11 Secret Intelligence, Covert Action and Clandestine Diplomacy Len Scott ‘The essential skill of a secret service is to get things done secretly and deniably.’ (John Bruce Lockhart, former Deputy Chief of SIS)1 Much contemporary study of intelligence concerns how knowledge is acquired, generated and used. This chapter provides a different focus that treats secrecy, rather than knowledge, as an organising theme. Instead of scrutinising the process of gathering, analysing and exploiting intelligence, it examines other activities of secret intelligence services, often termed covert action. This broader framework draws upon both pre-modern ‘Secret Service’ activities that predated modern intelligence organisations,2 as well as many Cold War studies. It resonates with the perspective of Richard Aldrich that secret service activity includes ‘operations to influence the world by unseen means – the hidden hand’. 3 Exploration of secret intervention illuminates important themes and issues in the study of intelligence, and identifies challenges and opportunities for enquiry, particularly in the context of the British experience. One further aspect is examined and developed – the role of secret intelligence services in conducting clandestine diplomacy, a neglected yet intriguing dimension that also provides insights into the study of intelligence. Many intelligence services perform tasks other than gathering secret intelligence. Conversely, intelligence activities are conducted by organisations other than secret intelligence services. The relationship between organisation and function varies over time and place. In wartime Britain, for example, the Secret Intelligence Service (SIS) conducted espionage and the Special Operations Executive (SOE) was responsible for special operations.4 While the CIA conducted much US Cold War propaganda, in Britain the Information Research Department was part of the Foreign Office.5 In the United States, covert paramilitary action has long been undertaken by the Department of Defense,6 while there is a veritable plethora of US government agencies with intelligence gathering capabilities. And in the wake of September 11 the CIA has expanded its paramilitary capabilities (evident in Afghanistan) while the Pentagon appears committed to developing Special Forces able to conduct their own intelligence Secret Intelligence and Clandestine Diplomacy 163 gathering. Notwithstanding the fact that different tasks are performed by different organisations, since 1945 Western intelligence services have nevertheless used the same organisations and the same groups of people to perform different tasks. For many observers, and especially for many critics, secret intervention is synonymous with intelligence and loomed large in Cold War debates about the legitimacy and morality of intelligence organisations and their activities. Since September 11, Washington’s agenda for taking the offensive to the United States’ enemies has rekindled such arguments. To exclude such activities from discussion about intelligence and intelligence services raises questions about the political agendas of those seeking to delineate and circumscribe the focus of enquiry. For many writers, for example, on British intelligence, special operations are integral to the study of the subject.7 But for others they are not.8 So, do those who marginalise or downplay covert action do so as part of an agenda to legitimise intelligence gathering? Do those who focus on covert action do so to undermine the legitimacy of intelligence (or the state in general or in particular)? Or are these unintended consequences reflecting unconscious biases? Or legitimate choices of emphasis and focus? Among the obvious and critical questions about secret interventions are: how do we know about them? And how do we interpret and evaluate them? Many of the terms used – ‘covert action’, ‘special operation’, ‘special activities’ and ‘disruptive action’ are used interchangeably though there are also important terminological differences. The Soviet term ‘active measures’ (activinyye meropriatia) embraced overt and covert actions to exercise influence in foreign countries, whereas most other terms focus exclusively on the covert.9 Critics and sceptics often use the more generic description of ‘dirty tricks’. The more prominent definitions of covert action are American, dating back to the celebrated 1948 National Security directive 10/2 which authorised the CIA to engage in: propaganda; economic warfare; preventive direct action, including sabotage, antisabotage, demolition and evacuation measures; subversion against hostile states, including assistance to underground resistance movements, guerrillas and refugee liberation groups, and support of indigenous anti-Communist elements in threatened countries of the free world.10 More recent US government statements cover most of these activities though some of the language has altered (notably the demise of ‘subversion’). In US law covert action became defined as: 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 [government] will not be apparent or acknowledged publicly, but does not include...traditional counter-intelligence...diplomatic...military...[or] law enforcement activities.11 164 Len Scott Whether phrases such as ‘regime change’ that have emerged in public debate over Iraq will enter the covert lexicon remains to be seen. One commonly accepted aspect of these definitions is that they refer to actions abroad. In the United States this reflects the legal status of the US intelligence services. Elsewhere, the distinction between home and abroad may be less clear. Some governments practice at home what they undertake abroad. Oleg Kalugin has recounted how the KGB conducted active measures against one of its leading dissidents, Alexander Solzhenitsin, culminating in attempts to poison him.12 Various British government activities in Northern Ireland, for example, appear to fall within otherwise accepted definitions of covert action.13 British terminology has moved from ‘special operations’ to ‘special political action’ to ‘disruptive action’. 14 These semantic changes reflect broader shifts in policy. The ‘special political action’ of the 1950s, for example, was synonymous with intervention aimed at overthrowing governments and in some cases assassinating leaders.15 Since then, changes in the scope and nature of operations have reflected the priorities and perspectives of governments and of SIS itself. Although the Intelligence Services Act 1994 makes clear that SIS’s mandate is to engage in ‘other tasks’ beside espionage, the scope and nature of these other tasks is unclear.16 ‘Disruptive action’ is nowhere officially defined, though there are some official references to the term.17 What is involved is unclear from official references. It may be unwise to infer that disruptive activity is exclusively clandestine. Some activities might involve passing information to other states and agencies to enable them to act against arms dealers or terrorists, and would fall within the ambit of intelligence liaison. How far, and in what ways, actions are undertaken without knowledge or permission of the host nations or organisations are the more controversial questions. David Shayler, the former MI5 officer, has revealed or alleged that SIS supported groups seeking to overthrow and assassinate the Libyan leader, Colonel Ghaddafi, in 1995/96, and what appears to be SIS documentation has been posted on the internet providing apparent corroboration.18 The SIS ‘whistleblower’, Richard Tomlinson, has indicated that SIS is required to ‘maintain a capability to plan and mount “Special Operations” of a quasimilitary nature’ which are ‘executed by specially trained officers and men from the three branches of the armed forces’. 19 He also provides examples of disruptive action, discussed below. Lack of clarity about the term disruptive action reflects the determination of the British government to avoid disclosure of the activities involved. Elizabeth Anderson has argued that ‘the specific subject of covert action as an element of intelligence has suffered a deficiency of serious study’; she notes a failure to generate the theoretical concepts to explain other instruments of foreign policy such as trade, force and diplomacy.20 Nevertheless, the American literature provides typologies that distinguish between political action, economic action, propaganda and paramilitary activities.21 The nature and scope of these activities differs across time, place and context. How far these categories reflect the distillation of American experience and reflection is one question to ask. Yet whatever Secret Intelligence and Clandestine Diplomacy 165 the theory and practice in other states, American debates about whether covert action should be viewed as a routine instrument of statecraft, a weapon of last resort or the subversion of democratic values will presumably be familiar to many of those contemplating such options. Knowledge and trust This leads to the second general consideration: the problem of knowledge. For scholars and citizens alike, knowledge of secret intervention is crucial to understanding and evaluation. How far this is a problem is a matter of debate. Stephen Dorril, for example, has argued that in the British context there is far more in the public domain than anyone has realised and that ‘the reality [is] that secrets are increasingly difficult to protect, and it would not be a great exaggeration to suggest that there are no real secrets any more’. 