Simpson i' cG n u t t c oy OfAct of Legil Counsel Murphy R ot R Pile m O C M S M O flfetrftM AttttCMtAttOdW GMMnl J u ly 31 1999 MEMORANDUM FOR DICK THORNBURGH Attorney General Ra Tha Constitutionality of tha Proooaad Limitation on the Uaa of tha CIA Raaarva for Contlnaanclaa This is in response to your request for our opinion on the constitutionality of a proposed amendment to section 502 of the National Security Act 50 U S C 414 now pending before the Senate 1 That amendment would prohibit the expenditure or obligation of any funds from the Reserve for Contingencies for any covert action in a foreign country other than for the purpose of intelligence-gathering if the President has not first notified the appropriate congressional committees of the proposed expenditure For the reasons stated below we believe such a requirement is an unconstitutional condition on the President's authority to conduct covert activities abroad pursuant to the President's constitutional responsibilities including his responsibility to safeguard the lives and interests of Americans abroad Title 26 Section 2422 of the United States Code prohibits the expenditure of funds on or on behalf of the Central Intelligence Agency for operations in foreign countries other than activities solely for obtaining necessary intelligence unless and until the President finds that each such operation is important to the national security of the United States The proposed amendment would further limit the President's ability to conduct certain intelligence activities important to the national security of the United States It would add as a proviso to section 502 of the National Security Act# 50 U S C $ 414 a requirement that no funds from the Reserve for 1 The amendment has been reported out of committee and is awaiting a floor vote 20 d 61299SF6 01 13SNRG0 1U93 dQ 30 1ddO WOdd t 0 8I S86T ST TI Contingencies may be expended for any operation or activity for which tha approval of tha Praaidant is raquirad by section 662 of tha Foraign Assistance Act of 1961 22 U s c s 2422 or for any significant change to auch oparation or activity for which priornotice has bean withheld We believe tha propoaad amendment is unconstitutional because it would oblige tha Praaidant to notify Congress of any a n d all covert actions to be funded out of tha Reserve for Contingencies regardless of the circumstances It would apply even if tha President is directing an extremely sensitive national security activity within his exclusive responsibility under tha Constitution We need not define all that is compre- hended within tha grant to tha President of the executive power of tha United States of 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 necessary to protect the lives and property of Americans abroad Early judicial recognition of this authority of 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 of the nation the president is made the only legitimate organ of the general government to open and carry on correspondence or negotiations with forsign nations in matters concerning the interests of the country or of its citizens It is to him also the citizens abroad must look for protection of person and of property Now as it respects the executive abroad for tha property of the citizens rest in the discretion of interposition of ths protection of the lives and the duty must of necessity ths President Durand v Hollins 8 F Cas 11 C C S D N Y 1860 No 4 106 emphasis added o At least to the extent the amendment would limit that authority it is unconstitutional The courts have also recognized that the President muet be able to act secretly in order to meet his constitutional responsibilities in foreign affairs In Curtias-wrialit the court expressly endorsed President Washington's refusal to provide the House of Representatives with information about treaty negotiations even after the negotiations had been concluded 299 U S at 320-321 A fortiori such information could be withheld during the negotiations - 0 d SLZ33SVS 01 2 - 13SNTCO IU931 d0 30Idd0 WQdd S0 8T 6861 SI'IT The Court ha more recently emphasized that the core presidential responsibility for protecting confidential national security interests extends beyond matters concerning treaties and into diplomatic and military secrets such as covert actions States V Mixon 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 of the President's Office as described by John Jay in the Federalist There he spoke of the need for perfect secrecy and immediate dispatch in the field of diplomacy and intelligence- gathering He continued i The convention have done well therefore so disposing of the power of treaties that although the President must in forming them act by the advice and consent of the Senate yet he will be able to manage the_business of intelligence in such manner as prudence mav augqeqt 1 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 of prior notice for covert operations impermissibly intrudes upon his constitutional authority As the Durand court recognized the grant of 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 construed to afford the President discretion to act in the field of foreign affairs This broad power in matters of foreign policy stands in contrast to his comparatively limited authority to act alone in the domestic context President Washington for example asserted the President's prerogative to communicate with Citizen Genet when he sought something for a consul and addressed that request to the congress of the United States It was President Washington who asserted the President's authority to determine the status of f o r e i g n representatives when he later demanded Citizen Genet's recall President Washington also determined without consulting Congress that the United States would remain impartial in the war between France and Great Britain he also refused to share with the House of Representatives sensitive information about the negotiation of the Jay Treaty with Great Britain The First Congress recognized that the conduct of our foreign affairs was to be primarily the responsibility of the President and for that reason located the State Department in the Executive Branch And the Supreme Court has recognized that the President alone is2 2 ed 1961 The