Constitutionality o f Proposed Statutory Provision Requiring Prior Congressional Notification for Certain CIA Covert Actions A proposed statutory provision that would oblige the President to notify Congress of any and all covert actions (other than those for the purpose of intelligence-gathering) to be funded out of the Reserve for Contingencies, regardless of the circumstances, would unconstitutionally infringe upon the President’s constitutional responsibilities, including his duty to safeguard the lives and interests of Americans abroad.
July 31, 1989
M emorandum O p in io n for the Attorney G en eral
This is in response to your request for our opinion on the constitu tionality o f a proposed amendment to section 502 o f the National Security Act, 50 U.S.C. § 414. That amendment would prohibit the expenditure or obligation o f any funds from the “Reserve for Con tingencies” for any covert action in a foreign country (other than for the purpose o f intelligence-gathering) if the President has not first notified the appropriate congressional committees o f the proposed expenditure. For the reasons stated below, we believe such a requirement is an un constitutional condition on the President’s authority to conduct covert activities abroad pursuant to the President’s constitutional responsibil ities, including his responsibility to safeguard the lives and interests o f Americans abroad. Title 22, section 2422, of the United States Code, prohibits the expen diture o f funds
by or on behalf of the Central Intelligence Agency for oper ations in foreign countries, other than activities intended solely for obtaining necessary intelligence, unless and until the President finds that each such operation is important to the national security o f the United States.
The proposed amendment would further limit the President’s ability to conduct certain intelligence activities important to the national security o f the United States. It would add as a proviso to section 502 o f the
258 National Security Act, 50 U.S.C. § 414, a requirement that “no funds from the Reserve for Contingencies may be expended for any operation or activity for which the approval o f the President is required by section 662 o f the Foreign Assistance Act o f 1961 (22 U.S.C. § 2422), or for any sig nificant change to such operation or activity, for which prior notice has been withheld.” We believe the proposed amendment is unconstitutional because it would oblige the President to notify Congress o f any and all covert actions to be funded out o f the Reserve for Contingencies, regardless o f the circumstances. It would apply even if the President is directing an extremely sensitive national security activity within his exclusive respon sibility under the Constitution. We need not define all that is compre hended within the grant to the President o f “the executive Power ... o f the United States o f America,” U.S. Const, art. II, § 1. At a minimum, that power encompasses the authority to direct certain covert actions without first disclosing them to Congress, among which are those actions neces sary to protect the lives and property o f Americans abroad. Early judicial recognition o f this authority o f the President to take action to protect Americans abroad came during a mid-nineteenth century revolution in Nicaragua. On the President’s orders, a naval gunship bombarded a town where a revolutionary government had engaged in violence against Americans and their property. Of this action it was said:
As the executive head o f the nation, the president is made the only legitimate organ o f the general government, to open and carry on correspondence or negotiations with foreign nations, in matters concerning the interests o f the country or o f its citizens. It is to him, also, the citizens abroad must look for protection of person and o f property ....
Now, as it respects the interposition o f the executive abroad, fo r the protection o f the lives or property of the cit izen, the duty must, of necessity, rest in the discretion of the president.
Durand v. Hollins, 8 F. Cas. I l l , 112 (C.C.S.D.N.Y. 1860) (No. 4186) (emphasis added). At least to the extent the amendment would limit that authority, it is unconstitutional. The courts have also recognized that the President must be able to act secretly in order to meet his constitutional responsibilities in foreign affairs. In United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320-21 (1936), the Court expressly endorsed President Washington’s refusal to provide the House o f Representatives with information about treaty negotiations even after the negotiations had been concluded. A for tiori, such information could be withheld during the negotiations.
259 The Court has more recently emphasized that the core presidential responsibility for protecting confidential national security interests extends beyond matters concerning treaties and into diplomatic and mil itary secrets such as covert actions. United States v. Nixon, 418 U.S. 683, 712 n.19 (1974) (recognizing the “President’s interest in preserving state secrets”). This conclusion is rooted in the original conception o f the President’s Office, as described by John Jay in the Federalist. There, he spoke o f the need for “perfect secrecy and immediate dispatch” in the field o f diplomacy and intelligence gathering.1He continued:
The convention have done well, therefore, in so disposing o f the power o f making treaties that although the President must, in forming them, act by the advice and consent o f the Senate, yet he will be able to manage the business o f intel ligence in such manner as prudence may suggest.