22 In contrast, Roy Godson argued in 1995 that our knowledge of covert action (and counter-intelligence) is ‘sketchy at best’, 23 and this in a book that drew heavily upon both US and pre-Cold War historiography. Since Godson published that view there have been significant developments in the declassification of US archival records on Cold War covert actions.24 And since September 11 we have learned of specific covert actions including those planned and authorised by the Clinton administration.25 How far this information was provided to protect Clinton administration officials and/or CIA officers against accusations that they were supine in the face of the terrorist threat is one question. Such revelations also reflect a Washington culture where the willingness of individuals and agencies to provide information to journalists presents incentives for others to preserve or enhance their individual and organisational reputations. We know about covert action in the same ways that we learn about other intelligence activities – through authorised and unauthorised disclosure: memoirs, journalism, defectors, archives, whistle-blowers and judicial investigation. The veracity and integrity of these sources may differ, though there are generic questions to be posed about the agendas and intentions of those who provide us with information about covert action, as about intelligence in general. How we assess what we are told reflects our values and assumptions. Our understanding of KGB active measures, for example, has been greatly informed by the revelations of defectors whose accounts have been sanctioned by the intelligence services with whom they worked. For critical commentators who believe official sources are by definition tainted sources, any public disclosure of an adversary’s activities is synonymous with disinformation and the manipulation of public opinion. Accounts written by retired Soviet intelligence officials raise different, though no less intriguing, questions about the veracity of the material disclosed. Pavel Sudoplatov’s memoir of his work for Stalin’s NKVD generated much controversy with its strongly disputed claims that leading atomic scientists on the Manhattan Project provided crucial intelligence to the Soviets.26 Yet the book contains material about active measures and assassinations conducted by Soviet intelligence during the Stalin era that has not been denounced. 166 Len Scott The study of intelligence (as with the practice of intelligence) requires consideration of the motives and agendas of sources and how far they can be dissociated from the substance of what they provide. In some ways this goes to the heart of the study of the subject. On what basis, for example, do we believe or not believe Richard Tomlinson when he recounts that SIS engaged in assassination planning against the Serbian President, Slobodan Milosevic, that it endeavoured to disrupt the Iranian chemical warfare programme, and that it acted as an instrument of the CIA in defaming the UN Secretary-General, Dr Bhoutros Bhoutros Ghali?27 For some, the account of the whistleblower or the defector is inherently reliable. For others, the motives of betrayal and exposure cast doubt on reliability or judgement. Does Pavel Sudoplatov’s role in Stalin’s assassination policy, and the fact that he remained ‘a Stalinist with few regrets’, 28 lend credence to his testimony or does it render his concern for the truth as incredible as his claims about Oppenheimer, Bohr, Fermi and Szilard? How far pre-existing assumptions inform how we assess individuals and their motives is important to consider. ‘If we trust the motive, we trust the man. Then we trust his material’, opines a British intelligence officer in John Le Carré’s The Russia House. 29 Trust and judgement are as essential to the academic enterprise as they are to the professional intelligence officer. And like the professional intelligence officer judgements on veracity require corroboration and evaluation of all available sources. One interesting response to this problem has been collaboration between insiders and outsiders. Joint endeavours between journalists and former intelligence officers have provided a variety of intriguing texts and valuable accounts. Western academics have also helped pioneer exploitation of Soviet intelligence archives, most notably Fursenko and Naftali’s work (see below). In Britain the pattern of these collaborations ranges across various kinds of relationship. Gordon BrookShepherd was allowed access to SIS archival records for his study of Western intelligence and the Bolshevik revolution where inter alia he traced SIS involvement in the plot to overthrow and assassinate Lenin.30 Tom Bower completed a biography of Sir Dick White, begun by Andrew Boyle, which drew upon extensive recollections and testimony of the man who led both the Security Service and the Secret Intelligence Service, and which contains much material not only on Cold War but on colonial and postcolonial operations.31 Other writers have enjoyed more opaque relationships with officialdom while some have clearly been used by individuals to disseminate particular perspectives or grievances. More recently SIS enabled Christopher Andrew to collaborate with the KGB defectors Oleg Gordievsky and Vassili Mitrokhin in a new form of relationship, which yielded new public insights into KGB practices both in peacetime and in preparation for war. One question is whether we know more about covert action than intelligence gathering and analysis. A second is whether we know more about certain kinds of covert actions than others – especially the more dramatic. Some covert operations have been easier to discover because they fail. We know about the targeting in 1985 of the Greenpeace protest ship, Rainbow Warrior, because the operation went wrong, and because officers of the French foreign intelligence service, the Direction Generale de la Securite Exterieure, were caught and tried by the Secret Intelligence and Clandestine Diplomacy 167 New Zealand authorities. It can also be argued that by definition the most successful covert actions are those that no-one knows has ever been conducted: the analogy with the perfect crime. A different definition of success is that while knowledge of them may leak out (or may be impossible to conceal), the identity of those engaging in them remains secret. For many governments the concept of plausible deniability has been integral to the activity. So among the obvious questions: do we learn more about unsuccessful operations than successful ones? Among the more perplexing questions: when we think we are learning of secret intervention are we in fact the target of covert action and the recipient of disinformation or propaganda? Understanding the limits of knowledge is important. If we know more about secret intervention than intelligence gathering we may draw distorted conclusions about the priorities of the organisations involved. Moreover, if our knowledge of the phenomenon is drawn from a particular period of history and politics and from particular states in that period, then how useful a guide is our knowledge for understanding the world we now inhabit? Much of our understanding of the phenomenon is drawn from particular phases of the Cold War. So do we make assumptions about how states behave on the basis of generalisations drawn from atypical examples? Most specifically do our examples and our categories of analysis reflect US assumptions and experiences? Notwithstanding the observations of Roy Godson, the study of covert action in the United States has generated a considerable and sophisticated literature based on extensive US experience, and a body of scholarship that notably extends to ethical debate about covert actions.32 Public and political accountability of covert action has also made a significant contribution to that knowledge and understanding, though it underlines a distinctive (and hitherto frequently unique) US approach to public knowledge of the secret world. One reason for exploring these questions is that these activities loom large in public perceptions of intelligence services, both nationally and internationally. The image of the CIA, for example, has been coloured at home and especially abroad by what has been learned of its activities in places like Cuba, Guatemala, Iran and Chile.33 Whether these activities buttressed democracy in the Cold War or undermined the moral authority of the United States in the ‘Third World’ are essential questions for scholars interested in the role of intelligence in world politics.34 Interpretation The interpretation and evaluation of covert action should extend beyond utility into ethics and legality. Many of the ethical, legal and political debates on overt intervention do not give consideration to covert action. Such debates are clearly hampered by secrecy. Yet concepts of ‘ethical statecraft’ and debates about Britain’s ‘ethical foreign policy’ have largely ignored covert action, and indeed intelligence in general. Since the end of the Cold War and since September 11 significant changes in world politics have been apparent. In the last decade, for 168 Len Scott example, the belief that humanitarian intervention in other states was legally and ethically synonymous with aggression has altered. Ideas of humanitarian intervention, though contested, have underpinned military action in Kosovo. American embrace of pre-emptive (or rather preventive) action to forestall attacks on the United States and its allies, portends radical changes in world order. Predicting future trends is inherently problematic, but it is reasonable to speculate that public and academic debate will engage with the normative questions about covert action in the ‘war against terror’ in more robust and systematic fashion. Locating secret intervention within broader debates in international politics should not obscure critical questions about whether they work. Assessing their effectiveness and their consequences are crucial. As with diplomacy and military action such assessments cannot