   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

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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.

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   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).


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          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

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 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 ”

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                               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




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