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Covert Action: Legislative Background and Possible Policy Questions

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Publication Date: February 2009

Publisher(s): Library of Congress. Congressional Research Service

Series: RL33715

Topic: Military and defense (National security)


Published reports have suggested that in the wake of the 9/11 terrorist attacks, the Pentagon has expanded its counter-terrorism intelligence activities as part of the global war on terror. Some observers have asserted that the Department of Defense (DOD) may be conducting certain kinds of counterterrorism intelligence activities that would statutorily qualify as "covert actions," and thus require a presidential finding and the notification of the congressional intelligence committees.

Defense officials assert that none of DOD's current counter-terrorist intelligence activities constitute covert action as defined under the law, and therefore, do not require a presidential finding and the notification of the intelligence committees. Some of these DOD's activities have been variously described publicly as efforts to collect intelligence on terrorists that will aid in planning counter-terrorism missions; to prepare for potential missions to disrupt, capture or kill them; and to help local militaries conduct counter-terrorism missions of their own.

Senior U.S. intelligence community officials have conceded that the line separating CIA and DOD intelligence activities has blurred, making it more difficult to distinguish between the traditional secret intelligence missions carried out by each. In some of their public comments, however, these officials have not specifically addressed the issue of whether Pentagon counter-terrorist activities meet the legal definition of covert actions.

This report examines the statutory procedures governing covert action and associated questions to consider. This report will be updated as warranted.