be fully evaluated by examining only the actions of the state that undertakes them. Understanding foreign policy making is a necessary but not sufficient part of understanding international politics. This has been apparent in recent historiography of the Cold War that has drawn from the archives and from the scholarship of former adversaries, and provided new insights and perspectives. The international history of secret intervention is surely part of this enterprise and of how mutual perceptions and misperceptions informed the Cold War struggle. This is an area that parallels the nuclear history of the Cold War where Soviet archival disclosures raise fascinating and disturbing questions about Soviet threat perceptions. Until recently, these aspects have been under-explored. While John Gaddis’ acclaimed 1997 study of the new historiography of the Cold War provides evidence of how Soviet covert action impacted on Western approaches, there is little on how Soviet leaders interpreted Western secret intervention.35 Other accounts drawn from Soviet archival sources have begun to emphasise the importance of Soviet perceptions and misperceptions. Vojtech Mastny has explored how Western covert action in eastern Europe and the Soviet Union exerted a significant and undue influence on Stalin’s paranoia.36 Richard Aldrich has raised the controversial question of whether Western covert action in eastern Europe was specifically designed to provoke Soviet repression in order to destabilise and weaken Soviet hegemony.37 Recent interpretations of the nature and role of US covert action have indeed provoked radical revisions of the Cold War itself.38 Such perspectives should not obscure the fact that although the Cold War provided context and pretext for many secret interventions since 1945, it is misleading to view all such action in these terms. There is a risk that the literature repeats the mistakes of Western decision makers in viewing post-colonial struggles through the lens of East–West conflict. As Ludo de Witte argues persuasively in his study of the Belgian intelligence service’s involvement in the assassination of the Congolese leader, Patrice Lumumba, the events of 1960–61 should be viewed primarily as a struggle against colonialism.39 Other studies and critiques have focused on secret interventions in post-colonial contexts.40 Yet while the end of the Cold War generated new opportunities to study Cold War intelligence conflicts, post-colonial politics provide very differing contexts and challenges to understanding. Secret Intelligence and Clandestine Diplomacy 169 In 1995 Roy Godson observed that ‘for many Americans, covert action, in the absence of clear and present danger, is a controversial proposition at best’. 41 Perceptions of the immediacy and presence of danger have changed since September 11. The impact on long-term attitudes, both in the United States and Europe, is difficult to assess and will in part be informed by other events and revelations, not least war on Iraq. It is a reasonable assumption that American use of particular kinds of covert activity will be more robust and intrusive, through which organs of the US government will be intruding and where remains to be seen (assuming it can be seen). How these actions are viewed in Europe and elsewhere also remains to be seen. At the height of the Cold War covert action was justified as a quiet option, to be used where diplomacy was insufficient and force was inappropriate. If the United States and its allies consider themselves in semi-perpetual war against ‘terrorism’, and preventive action in counterproliferation and counter-terrorism (in overt and covert policy) becomes increasingly prevalent, the implications for covert action will be profound. Clandestine diplomacy Diplomacy has been defined as the ‘process of dialogue and negotiation by which states in a system conduct their relations and pursue their purposes by means short of war’. 42 It is also a policy option that can be used as an alternative to, or in support of, other approaches, such as military force. The use of secret services to conduct diplomacy was characteristic of pre-modern inter-state relations, when diplomacy, covert action and intelligence gathering were often conducted by the same people. The creation of modern intelligence bureaucracies led to a greater separation of functions, though not as clearly as might seem. Although clandestine diplomacy is a neglected area of enquiry, there are a number of examples of where intelligence services are used to engage in secret and deniable discussions with adversaries. One question is whether clandestine diplomacy can be conceived as a form of covert action intended to influence an adversary or whether it is distinct from covert action because it involves conscious cooperation with the adversary and potential disclosure of the officers involved. Conceptually, there may be an overlap between diplomacy and liaison where relations between the actors are in part antagonistic – as in information exchanges between political adversaries in the ‘war against terror’ (for example, between the Americans and Syrians43). There may also be overlap between conducting clandestine diplomacy and gathering intelligence. In 1945 the American Office of Strategic Service (OSS) identification of Japanese ‘peace feelers’ assisted its analysis that war against Japan could be terminated by negotiation.44 And there may also be overlap with secret intervention: in 1983 the CIA apparently co-operated with the Iranian secret service by providing details of Soviet agents in the Tudeh party in Iran.45 One further and important distinction needs to be drawn, between intelligence services acting as diplomatic conduits, and intelligence services acting as quasi-independent foreign policy makers. While it may be difficult to distinguish between the two, the use of intelligence services by 170 Len Scott governments to conduct negotiations is distinct from where intelligence services have their own agendas and priorities. Various accounts of CIA and SIS activity in the Middle East in the 1950s, for example, suggest that both organisations were pursuing their own foreign policies at variance with their foreign ministry colleagues.46 Examples of the clandestine diplomatic role of secret intelligence services that have emerged in recent years include the role of British intelligence in the Northern Ireland peace process,47 the role of Israeli intelligence services, including Mossad, in Middle East diplomacy and peace building,48 the CIA’s relations with the Palestine Liberation Organisation and SIS’s relations with Hamas.49 These examples illustrate that the activity concerns not just relations between states, but between states and non-state actors, in particular between states and insurgent or ‘terrorist’ groups.50 The value of clandestine diplomacy is that it is more readily deniable, and this is particularly significant where the adversary is engaged in armed attacks and/or terrorist activities. One difference between dialogue with states and with a paramilitary group is the greater potential of physical risk to the participants. Professionally, using intelligence officers to facilitate and conduct inter-state diplomacy risks blowing their cover. Paramilitary groups may harbour factions opposed to negotiation, and exposure of the intelligence officer may risk their safety. The paramilitary negotiator may well have parallel concerns. The role of intelligence services can be to promote the cause of dialogue and reconciliation, both national and international. Depending upon our political assumptions and values, many would conclude that this role is intrinsically worthwhile, although of course, the intelligence service is but an instrument of a political will to engage in dialogue. For those who seek to justify the world of intelligence to the political world, clandestine diplomacy provides some fertile material. For those who wish to explore the ethical dimension of intelligence this is an interesting and neglected dimension. For those who seek to study intelligence, clandestine diplomacy is not only intrinsically interesting, but also a useful way of further exploring problems and challenges in studying the subject. From the perspective of the study of intelligence, clandestine diplomacy illustrates one of the basic questions and basic problems. How do we know about things? Who is telling us? For what reason? Clandestine diplomacy involves often highly sensitive contacts and exchanges whose disclosure may be intended as foreclosure on dialogue, and where the provenance of our knowledge is a calculation of a protagonist. Secret contacts may be scuppered by public awareness. After disclosure in a Lebanese newspaper of clandestine US negotiations to secure the release of US hostages in the Lebanon in the 1980s that dialogue came to an end as the Iran-Contra fiasco unravelled. Two examples of clandestine diplomacy are discussed below which illustrate the activity and issues in studying the subject. One involves diplomacy between states informed by archival disclosure as well as personal recollection. The other is between a state and a non-state actor based on testimony from the protagonists. Secret Intelligence and Clandestine Diplomacy 171 The Cuban missile crisis In studying clandestine diplomacy it is rare to have details from both sides, and even rarer to have that in documentary form. The study of the Cuban missile crisis provides several examples of intelligence officers being used to undertake clandestine diplomacy. It provides material for exploring the problems of understanding the role of intelligence services, and moreover it provides opportunities to study how clandestine diplomacy was integrated into foreign policy making and crisis