Id. at 392-93 (emphasis added). We believe that because the Constitution permits the President, where necessary, to act secretly to achieve vital national security objectives abroad, a rigid requirement o f prior notice for covert operations imper missibly intrudes upon his constitutional authority. As the Durand court recognized, the grant o f executive power is the principal textual source of the President’s discretion to act for the Nation in foreign affairs. From the First Congress on, this grant has been con strued to afford the President discretion to act in the field o f foreign affairs. This broad power in matters o f foreign policy stands in contrast to his comparatively limited authority to act alone in the domestic con text. President Washington, fo r example, asserted the President’s prerog ative to communicate with Citizen Genet when he sought something for a consul, and addressed that request to “the Congress o f the United States.” It was President Washington who asserted the President’s author ity to determine the status o f foreign representatives when he later demanded Citizen Genet’s recall. President Washington also determined, without consulting Congress, that the United States would remain impar tial in the war between France and Great Britain; he also refused to share with the House o f Representatives sensitive information about the nego tiation o f the Jay Treaty with Great Britain. The First Congress recog nized that the conduct o f our foreign affairs was to be primarily the responsibility o f the President, and for that reason located the State Department in the executive branch.
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Constitutionality o f Proposed Statutory Provision Requiring Prior Congressional Notification for Certain CIA Covert Actions A proposed statutory provision that would oblige the President to notify Congress of any and all covert actions (other than those for the purpose of intelligence-gathering) to be funded out of the Reserve for Contingencies, regardless of the circumstances, would unconstitutionally infringe upon the President’s constitutional responsibilities, including his duty to safeguard the lives and interests of Americans abroad.
July 31, 1989
M emorandum O p in io n for the Attorney G en eral
This is in response to your request for our opinion on the constitu tionality o f a proposed amendment to section 502 o f the National Security Act, 50 U.S.C. § 414. That amendment would prohibit the expenditure or obligation o f any funds from the “Reserve for Con tingencies” for any covert action in a foreign country (other than for the purpose o f intelligence-gathering) if the President has not first notified the appropriate congressional committees o f the proposed expenditure. For the reasons stated below, we believe such a requirement is an un constitutional condition on the President’s authority to conduct covert activities abroad pursuant to the President’s constitutional responsibil ities, including his responsibility to safeguard the lives and interests o f Americans abroad. Title 22, section 2422, of the United States Code, prohibits the expen diture o f funds
by or on behalf of the Central Intelligence Agency for oper ations in foreign countries, other than activities intended solely for obtaining necessary intelligence, unless and until the President finds that each such operation is important to the national security o f the United States.
The proposed amendment would further limit the President’s ability to conduct certain intelligence activities important to the national security o f the United States. It would add as a proviso to section 502 o f the
258 National Security Act, 50 U.S.C. § 414, a requirement that “no funds from the Reserve for Contingencies may be expended for any operation or activity for which the approval o f the President is required by section 662 o f the Foreign Assistance Act o f 1961 (22 U.S.C. § 2422), or for any sig nificant change to such operation or activity, for which prior notice has been withheld.” We believe the proposed amendment is unconstitutional because it would oblige the President to notify Congress o f any and all covert actions to be funded out o f the Reserve for Contingencies, regardless o f the circumstances. It would apply even if the President is directing an extremely sensitive national security activity within his exclusive respon sibility under the Constitution. We need not define all that is compre hended within the grant to the President o f “the executive Power ... o f the United States o f America,” U.S. Const, art. II, § 1. At a minimum, that power encompasses the authority to direct certain covert actions without first disclosing them to Congress, among which are those actions neces sary to protect the lives and property o f Americans abroad. Early judicial recognition o f this authority o f the President to take action to protect Americans abroad came during a mid-nineteenth century revolution in Nicaragua. On the President’s orders, a naval gunship bombarded a town where a revolutionary government had engaged in violence against Americans and their property. Of this action it was said:
As the executive head o f the nation, the president is made the only legitimate organ o f the general government, to open and carry on correspondence or negotiations with foreign nations, in matters concerning the interests o f the country or o f its citizens. It is to him, also, the citizens abroad must look for protection of person and o f property ....
