Covert Action: Legislative Background and Possible Policy Questions

Richard A. Best Jr.
Specialist in National Defense

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.


Date of Report: December 27, 2011
Number of Pages: 13
Order Number: RL33715
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