management. Three examples have emerged of intelligence officers acting in diplomatic roles between adversaries in 1962: Georgi Bolshakov (GRU) and Aleksandr Feklisov (KGB) in Washington, and Yevgeny Ivanov (GRU) in London. There are also examples of intelligence officers working in co-operative political relationships: Aleksandr Alekseev (KGB) in Havana, Chet Cooper (CIA) in London, Sherman Kent (CIA) in Paris, William Tidwell (CIA) in Ottawa and Jack Smith (CIA) in Bonn.51 Alekseev enjoyed the confidence of the Cuban leadership as well as that of Nikita Khrushchev, who recalled him to Moscow to consult on the missile deployment, and promoted him to ambassador. Chester Cooper conveyed the photographic evidence of the Soviet missile deployments to London, and helped brief Prime Minister Macmillan. Sherman Kent accompanied Dean Acheson in briefing General De Gaulle and the North Atlantic Council; William Tidwell briefed Prime Minister Diefenbaker and Jack Smith briefed Konrad Adenauer. The role of Bolshakov and Feklisov in Washington has generated a particularly fascinating literature. Most significantly, this draws upon Soviet sources and in particular Soviet archival sources, and illustrates the role of secret intelligence in the conduct of Soviet–US diplomacy, as well as problems of both conducting and studying that role.52 In the case of Ivanov, although we have British Foreign Office documentation and Lord Denning’s report into the Profumo Affair, the only Soviet source is Ivanov’s memoir, written in retirement, unaided by access to or corroboration from archives.53 With both Feklisov and Bolshakov, however, we have US and Soviet archival sources, as well as memoirs and personal testimony. Before access was gained to Soviet sources, it was known that Bolshakov, working under cover as a TASS correspondent, formed a secret back-channel of communication between Kennedy and Khrushchev.54 This was routed through the Attorney General, Robert Kennedy, with whom he held over 50 meetings in 1961 and 1962. Part of the historical interest of this was that Bolshakov was used by Khrushchev to reassure Kennedy about Soviet intentions in Cuba, and to deceive the US President about the secret deployment of Soviet nuclear missiles. Fursenko and Naftali have now provided evidence of the role of Bolshakov both before and during the missiles crisis.55 They argue that Bolshakov ‘shaped the Kremlin’s understanding of the US government’. 56 Contrary to previous understanding, Bolshakov was not immediately ‘discontinued’ when Kennedy learned of the missiles, but played an intriguing part in crisis diplomacy. Yet, once the missiles were discovered in Cuba his role in Soviet deception was apparent. Like other Soviet officials, including Ambassador Dobrynin 172 Len Scott in Washington, he was unaware of the truth. Another probable example of deception concerns Yevgeny Ivanov, a fellow GRU officer, who later in the week admitted to the British that the Soviets had missile deployments in Cuba, but insisted that they only had the range to strike Florida but not Washington.57 The nature and provenance of this disinformation (or misinformation) remains unclear. Indeed the provenance of Ivanov’s mission is not yet fully clear. Ivanov approached the British government to encourage Macmillan to pursue an international summit. Whether this was done on the instructions of Moscow rather than as an initiative of the London Residentura has yet to be confirmed. Perhaps the most intriguing episode during the crisis involved the role of Aleksandr Feklisov (identified at the time and in the early literature as Aleksandr Fomin). Feklisov was the KGB Rezident in Washington. At the height of the crisis he contacted a US journalist, John Scali, who then conveyed to the State Department an outline deal to facilitate the withdrawal of the Soviet missiles from Cuba. The missiles were to be withdrawn under verifiable conditions in return for assurances that the United States would not invade Cuba. This outline deal was followed by the arrival of a personal letter from Khrushchev to Kennedy, which was seen within the White House to signal a willingness to find a negotiated solution. When Khrushchev then publicly communicated a different proposal involving ‘analogous’ US weapons in Turkey this greatly exercised the US government.58 The revelations from the Soviet side provide fascinating vignettes into the workings of the KGB. It is clear that Feklisov was not acting under instruction from Moscow when he met Scali, and that the initiative was his. Second, when the Americans responded and Feklisov reported back to Moscow, Fursenko and Naftali show how communications in Moscow worked – or rather failed to work. Feklisov’s crucial report remained on the desk of the Chairman of the KGB while events passed by.59 So the Americans were mistaken in believing they were communicating with Khrushchev. The general point this underlines is that the mechanics and procedures of channels of communication are crucial. Without understanding how communication and decision-making processes work, neither the participant nor the student of clandestine diplomacy can properly understand events. A second aspect concerns archival records. Both Scali’s and Feklisov’s contemporaneous records have now emerged, and both men have openly debated the episode. According to Feklisov it was the American who proposed the deal. According to Scali it was the Soviet official. So who to believe? The question assumes an additional interest given that the missile crisis provides examples of contending accounts of Americans and Soviets where the latter have proved reliable and the former deliberately misleading.60 Yet, Scali had no reason at the time to misrepresent what he had been told. While there may have been confusion about what was said, Feklisov had good reason not to tell Moscow Centre that he had taken an initiative in Soviet foreign policy at a crucial moment in world history. In his memoir Feklisov admits that he did overreach his authority in threatening retaliation against Berlin in the event of an American Secret Intelligence and Clandestine Diplomacy 173 attack on Cuba.61 Yet, he maintains that the initiative for the outline of the deal came from Scali. It may be that further clarification will eventually become possible. The FBI encouraged Scali to meet Feklisov and it is conceivable that records exist of FBI surveillance of their meetings. In the meantime the episode is a reminder of the potential fallibility of archives as well as memory, and indeed provides what appears a good example of an intelligence document written for a purpose that hides part of the truth. And of course what this shows the intelligence historian, as indeed any historian, is that an archival record is a not a simple statement of truth – it is what someone wrote down at a particular time for a particular purpose. The Scali–Feklisov back-channel now turns out not to have been a back-channel, and was not significant in the resolution of the crisis. When the US government needed to communicate urgently with Khrushchev to offer a secret assurance to withdraw the missiles from Turkey, it did not choose Soviet intelligence officers, but Ambassador Dobrynin. This is a further reminder that evaluating the importance of secret intelligence channels needs to be done within a broader framework of decision making and diplomacy. And it is also a reminder that that which is secret is not a priori more significant. British intelligence and Northern Ireland Just as the Reagan administration vowed never to negotiate with hostage takers, the Thatcher government made clear it would not talk to terrorists. Yet since the early 1970s the British intelligence services established and maintained lines of communication with the Provisional Irish Republican Army (PIRA) which eventually involved government ministers, and played a role in the political process in the 1970s and the 1990s, culminating in the Good Friday agreement.62 There were clear historical precedents in the 1920s for this kind of activity.63 In 1971, after Prime Minister Edward Heath involved SIS in Northern Ireland, lines of communication were opened with Sinn Fein/PIRA, leading to ministerial level dialogue with the PIRA in 1972. Contacts continued at a lower level and in the 1990s were reactivated following intelligence on potential reassessments within Sinn Fein/PIRA of political and military strategies. Some details of the role of SIS (and later MI5) in the secret negotiations between the PIRA and the British government became known though disclosure and testimony, most interestingly on the British side. The role of two SIS officers, Frank Steele and Michael Oatley, has been described. Both Steele and Oatley have provided testimony of their activities and Michael Oatley has indeed appeared on camera speaking of his experience.64 This is of note as it was only in 1993 that a former senior SIS officer, Daphne Park, appeared on television with unprecedented authorisation from the Foreign Secretary (and when it was made clear that SIS engaged in disruptive activity).65 It is a reasonable assumption that Michael Oatley had similar dispensation. Moreover the former SIS officer wrote an article in the Sunday Times in 1999 in which he argued forcefully in support 174 Len Scott of the Republican leadership in the face of Unionist attacks on the PIRA’s failure to decommission its weapons.66 Why Frank Steele and Michael Oatley chose to make their views and their roles known, and how far this was sanctioned by SIS or by ministers are interesting questions. Frank Steele’s assertion that he ‘wanted to set the record straight’, while no doubt sincere, is hardly a sufficient explanation.67 Certainly Oatley appears to have been motivated by his personal view that the