Federalist No 64 at 392-393 J Jay C Rossiter emphasis in original - 3 - 0 d 6 L299St 6 01 naSNDOD HU931 dC BOIddO WOdd S0 8I 686V S V I empowered to negotiate with foreign countries on behalf of the United States Ln UrUJEfid State v Curtias-Wriaht Export rnrn 299 U S 304 319 1936 the Court stated Not only is the federal power over external affairs in origin and essential character different from that over internal affairs but participation in the exercise of that power is significantly limited In the vast and external realm with its important complicated delicate and manifold problems the President alone has the power to apeak or listen as a representative of the nation He makes treaties with the advice and consent of the Senate but he alone negotiates Into the field of negotiations the Senate cannot intrude and Congress itself is powerless to invade it Id emphasis in original These examples could be expanded upon but all buttress the conclusion 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 of the purse requiring prior notification of all covert actions to be paid for out of 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 appropriations but its power is by no means limitless For example Congress appropriates money for all federal agencies in all three branches of government But the tact 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 of the armed forces Nor does it follow from Congress's legislative establishment of Executive Branch departt manta and its appropriation of money to pay the salaries of federal officials that Congress can constitutionally condition creation of a department or the funding of an officer's salary on being allowed to appoint the officer Interpreting the appro'priations power in this manner would in effect transfer to o Congress all powers of the branches of government The Framers' carefully worked out scheme of separation of powers of checks a n d balances would be rendered meaningless Accordingly 1 however broad the Congress's appropriations power may be the 1 power may not be exercised in ways that violate constitutional restrictions on its own authority or that invade ths constitu- tional prerogatives of other branches As ths Supreme Court has o said Lacking the judicial power given to the Judiciary Congress cannot inquire into matters that are exclusively the concern of the Judiciary Neither can it supplant Executive - 4 - S0'd 61299Sfr6 01 GSNflQO W031 dG 33Idd0 UOdd 90 8T 6861 SL'IT in what exclusively belongs to thi-_ xacutlve Baranblatt v United States 360 U S 109 112 1959 emphasis added This well-established doctrine of unconstitutional conditions further prevents Congress from using its power over the appropriation of public funds to attach conditions to Executive Branch appropriations requiring the President to relinquish hie constitutional discretion in foreign affairs just as an individual may not be required to waive his constitutional rights as a condition of accepting public employment or benefits so the President cannot be compelled to give up the authority of his Office as a condition of receiving the funds necessary to carrying out the duties of his office 34 Congress has also justified such reporting requirements on the basis of its need for information to carry out its legisla- tive function This oversight power however is neither explicit McGrain v Daugherty 273 U S 135 161 1927 nor unlimited Watkins v United States 1957 It can be exercised only to further a legitimate legislative function traceable to one of Congress's enumerated powers see McGrain 273 U S at 173 74 There is no enumerated power in the Constitution giving Congress the authority to require the President first to report to a congressional 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 Moreover even in cases in which it can be assumed that Congress has a legitimate legislative basis for the requested information it does not follow that the President invariably should give Congress prior notice of certain covert actions As President Tyler recognized in 1843 i t cannot be that the only test is whether the information relates to a legitimate subject 3 The doctrine of unconstitutional conditions has wide application throughout the law For a good general statement of the doctrine see Frost Frost Trucking Co v Railroad Commission 271 U S 583 594 1926 J It the statute compel the surrender of one constitutional right as a condition of its favor it may in like manner compel the surrender of all It is inconceivable that the guaranties embedded in the Constitution of the United States may thus ba manipulated out of existence 4 For instance post-action notification will suffice to inform Congress about actions of foreign nations and merchants so that it may regulate foreign commerce - 5 - 9 0 'd 6 L399St6 01 13SNITQ 30 301330 WG33 10 81 686I SI TI of congressional deliberation 5 J Richardson Meaaao g P a p a r a of the Presidents 2076 A President is under no obliga- tion to communicate information to Congress if to do so would impair his ability to execute his own constitutional duties Spited states v flixon 418 U S 683 710 1974 Under some circumstances prior notice to Congress could well frustrate the President's ability to discharge those duties In concluding that the amendment is unconstitutional we are not denying that Congress has a legitimate role in the formula- tion of American foreign policy Hor are we denigrating the value of consulting with members of Congress prior to ths initiation of a covert operation We simply believe Congress does not require prior notification of all Intelligence activities paid for out of the Reserve in order to perform its legislative function Therefore it lacks the constitutional authority to impose a rigid requirement of notice in all circumstances c o n c lu s io n We conclude that a requirement of 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 end interests of Americans abroad William p Barr Assistant Attorney General Office of Legal Counsel 6 LQ'd ScZ99S 6 Oi IBSNnOj - dG 3DIddO NOdd J 0 9I 686I SI TT This document is from the holdings of The National Security Archive Suite 701 Gelman Library The George Washington University 2130 H Street NW Washington D C 20037 Phone 202 994-7000 Fax 202 994-7005 nsarchiv@gwu edu