Now, as it respects the interposition o f the executive abroad, fo r the protection o f the lives or property of the cit izen, the duty must, of necessity, rest in the discretion of the president.
Durand v. Hollins, 8 F. Cas. I l l , 112 (C.C.S.D.N.Y. 1860) (No. 4186) (emphasis added). At least to the extent the amendment would limit that authority, it is unconstitutional. The courts have also recognized that the President must be able to act secretly in order to meet his constitutional responsibilities in foreign affairs. In United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320-21 (1936), the Court expressly endorsed President Washington’s refusal to provide the House o f Representatives with information about treaty negotiations even after the negotiations had been concluded. A for tiori, such information could be withheld during the negotiations.
259 The Court has more recently emphasized that the core presidential responsibility for protecting confidential national security interests extends beyond matters concerning treaties and into diplomatic and mil itary secrets such as covert actions. United States v. Nixon, 418 U.S. 683, 712 n.19 (1974) (recognizing the “President’s interest in preserving state secrets”). This conclusion is rooted in the original conception o f the President’s Office, as described by John Jay in the Federalist. There, he spoke o f the need for “perfect secrecy and immediate dispatch” in the field o f diplomacy and intelligence gathering.1He continued:
The convention have done well, therefore, in so disposing o f the power o f making treaties that although the President must, in forming them, act by the advice and consent o f the Senate, yet he will be able to manage the business o f intel ligence in such manner as prudence may suggest.
Id. at 392-93 (emphasis added). We believe that because the Constitution permits the President, where necessary, to act secretly to achieve vital national security objectives abroad, a rigid requirement o f prior notice for covert operations imper missibly intrudes upon his constitutional authority. As the Durand court recognized, the grant o f executive power is the principal textual source of the President’s discretion to act for the Nation in foreign affairs. From the First Congress on, this grant has been con strued to afford the President discretion to act in the field o f foreign affairs. This broad power in matters o f foreign policy stands in contrast to his comparatively limited authority to act alone in the domestic con text. President Washington, fo r example, asserted the President’s prerog ative to communicate with Citizen Genet when he sought something for a consul, and addressed that request to “the Congress o f the United States.” It was President Washington who asserted the President’s author ity to determine the status o f foreign representatives when he later demanded Citizen Genet’s recall. President Washington also determined, without consulting Congress, that the United States would remain impar tial in the war between France and Great Britain; he also refused to share with the House o f Representatives sensitive information about the nego tiation o f the Jay Treaty with Great Britain. The First Congress recog nized that the conduct o f our foreign affairs was to be primarily the responsibility o f the President, and for that reason located the State Department in the executive branch. The Supreme Court has recognized that the President alone is empowered to negotiate with foreign countries on behalf o f the United States. In Curtiss-Wright, 299 U.S. at 319, the Court stated:
1The Federalist , N o 64, at 392 (John J a y) (Clinton Rossiter ed , 1961).
260 Not only ... is the federal power over external affairs in origin and essential character different from that over inter nal affairs, but participation in the exercise o f the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative o f the nation. He makes treaties with the advice and consent o f the Senate; but he alone negotiates. Into the field o f negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.
Id. These examples could be expanded upon, but all buttress the conclu sion that the President’s authority with respect to foreign affairs is very broad, and that certain foreign affairs powers, such as the power to act (secretly if need be) to protect Americans abroad, inhere in his Office. Congress attempts to justify under its power o f the purse requiring prior notification o f all covert actions to be paid for out o f the Reserve for Contingencies. Congress’s authority incident to its power over the purse is broad, and generally includes the power to attach conditions to appro priations, but its power is by no means limitless. For example, Congress appropriates money for all federal agencies in all three branches o f gov ernment. But the fact that Congress appropriates money for the Army does not mean that it can constitutionally condition an appropriation on allowing its armed services committees to have tactical control o f the armed forces. Nor does it follow from Congress’ legislative establishment o f executive branch departments and its appropriation o f money to pay the salaries o f federal officials that Congress can constitutionally condi tion creation o f a department or the funding o f an officer’s salary on being allowed to appoint the officer. Interpreting the appropriations power in this manner would in effect transfer to Congress all powers o f the branches o f government. The Framers’ carefully worked out scheme o f separation o f powers, o f checks and balances, would be rendered mean ingless. Accordingly, however broad the Congress’ appropriations power may be, the power may not be exercised in ways that violate constitu tional restrictions on its own authority or that invade the constitutional prerogatives o f other branches. As the Supreme Court has said, “Lacking the judicial power given to the Judiciary, [Congress] cannot inquire into matters that are exclusively the concern o f the Judiciary. Neither can it supplant the Executive in what exclusively belongs to the Executive .” Barenblatt v. United States, 360 U.S. 109, 112 (1959) (emphasis added). This well-established doctrine o f unconstitutional conditions further prevents Congress from using its power over the appropriation o f public funds to attach conditions to executive branch appropriations requiring the President to relinquish his constitutional discretion in foreign affairs. Just as an individual may not be required to waive his constitutional
261 rights as a condition o f accepting public employment or benefits, so the President cannot be compelled to give up the authority o f his Office as a condition o f receiving the funds necessary to carrying out the duties of his office.2 Congress has also justified such reporting requirements on the basis o f its need for information to carry out its legislative function. This over sight power, however, is neither explicit, McGrain v. Daugherty, 273 U.S. 135, 161 (1927), nor “unlimited,” Watkins v. United States 354 U.S. 178, 187 (1957). It can be exercised only to further a legitimate legislative function traceable to one of Congress’ enumerated powers. See McGrain, 273 U.S. at 173-74. There is no enumerated power in the Constitution giv ing Congress the authority to require the President first to report to a con gressional committee prior to undertaking covert activities which are exclusively within his province. Any legislative purpose that would be served by informing Congress about a covert action can be served by notice after the covert action has been initiated or completed.3 Moreover, even in cases in which it can be assumed that Congress has a legitimate legislative basis for the requested information, it does not fol low that the President invariably should give Congress prior notice o f cer tain covert actions. As President Tyier recognized in 1843, “ [i]t can not be that the only test is whether the information relates to a legitimate sub je ct o f [congressional] deliberation.” 4 James D. Richardson, Messages and Papers o f the Presidents 220, 223 (1897). A President is under no obligation to communicate information to Congress if to do so would impair his ability to execute his own constitutional duties. United States v. Nixon, 418 U.S. 683, 710 (1974). Under some circumstances, prior notice to Congress could well frustrate the President’s ability to dis charge those duties. In concluding that the amendment is unconstitutional, we are not deny ing that Congress has a legitimate role in the formulation o f American for eign policy. Nor are we denigrating the value o f consulting with members o f Congress prior to the initiation o f a covert operation. We simply believe Congress does not require prior notification o f all intelligence activities paid for out of the Reserve for Contingencies in order to per form its legislative function. Therefore, it lacks the constitutional author ity to impose a rigid requirement of notice in all circumstances.
2The doctrine o f unconstitutional conditions has w ide application throughout the law For a good gen eral statement o f the doctrine, see Frost & Frost Trucking Co v. Railroad C om m ission, 271 U.S. 583, 594 (1926) I f the state may compel the surrender o f one constitutional nght as a condition o f its favor, it may, m like manner, compel the surrender o f all It is inconceivable that guaranties embed ded in the Constitution o f the United States may thus be manipulated out o f existence. 3 For instance, post-action notification w ill suffice to inform Congress about actions o f foreign nations and merchants so that it may regulate “foreign comm erce ”
262 Conclusion
We conclude that a requirement o f prior notice for all covert operations funded from the Reserve for Contingencies unconstitutionally infringes on the President’s constitutional responsibilities, including his duty to safeguard the lives and interests o f Americans abroad.
WILLIAM P. BARR Assistant Attorney General Office o f Legal Counsel