Sinn Fein leadership, in particular Gerry Adams and Martin McGuinness, were genuinely committed to political solutions and political processes. The fact that former SIS officers have provided such testimony without appearing to provoke official disapproval (or indeed prosecution), suggests that SIS and/or the government do not see the disclosure of such information in the same way as other disclosures by security and intelligence officers. The revelation that British intelligence ‘talked to terrorists’ is potentially embarrassing and politically problematic in dealing with Unionist opinion. A more considered response is that the British government understood that while it could thwart the PIRA’s objectives it could not defeat them by military means. Many in the military (and the Unionist community) believed that military victory was possible and that negotiating with the terrorists was counter-productive. Whichever is true, the role of SIS certainly provides contrast with the role of other security and intelligence agencies. As the Stevens Enquiry has concluded, elements of the RUC and the Army colluded with loyalist paramilitaries in murder and other crimes – findings that damage the credibility and legitimacy of the British security forces and indeed the British state in Northern Ireland.68 The role of SIS also raises aspects of broader interest in the study of intelligence, concerning the role of the individual and the nature of accountability. The essence of clandestine diplomacy is that the participants can deny that they are engaging in talks or negotiations. Michael Oatley operated under strict regulations governing contacts with the paramilitaries. Yet he and Frank Steele engaged creatively with these, and both appear to have enjoyed some latitude to pursue their own initiatives. The people who constitute the secret channel may be more than just a conduit, and their own initiative may be an important element. Just as Aleksandr Feklisov initiated what US officials took to be a back-channel of communication to Nikita Khrushchev, Michael Oatley appears to have developed contacts on his own initiative. His success in winning the trust of his adversaries reflected his skills and his understanding of those he dealt with.69 This raises intriguing questions about where plausible deniability ends and personal initiative begins. Clandestine diplomacy is an activity undertaken by secret intelligence services where deniable communication between adversaries may be helpful, especially where the adversary is a paramilitary group with whom open political dialogue may be anathema for one or both sides. As an activity, clandestine diplomacy may overlap with gathering intelligence and/or conducting deception. One purpose may be to influence the behaviour of the adversary toward political as against military action, as appears the case in the actions of Aleksandr Feklisov and Michael Oatley. Yet clandestine diplomacy is distinct from secret intervention Secret Intelligence and Clandestine Diplomacy 175 inasmuch as those involved may need to reveal their identity and risk exposure as intelligence officers. Critics of clandestine diplomacy (or specific cases of clandestine diplomacy) would argue that it undermines other approaches such as counter-insurgency or conventional diplomacy. Other examples of back-channel diplomacy such as in Soviet–US arms negotiations certainly afford examples of where circumvention of professional diplomatic expertise risked major policy errors. And Bolshakov’s role as a personal emissary of Khrushchev illustrates the risk of deception. Whether the risks of making mistakes or being deceived are greater where an intelligence service is involved than where diplomats are used is an interesting question. Conclusion Clandestine diplomacy presupposes a willingness to talk to an adversary, even if talking may not lead to negotiation. There are clearly many political contexts in which the prospect of negotiation or agreement is illusory. To suggest that there might come a time when the US government could engage in clandestine diplomacy with al-Qaeda would seem beyond credulity and acceptability, although negotiations with allies or sponsors of the group or its associates may be another matter. And there are, of course, other states friendly to the United States who would have less political qualms about such contacts. Such reflections should be placed firmly in the context of the intelligence-led ‘war against terror’, where gathering and analysing secret intelligence is the overriding priority, and where covert action is given a new relevance and (arguably) a new legitimacy. For critics, Western covert action undermined the legitimacy of Western (especially US) intelligence if not indeed Western (especially US) foreign policy during the Cold War. For their supporters they represented (usually) discreet forms of intervention that obviated more violent methods. The United States’ current mood shows little aversion to using force, and overt action is less constrained by domestic opposition or international restraint. US political and bureaucratic debates about covert action will for some time occur within a different context to much of the Cold War. Cold War critics of covert action saw secret intervention not as instruments of statecraft but tools of political and economic self-interest designed to serve hegemonic, if not imperialist, aims. How far the events of September 11 and the search for Iraqi Weapons of Mass Destruction have strengthened the legitimacy of secret intelligence remains to be seen. Covert action may rest on a more secure domestic US consensus. Yet international support for a policy of pre-emptive or preventive attack is a different matter. Whether the war on Iraq reflects a sea change in the norms of intervention or the high tide of US belligerence remains to be seen. Covert action promises to deliver much of what it promised to deliver in the Cold War. As US action against Iraq demonstrated, the US government has limited interest in the views of others, even its allies. Yet is it conceivable that specific forms of covert action might be sanctioned in specific 176 Len Scott contexts, if not by the United Nations itself then by regional security alliances? Most probably not. Legitimising covert action risks weakening the legitimacy of the institutions of international society. Such discussion reflects how far covert action can be viewed as an American phenomenon. Many questions – from the operational to the ethical – apply equally to other states. One consequence of September 11 is that much more has become known of intelligence activities and operations. Either the sophistication with which covert action is kept secret will need to increase. Or we may learn more about the phenomenon. The problems of learning about covert action (and clandestine diplomacy) will nevertheless persist, as the need to evaluate and judge them will undoubtedly grow. Notes 1 John Bruce Lockhart, ‘Intelligence: A British View’, in K.G. Robertson (ed.), British and American Approaches to Intelligence (Basingstoke: Macmillan, 1987), p. 46. 2 Christopher Andrew, Secret Service: The Making of the British Intelligence Community (London: Sceptre, 1986), pp. 21–9. 3 Richard Aldrich, The Hidden Hand: Britain, America and Cold War Secret Intelligence (London: John Murray, 2001), p. 5. 4 See M.R.D. Foot, SOE: An Outline History of the Special Operations Executive 1940–6 (London: British Broadcasting Corporation, 1984). 5 Aldrich, The Hidden Hand, pp. 128–34, 443– 63. 6 See John Prados, Presidents’ Secret Wars: CIA and Pentagon Covert Operations from World War II through Iranscam (New York: Quill, 1985). 7 See, for example, Stephen Dorril, MI6: Fifty Years of Special Operations (London: Fourth Estate, 2000) and Aldrich, Hidden Hand. 8 For example, Michael Herman, Intelligence Power in Peace and War (Cambridge: Cambridge University Press, 1996) and Intelligence Services in the Information Age: Theory and Practice (London: Frank Cass, 2001). 9 For detailed accounts of Soviet practice see Christopher Andrew and Oleg Gordievsky, KGB: The Inside Story (London: Hodder & Stoughton, 1990) and Christopher Andrew and Vasili Mitrokhin, The Mitrokhin Archive: The KGB in Europe and the West (London: Allen Lane/Penguin Press, 1999). 10 NSC 10/2 18 June 1948, quoted in Christopher Andrew, For the President’s Eyes Only: Secret Intelligence and the American Presidency from Washington to Bush (London: HarperCollins, 1995), p. 173. 11 Intelligence Authorization Act, Fiscal Year 1991, P.L. 102–88, 14 August 1991, quoted in Abram Shulsky, Silent Warfare – Understanding the World of Intelligence (London: Brassey’s, 1993), p. 84. The CIA’s definition is ‘An operation designed to influence governments, events, organizations, or persons in support of foreign policy in a manner that is not necessarily attributable to the sponsoring power; it may include political, economic, propaganda, or paramilitary activities.’ CIA, Consumer’s Guide to Intelligence (Washington DC: CIA, 1995), p. 38, quoted in David Rudgers, ‘The Origins of Covert Action’, Journal of Contemporary History, 35, 2 (2000), p. 249. 12 Oleg Kalugin with Fen Montaigne, The First Directorate: My 32 Years in Intelligence and Espionage against the West (London: Smith Gryphon, 1994), p. 180. 13 See Mark Urban, Big Boys’ Rules: The SAS and the Secret Struggle against the IRA (London: Faber & Faber, 1992). 14 See Philip H.J. Davies, ‘From Special Operations to Special Political Action: The “Rump SOE” and SIS Post-War Covert Action Capability 1945–1977’, Intelligence Secret Intelligence and Clandestine Diplomacy 177 and National Security, 15, 3 (2000). For accounts of operations see Aldrich, Hidden Hand, Mark Urban, UK Eyes Alpha (London: Faber & Faber, 1996) and Dorril, MI6. 