Secrecy and Oversight: U.S. Law and the Domestic Politics of Covert Action

• In Event: Internal Power Struggle: Domestic Constraints on Foreign Policy

Abstract

Scholars have focused on the choice of covert action over overt use of military force. But covert action is not monolithic—it includes psychological, political, economic, and paramilitary activity—and current theories do not explain under what conditions each covert option is chosen. This project arose from the burgeoning literature on secrecy in international relations, and the question of what constraints, if any, states face when they act in secret. This project argues that even when states act against target states in a way that preserves plausible deniability, those actions are still constrained, in some ways, by law. This project leverages the variation in the laws that regulate covert action to explain the variation in how different components of covert action are used in interventions abroad.

I theorize that laws regulating the CIA’s capacity to conduct covert action can be categorized along two dimensions: authority (whether prohibitive or enabling) and doctrinal (whether substantive or procedural). The first dimension relates to the authority granted by the legislation—specifically, whether the legislation enables or prohibits activities related to covert action. The second dimension relates to a distinction in legal doctrine, specifically the division between procedural and substantive law. Substantive laws are those that implicate the foreign relations powers of the president by regulating specific types or locations of covert actions. Procedural laws are those that regulate the covert action decision-making process and the conditions under which Congress delegates power to the executive branch.

Relying on literature related to both elite bargaining and congressional oversight and control of the bureaucracy, I theorize that when Congress seeks to change the behavior of the CIA or the executive, it must either play to those groups’ interests or use its institutional levers of control. For example, Congress may use its powers to prevent funding or to change the structure or jurisdiction of the CIA. On the other hand, Congress may entice the CIA and president to act in accordance with its preferences by playing to those groups’ interests—such as autonomy or lax budgetary oversight.

But the role of law adds a second component to this analysis, beyond the effect of potential costs that can be imposed by Congress. Laws are formal statements of expectations of behavior that carry a form of obligatoriness. My project suggests that the target of the law—the CIA or the executive—may vary in how much it feels this obligatoriness and to what extent it sees these laws as valid reasons for abstaining from an action. For example, the president may more readily be willing to challenge Congress if the law is a type that can be seen to infringe on the president’s foreign policy-making authority, while the CIA may be more deferential to Congress and its power to delegate authority to the executive branch.

I use process tracing of primary decision-making documents from archival sources related to U.S. involvement in the Angolan Civil War from 1975-1989 and the post-Cold War Iranian arms pipeline to the Bosnian government from 1992-1995. These cases allow me to conduct a comparative case study by examining the influence of substantive, prohibitive laws and procedural, prohibitive laws. These cases thus provide variation both in the types of laws employed and the presidential administrations, allowing for both between-case and within-case variation.

My results suggest that covert actions are modified in response to legal regulation, but sometimes in ways that attempt to evade these laws. Specifically, substantive, prohibitive laws can result in an escalation of the violence of covert action, contrary to the intent of Congress. Third parties, especially those invested in but not actively participating in the conflict, serve as a vital conduit for this covert activity, but ensure an attenuated relationship to the United States.

Author

• Melinda Haas, University of Pittsburgh