsistent with the Act would be invalid and violate the separation of powers. 5. The DCI has plenary authority to protect intelligence sources and methods. This authority may be exercised in a quasi-legislative manner, but it may not be exercised in a manner which would violate the prohibitions against the use of law enforcement powers or involvement in internal security functions. 6. To the extent that foreign covert activities are used solely in connection with the collection of intelligence or the protection of sources and methods, such activities appear to come within the authority of the NSA. B. Authority Relating to Covert Operations 1. The President has inherent authority under the Constitution, independent of any grant of legislative authority, to authorize covert activities involving the use of political, economic, or military force aaginst a foreign government or its leaders (a) In times of war or national emergency under his powers as Commander-in-Chief and his responsibilities for executing the laws; and (b) To a limited extent, in times of peace under his residual authority as chief executive to take appropriate action when confronted with foreign threat to the security of the United States. 2. Although there are differences of opinion, it is doubtful that CIA was intended to have authority under the NSA to implement foreign policy by the use of covert means targeted against foreign elements. 3. The use of the CIA by the President or the NSC for conducting covert activities unrelated to the collection of intelligence and prior to the enactment of the Foreign Assistance Act of 1974 is not supported by the provisions of the National Security Act or its legislative history. 4. In the enactment of the Foreign Assistance Act of 1974, Congress expressly recognized, and, by implication acquiesced in, the authority of the President to authorize covert operations subject to a finding that the operation is important to the national security and a report of such finding is submitted to the Congress. 5. The theory that the President has unrestricted sovereign power to authorize covert operations as long as they do not violate international law cannot be supported. C. Limitations on the Reorganization of the Civilian Intelligence Community 1. The President can add to or change those duties of the Director of Central Intelligence (DCI) which would not amend the National Security Act (NSA) 10 Reorganization under the procedure of the Executive Reorganization Act ended on April 1, 1973. 5 U.S.C. 901, 905. |