15 For accounts of operations and planning in the Middle East see Tom Bower, The Perfect English Spy: Sir Dick White and the Secret War 1935–90 (London: Heinemann, 1995), pp. 185–224; Aldrich, Hidden Hand, pp. 464–93, 581–606; Dorril, MI6, pp. 531–699. 16 The Intelligence Services Act 1994, Chapter 13, section 7.1 states that the functions of SIS are: ‘(a) to obtain and provide information relating to the actions or intentions of persons outside the British Islands; and (b) to perform other tasks relating to the actions or intentions of such persons’. The legal formula is similar to the US legislation that created the CIA in 1947 that speaks of ‘other functions and duties’. Rudgers, ‘The Origins of Covert Action’, p. 249. 17 The 1998–1999 Intelligence and Security Committee Annual Report (Cm 4532) makes reference to the fact that British agencies ‘may be required to undertake disruptive action in response to specific tasking’ on the proliferation of weapons of mass destruction, Cm 4532 para 58. I am grateful to Marc Davies for drawing my attention to this. 18 The document can be found at: www.cryptome.org/qadahfi-plot.htm. 19 Richard Tomlinson, The Big Breach: From Top Secret to Maximum Security (Edinburgh: Cutting Edge Press, 2001), p. 73. 20 Elizabeth Anderson, ‘The Security Dilemma and Covert Action: The Truman Years’, International Journal of Intelligence and CounterIntelligence, 11, 4 (1998/99), pp. 403–4. 21 See Roy Godson, Dirty Tricks or Trump Cards: US Covert Action and Counterintelligence (London: Brassey’s, 1995); Shulsky, Silent Warfare; Loch Johnson, Secret Agencies: US Intelligence in a Hostile World (London: Yale University Press, 1996). 22 Dorril, MI6, p. xiv. 23 Godson, Dirty Tricks, p. xii. 24 The pattern of declassification is not entirely uniform. Documents detailing CIA operations against Iran in the early 1950s have apparently been systematically destroyed. Craig Eisendrath (ed.), National Insecurity: US Intelligence after the Cold War (Washington: Center for International Policy, 1999), p. 3. 25 Bob Woodward, Bush at War (London: Simon & Schuster, 2002), pp. 5–6. 26 Pavel and Anatoli Sudoplatov (with Jerrold L. and Leona P. Schecter), Special Tasks: The Memoirs of an Unwanted Witness – a Soviet Spymaster (London: Little, Brown, 1994). 27 Tomlinson, The Big Breach, pp. 106–7, 140, 179–96. 28 Jerrold L. Schecter and Leona P. Schecter, ‘The Sudoplatov Controversy’, Cold War International History Project Bulletin, 5 (Spring 1995), p. 155. 29 In Le Carré’s novel it is Walter who says this, whereas in the film of the same name, it is Ned. Walter and Ned are SIS officers. John Le Carré, The Russia House (London: Hodder & Stoughton, 1989) p. 110; The Russia House (Pathe Entertainment, 1990). 30 Gordon Brook-Shepherd, Iron Maze: The Western Secret Services and the Bolsheviks (Basingstoke: Macmillan, 1998). 31 Bower, Perfect English Spy. 32 See for example, John Barry, ‘Covert Action can be Just’, Orbis (Summer 1993) pp. 375–90; Charles Beitz, ‘Covert Intervention as a Moral Problem’, Ethics and International Affairs, 3 (1989), pp. 45–60; William Colby, ‘Public Policy, Secret Action,’ Ethics and International Affairs, 3 (1989), pp. 61–71; Gregory Treverton, ‘Covert Action and Open Society’, Foreign Affairs, 65, 5 (1987), pp. 995–1014, idem, Covert Action: The Limits of Intervention in the Postwar World (New York: Basic Books 1987), idem, ‘Imposing a Standard: Covert Action and American Democracy’, Ethics and International Affairs, 3 (1989), pp. 27–43; and Johnson, Secret Agencies, pp. 60–88. 33 For documentary sources of CIA covert action and accounts based on these see the National Security Archive website: www.gwu.edu/~nsarchiv/. 178 Len Scott 34 For recent criticisms of CIA covert action see Eisendrath, National Insecurity. For an excoriating attack on US policy see the views of former CIA analyst Melvin Goodman, ‘Espionage and Covert Action’, ibid., pp. 23–43. For a more general caustic critique of the CIA, see Rhodri Jeffrey-Jones, Cloak and Dollar: A History of American Secret Intelligence (London: Yale University Press, 2002). 35 John L. Gaddis, What We Now Know: Rethinking the Cold War (Oxford: Oxford University Press, 1997). 36 Vojtech Mastny, The Cold War and Soviet Insecurity (Oxford: Oxford University Press, 1996). 37 Aldrich, The Hidden Hand, pp. 160–79. 38 See Sara-Jane Corkem, ‘History, Historians and the Naming of Foreign Policy: A Postmodern Reflection on American Strategic Thinking during the Truman Administration’, Intelligence and National Security, 16, 3 (2001), pp. 146–63. 39 Ludo de Witte, The Assassination of Lumumba (London: Verso, 2002). 40 Bower, Perfect Spy; Dorril, MI6; Jonathan Bloch and Patrick Fitzgerald, British Intelligence and Covert Action (Dingle, Ireland: Brandon Books, 1983). 41 Godson, Dirty Tricks, p. 120. 42 Adam Watson, Diplomacy: The Dialogue Between States (London: Routledge, 1991), p. 11. 43 Jim Risen and Tim Weiner, ‘CIA Sought Syrian Aid’, New York Times, 31 October 2001. The article also suggests a similar approach may have been made to Libyan intelligence. 44 Gar Alperovitz, The Decision to use the Atomic Bomb (London: HarperCollins, 1995), pp. 25–7, 292–301. 45 Shulsky, Silent Warfare, pp. 90–1. Apparently 200 agents were killed as a result of this operation. A senior KGB officer who defected to the British supplied the information to the CIA. 46 See for example, Bower, Perfect Spy, pp. 185–254; Aldrich, Hidden Hand, pp. 464–93. 47 Peter Taylor, The Provos: The IRA and Sinn Fein (London: Bloomsbury, 1997) and Brits: The War Against the IRA (London: Bloomsbury, 2001); Michael Smith, New Cloak, Old Dagger: How Britain’s Spies Came In From The Cold (London: Victor Gollancz, 1996), pp. 211– 30; Urban, UK Eyes Alpha and Big Boys’ Rules. 48 Hesi Carmel (ed.), Intelligence for Peace (London: Frank Cass 1999). 49 ‘Keeping a link to Hamas’, The Guardian, 29 September 2003, p. 19. 50 Michael Smith uses the term ‘parallel diplomacy’ to describe this activity. New Cloak, p. 211. 51 On Alekseev see Aleksandr Fursenko and Timothy Naftali, ‘One Hell of a Gamble’: Khrushchev, Castro, Kennedy the Cuban Missile Crisis 1958–1964 (London; John Murray, 1997). On Cooper, Kent, Tidwell and Smith see Sherman Kent, ‘The Cuban Missile Crisis of 1962: Presenting the Photographic Evidence Abroad’, Studies in Intelligence, 10, 2 (1972). 52 See in particular, Fursenko and Naftali, ‘One Hell of a Gamble’. 53 Yevgeny Ivanov (with Gennady Sokolov), The Naked Spy (London: Blake, 1992). For discussion, see L.V. Scott, Macmillan, Kennedy and the Cuban Missile Crisis: Political, Military and Intelligence Aspects (Basingstoke: Macmillan Palgrave, 1999), pp. 102–12. 54 See Michael Beschloss, Kennedy v. Khrushchev: The Crisis Years 1960–63 (London: Faber & Faber, 1991), pp. 152ff. 55 Fursenko and Naftali, ‘One Hell of a Gamble’, pp. 109ff. 56 Ibid., p. x. 57 Scott, Macmillan, Kennedy, p. 109. The medium-range ballistic missiles in Cuba had a range of 1,100 miles enabling them to strike Washington. 58 For details of the various exchanges on 26–27 October see Ernest May and Philip Zelikow (eds), The Kennedy Tapes (London: Belknap, 1998), pp. 439–629. Secret Intelligence and Clandestine Diplomacy 179 59 Aleksandr Fursenko and Timothy Naftali, ‘Using KGB Documents: The Scali–Feklisov Channel in the Cuban Missile Crisis’, Cold War International History Project Bulletin, 5 (Spring 1995), pp. 58–62. 60 The testimony of Ambassador Dobrynin on the US offer to remove NATO nuclear missiles from Turkey proved truthful, in contrast to contemporary public testimony of Kennedy administration officials, and Robert Kennedy’s posthumously published account, as edited by Theodore Sorensen, Thirteen Days (Basingstoke: Macmillan, 1969). 61 For Feklisov’s account see Alexander Feklisov and Sergei Kostin, The Man Behind the Rosenbergs: by the KGB Spymaster who was the Case Officer of Julius Rosenberg, and helped resolve the Cuban Missile Crisis (New York: Enigma Books, 2001), pp. 362–402. 62 Taylor, The Provos, pp. 129–47 and Brits, pp. 80ff.; Smith, New Cloak, pp. 220–30. 63 Smith, New Cloak, pp. 211–19. 64 See remarks by Oatley in transcript of BBC TV, ‘The Secret War’, BBC News, www.news.bbc.co.uk/hi/english/static/in-depth.ireland/2000/brits/. 65 BBC TV Panorama, ‘On Her Majesty’s Secret Service’, 22 November 1993. 66 Michael Oatley, ‘Forget the Weapons and Learn to Trust Sinn Fein’, Sunday Times, 31 October 1999; BBC Panorama, ‘The Secret War’. 67 Taylor, Provos, p. 129. 68 Stevens Enquiry, Overview and Recommendations, 17 April 2003, www.met.police.uk/ index/index.htm. 69 Oatley, transcript of ‘The Secret War’. Covert Action: Legislative Background and Possible Policy Questions Marshall Curtis Erwin Analyst in Intelligence and National Security April 10, 2013 CRS Report for Congress Prepared for Members and Committees of Congress Covert Action: Legislative Background and Possible Policy Questions Marshall Curtis Erwin Analyst in Intelligence and National Security April 10, 2013 Congressional Research Service 7-5700 www.crs.gov RL33715 Covert Action: Legislative Background and Possible Policy Questions Congressional Research Service Summary Published reports have suggested that in the wake of the 9/11 terrorist attacks, the Pentagon has expanded its counterterrorism intelligence activities as part of what the Bush Administration termed the global war on terror. Some observers have asserted that the Department of Defense (DOD) may have been 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 have asserted that none of DOD’s current counterterrorism 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 counterterrorism missions; to prepare for potential missions to disrupt, capture or kill them; and to help local militaries conduct counterterrorism missions of their own. 