Monday, December 14, 2009

Authority of Gang of Eight to Affect Covert Action

Even with statutory arrangements governing covert action, including Gang of Eight covert
actions, Congress does not have the authority under statute to veto outright a covert action.
Indeed, former Senator Howard Baker successfully pushed the inclusion in the 1980 legislative
package of a provision making clear that Congress did not have approval authority over the
initiation of any particular covert action.28

Nonetheless, the Gang of Eight Members, as do the intelligence committees, arguably have the
authority to influence whether and how such covert actions are conducted over time. For
example, Members could express opposition to the initiation of a particular covert action. Some
observers assert that in the absence of Members’ agreement to the initiation of the covert action
involved, barring such agreement, an administration would have to think carefully before
proceeding with such a covert action as planned.29

The Gang of Eight over time could also influence funding for such operations. Initial funding for
a covert action generally comes from the CIA’s Reserve for Contingency Fund, for which
Congress provides an annual appropriation. Once appropriated, the CIA can fund a covert action
using money from this fund, without having to seek congressional approval. But the executive
branch generally must seek additional funds to replenish the reserve on an annual basis. If the
Gang of Eight, including the two committee chairmen and ranking members were to agree not to
continue funding for a certain covert action, they arguably could impress on the membership of
the two committees not to replenish the reserve fund, providing they informed the committees of
the covert action, a decision which the congressional sponsors said they intended to be left to the
discretion of the Gang of Eight in any case.

Thus, the Gang of Eight could influence the intelligence committees to increase, decrease or
eliminate authorized funding of a particular covert action. Some observers point out, however,
that the leaders’ overall effectiveness in influencing a particular covert action turns at least as
much on their capability to conduct effective oversight of covert action as it does on their legal
authority.

Endnotes

28 National Security Act of 1947 as amended, Sec. 501[50 U.S.C. 413] (a) (2).

29 L. Britt Snider, The Agency and the Hill, CIA’s Relationship With Congress, 1946-2004, (Washington, D.C.: Center
For the Study of Intelligence, Central Intelligence Agency, 2008), p. 311. See also Mike Soraghan, “Reyes Backs
Pelosi On Intel Briefings,” The Hill, May 1, 2009. House Intelligence Committee Ranking Member Peter Hoekstra
reportedly stated that Members of Congress are able to challenge policies they disagree with. “This is nuts, this saying,
‘I couldn’t do anything,’” Hoekstra told the Hill, adding that he at least once complained to then President Bush and got
a policy changed, according to the newspaper.

No comments: