Document Type

Article

Publication Date

2009

Publication Information

53 Saint Louis University Law Journal 485 (2009)

Abstract

Long past the soul-searching of Watergate, very few people question the need for covert action as a part of American foreign policy. The world is so dangerous after 9/11 that it would be irresponsible to suggest that our intelligence agencies should be disbanded or that our government should acknowledge everything it does on the dark side. Today the question is not whether we should engage in covert action at all, but how often and under what circumstances.

Not everything stays secret. Our Nation has been conducting covert action with greater transparency and more congressional participation than during the Cold War. Despite the doomsayers, the statutory checks on covert action that started in the 1970s have not damaged the Nation.

This Article, casting additional light on covert action, provides a framework for answering two sets of questions: one about delegations of presidential authority to the Central Intelligence Agency, the other about notices to Congress. For background, this Article presents a selected history of covert action since World War II, and reviews the statutes and regulations that affect covert action’s legality. After that, this Article examines the extent to which the President may (and should) delegate authority for covert action, then balances the need for congressional oversight against the President’s prerogative to limit knowledge of covert action to a small and trusted group. Recognizing the need to protect intelligence sources and methods, this Article proposes a new executive order (or a new statute) to clarify and to publicize the internal procedures that take place before the United States fixes foreign elections, beams propaganda onto foreign radios, supplies weapons to insurgents who fight our enemies, or kills suspected terrorists with missiles from Predator drones.

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