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. In committee report language accompanying P.L. 111-259, the FY2010 Intelligence Authorization Act, the House Permanent Select Committee on Intelligence (HPSCI) expressed its concern that the distinction between the CIA’s intelligence-gathering activities and DOD’s clandestine operations is becoming blurred and called on the Defense Department to meet its obligations to inform the committee of such activities. Perhaps in an effort to bring more clarity to the covert action issue, Department of Defense officials early in the 112th Congress stated that current statute could be updated to reflect U.S. Special Operations Command’s list of core tasks and the missions assigned to it in the Unified Command Plan. But in doing so, they also noted that Section 167 includes “such other activities as may be specified by the President or the Secretary of Defense,” which, they argued, provides the President and the Secretary flexibility to meet changing circumstances. Covert Action: Legislative Background and Possible Policy Questions Congressional Research Service Covert Action: Legislative Background and Possible Policy Questions Congressional Research Service Contents Introduction ...................................................................................................................................... 1 Background ...................................................................................................................................... 1 Post 9/11 Concerns .......................................................................................................................... 3 Current Statute Governing Covert Actions ...................................................................................... 6 Exceptions Under the Statutory Definition of Covert Action .......................................................... 7 Traditional Military Activities ......................................................................................................... 7 Routine Support of Traditional Military Activities .......................................................................... 8 House Intelligence Committee Calls on DOD to Inform Committee of Intelligence Activities ....................................................................................................................................... 8 Possible Policy Issues in the 112th Congress ................................................................................... 9 Contacts Author Contact Information........................................................................................................... 10 Covert Action: Legislative Background and Possible Policy Questions Congressional Research Service 1 Introduction 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, has contended 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 apparent or acknowledged publicly.”1 The 1991 statutory changes remain in effect today. This report examines the legislative background surrounding covert action and poses several related policy questions. Background 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 of Congress with a description and scope of each operation in a timely fashion.2 The phrase “timely fashion” was not defined in statute. In 1980, Congress endeavored to provide the two new congressional intelligence committees with a more comprehensive statutory framework under which to conduct oversight.3 As part of this effort, Congress repealed the HughesRyan 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 §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. Covert Action: Legislative Background and Possible Policy Questions Congressional Research Service 2 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 notice.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 missiles to Iran.5 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 Directives. 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, Congress approved the changes.6 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 provided, and that prior notice could only be withheld in “exigent circumstances.”7 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 and the President signed into law the new measures.8 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 §503 of the National Security Act of 1947 [50 U.S.C. 413b]. Covert Action: Legislative Background and Possible Policy Questions Congressional Research Service 3 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 remain in effect today.9 Post 9/11 Concerns 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 American authorities, and one that encroaches on the CIA’s realm.10 It has been suggested that the Pentagon has adopted a broad definition of its current authority to conduct “traditional military activities” and “prepare the battlefield.”11 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, rather than to any difference in the activity it is conducting.12 These same officials, however, also reportedly contend that American troops were now more likely to be working with indigenous 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 million 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 FY2011. In the FY2012 Defense Authorization bill, H.R. 1540, approved by both House and Senate in December 2011, $50 million was made available until the end of FY2014. 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 §1208, P.L. 110-417. In February 2011, the Acting Undersecretary of Defense for Intelligence said that §1208 “has been a critical authority for the war with al Qa’ida and for counterterrorism and related counterinsurgency operations in Iraq and Afghanistan.” When asked if changes to the authority or funding restrictions were needed, the Acting USDI said that he supported the current request for additional funding authority, from $40 million to $50 million and extending the authority for the duration of armed counterterrorist operations and for other contingencies. See “Hearings,” February, 2011, Advance Policy Questions, The Honorable Michael G. Vickers to be Under Secretary of Defense for Intelligence, Question 7, See http://armed-services.senate.gov. 10 Eric Schmitt, New York Times, “Clash Foreseen 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. 11 Ibid. 12 Ibid. Covert Action: Legislative Background and Possible Policy Questions Congressional Research Service 4 forces in countries like Iraq or Afghanistan to combat stateless terrorist organizations and need as much flexibility as possible.13 Late 2008 media reports 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 militants in Syria, Pakistan, and elsewhere.14 According to other media reports, DOD has been paying 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 may or may not be non-attributable to coalition forces.15 Adding even more complexity to DOD and CIA mission differences, according to then-Director of National Intelligence Dennis C. Blair, is that there often is not a “bright line” between traditional secret intelligence missions carried out by the military and those by the CIA, requiring that such operations be considered on a case-by-case basis.16 Mr. Blair said the executive branch would be guided by two criteria. First, the President and those in the military and intelligence chains of command would maintain the flexibility to design and execute an operation solely for the purpose of accomplishing the mission. Second, he said, such operations would be approved by the appropriate authorities, coordinated in the field, and reported to the relevant congressional committees, including the Intelligence, Armed Services, and Appropriations Committees.17 Former DNI Blair’s views appear to comport with comments previously made by former CIA Director Michael Hayden, who reportedly stated that it has become more difficult to distinguish between traditional secret military and CIA intelligence missions and that any problems resulting from overlapping missions would be resolved case-by-case.18 Stating the military’s perspective, General James R. Clapper, Jr., the Pentagon’s former 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 13 Ibid. 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 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 See “Questions for the Record for Admiral Dennis C. Blair upon nomination to be Director of National Intelligence,” Senate Select Committee on Intelligence, January 22, 2009. See the Senate Intelligence Committee’s website http://intelligence.senate.gov, “Recent Action,” “Responses to Dennis C. Blair Post-hearing Questions,” and “Covert Action.” 17 Now retired, Admiral Blair, argued in a November 2011 policy forum that covert action that “goes on for years doesn’t generally stay covert” and that there should be “strong consideration to running those [types of covert actions] as military operations.” Further, “within the armed forces we have a set of procedures that are open, known for how you make decisions about when to use deadly force or not, levels of approval, degrees or proof and so on and they are things that can be and should be out.” See Scott Horton, “Blair Addresses the CIA, Drones, and Pakistan,” Harper’s online magazine, http://harpers.org/archive/2011/12/hbc-90008329. 18 See Karen DeYoung and Walter Pincus, Washington Post, “U.S. to fund Pro-American Publicity in Iraqi Media,” October 3, 2008, p. A-1. 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. Covert Action: Legislative Background and Possible Policy Questions Congressional Research Service 5 forces.”19 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 activities.20 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 behavior of a target.21 In comments before the committee, he further noted that clandestine activity can be conducted in support of a covert activity.22 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 inadvertently revealed.23 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 activities) from an oversight perspective and as well [sic] as a risk perspective.”24 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 the degree of congressional oversight accorded to covert actions. Others contend that increased oversight would hamper the military’s effectiveness.25 The Senate Intelligence Committee expressed its concern that the then-USD(I) has interpreted Title 10 to expand “military source operations” authority, thus allowing the Services and Combatant Commands to conduct clandestine HUMINT operations worldwide. “These activities can come awfully close to activities that constitute covert action,” the committee stated in questions for the record posed to DNI following his confirmation hearing before the committee.26 Mr. Clapper would subsequently become Director of National Intelligence in August 2010. Perhaps in an effort to bring clarity to the covert action issue, Department of Defense officials early in the 112th Congress stated that the law could be updated to reflect U.S. Special Operations Command’s current list of core task and the missions assigned to it in the Unified Command Plan. But in doing so, they also noted that Section 167 includes “such other activities as may be 19 See U.S. Senate Armed Services Committee hearing transcript on Department of Defense, March 27, 2007. 20 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. Mr. Clapper was subsequently nominated and in June 2010 confirmed by the Senate as Director of National Intelligence. 21 See U.S. Senate Armed Services Committee hearing transcript on Department of Defense, March 27, 2007, p. 23. 22 Ibid. 23 Ibid. 24 Ibid. 25 Helen Fessenden, CQ Weekly, “Intelligence: Hill’s Oversight Role At Risk,” March 27, 2004, p. 734. 26 See “Questions for the Record for Admiral Dennis Blair Upon Nomination to be Director of National Intelligence, January 22, 2009,” Covert Action http://intelligence.senate.gov/090122/blairresponses2.pdf. Covert Action: Legislative Background and Possible Policy Questions Congressional Research Service 6 specified by the President or the Secretary of Defense,” which they argued provides the President and the Secretary the flexibility to meet changing circumstances.27 Current Statute Governing Covert Actions The current statute with regard to covert action remains virtually unchanged since it was signed into law in 1991.28 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,29 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 occurred. • 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 actions. • 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 acknowledged publicly.”30 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 27 See “Hearings,” February, 2011, Advance Policy Questions, The Honorable Michael G. Vickers to be Under Secretary of Defense for Intelligence, Question 8 http://armed-services.senate.gov. 28 §503 of the National Security Act of 1947 [50 U.S.C. 413b]. 29 Joint Explanatory Statement of the Committee of Conference, H.R. 1455, July 25, 1991. 30 Ibid. Covert Action: Legislative Background and Possible Policy Questions Congressional Research Service 7 misleading a potential adversary to the true nature of U.S. military capabilities, intentions or 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, according to the conferees.31 Exceptions Under the Statutory Definition of Covert Action 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; and (4) activities to provide routine support to the overt activities (other than activities described in the first three categories) of other U.S. government agencies abroad.32 This report addresses the second category of activities— traditional military activities and routine support to those activities. Traditional Military Activities Conferees stated: 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 commander should not be considered as “traditional military activities.”33 31 Ibid. 32 Ibid. 33 Joint Explanatory Statement of the Committee of Conference, H.R. 1455, July 25, 1991. Covert Action: Legislative Background and Possible Policy Questions Congressional Research Service 8 Routine Support of Traditional Military Activities 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 for an explanation of the term.34 The report accompanying the Senate bill35 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-thanroutine” 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. House Intelligence Committee Calls on DOD to Inform Committee of Intelligence Activities In committee report language accompanying the FY2010 Intelligence Authorization Act, the House Permanent Select Committee on Intelligence (HPSCI) expressed its concern that the distinction between the CIA’s intelligence-gathering activities and DOD’s clandestine operations is becoming blurred and called on the Defense Department to meets its obligations to inform the committee of such activities.36 34 Ibid. 35 S.Rept. 102-85, S. 1325, 102nd Congress, 1st Session (1991). 36 See H.Rept. 111-186, accompanying H.R. 2701, the FY2010 Intelligence Authorization Act. See “Committee (continued...) Covert Action: Legislative Background and Possible Policy Questions Congressional Research Service 9 The committee said that DOD frequently labels its clandestine activities as “Operational Preparation of the Environment” (OPE) to distinguish particular operations as traditional military activities and not as intelligence functions. According to the committee’s report, the overuse of this term “has made the distinction all but meaningless” and there are no clear guidelines or principles for making consistent determinations in this regard.37 The committee stated: Clandestine military intelligence-gathering operations, even those legitimately recognized as OPE, carry the same diplomatic and national security risks as traditional intelligencegathering activities. While the purpose of many such operations is to gather intelligence, DOD has shown a propensity to apply the OPE label where the slightest nexus of a theoretical, distant military operation might one day exist. Consequently, these activities often escape the scrutiny of the intelligence committees, and the congressional defense committees cannot be expected to exercise oversight outside of their jurisdiction.38 If DOD does not meet its obligations to inform the committee of intelligence activities, the report warned, the committee would consider clarifying the department’s obligation to do so.39 Possible Policy Issues in the 112th Congress The lines defining mission and authorities with regard to covert action are less than clear. The lack of clarity raises a number of policy questions for the 112th Congress, including the following far-from-exclusive list. • How should Congress define its oversight role? Which committees should be involved? • 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 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 (...continued) Statement and Views, D., Areas of Special Interest,” Oversight of Intelligence Activities. 37 Ibid. 38 Ibid. 39 Ibid. Covert Action: Legislative Background and Possible Policy Questions Congressional Research Service 10 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 order to clarify certain Pentagon authorities and covert action guidelines, should Congress consider updating Section 167 of Title 10 to reflect U.S. Special Operations Command’s current list of core task and the missions assigned to it in the Unified Command Plan? 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. Author Contact Information Marshall Curtis Erwin Analyst in Intelligence and National Security merwin@crs.loc.gov, 7-7739 THE AGENCY AND THE HILL: CIA’s Relationship with Congress, 1946–2004 L. Britt Snider The Center for the Study of Intelligence CSI was founded in 1974 in response to Director of Central Intelligence James Schlesinger’s desire to create within CIA an organization that could “think through the functions of intelligence and bring the best intellects available to bear on intelligence problems.” The center, comprising professional historians and experienced practitioners, attempts to document lessons learned from past operations, explore the needs and expectations of intelligence consumers, and stimulate serious debate on current and future intelligence challenges. To support these activities, CSI publishes Studies in Intelligence and books and monographs addressing historical, operational, doctrinal, and theoretical aspects of the intelligence profession. It also administers the CIA Museum and maintains the Agency’s Historical Intelligence Collection. Comments and questions may be addressed to: Center for the Study of Intelligence Central Intelligence Agency Washington, DC 20505 Printed copies of this book are available to requesters outside the US government from: Government Printing Office (GPO) Superintendent of Documents PO Box 391954 Pittsburgh, PA 15250-7954 Phone (202) 512-1800 E-mail: Orders@gpo.gov ISBN: 978-1-929667-17-8 GPO Stock#: 04101500257-1 All statements of fact, opinion, or analysis expressed in this book are those of the author. They do not necessarily reflect official positions of the Central Intelligence Agency or any other US government entity, past or present. Nothing in the contents should be construed as asserting or implying US government endorsement of the author’s factual statements and interpretations. THE AGENCY AND THE HILL The Center for the Study of Intelligence Central Intelligence Agency Washington, DC 20505 Library of Congress Cataloguing-inPublications D...
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