Covert Action and Clandestine Activities of The Intelligence Community: Selected Congressional Notification Requirements
Covert Action and Clandestine Activities of The Intelligence Community: Selected Congressional Notification Requirements
Covert Action and Clandestine Activities of The Intelligence Community: Selected Congressional Notification Requirements
Summary
Section 3091 of Title 50, U. S. Code requires the President of the United States to ensure that the
congressional intelligence committees are “kept fully and currently informed of the intelligence
activities of the United States, including any significant anticipated intelligence activity,”
significant intelligence failures, illegal intelligence activities, and financial intelligence activities.
In fulfilling this statutory requirement, the President must notify Congress of all covert actions
and significant clandestine activities of the Intelligence Community (IC). Congress’s interest in
being kept informed of these activities originated from instances in the 1970s when media
disclosure of past intelligence abuses during times of relatively limited congressional oversight
underscored the importance of Congress taking a more active role. Over time, these notification
requirements were written into statute or became customary.
Covert action is codified in Title 50, U.S. Code as an intelligence activity or activities of the
United States Government to influence political, economic, or military conditions abroad, where
it is intended that the role of the United States will not be apparent or acknowledged publicly. The
term clandestine describes a methodology used for a range of sensitive intelligence and military
activities—conducted under Title 50 or Title 10 U.S. Code authority—in which the activity itself,
as well as U.S. sponsorship, is secret. Congress’s particular interest in these activities is, in part,
due to the characteristics that they have in common: they involve particularly sensitive sources
and methods, have significant implications for U.S. foreign relations, and incur serious risk of
damage to U.S. national security or loss of life in the event of exposure or compromise.
Different committees exercise oversight jurisdiction depending upon how a particular activity is
defined and the statutory authority under which it is conducted. Most intelligence activities, to
include covert action, are authorized under Title 50, U.S. Code. Title 10, U.S. Code provides
authorities for the military, to include clandestine activities of the military.
The President and intelligence committees are responsible for establishing the procedures for
notification, which are generally to be done in writing. Partly in deference to this higher standard,
such notifications are sometimes limited to specific subgroups of Members of the Senate and the
House of Representatives in certain circumstances, as defined by law and custom.
This report is accompanied by two related reports: CRS Report R45175, Covert Action and
Clandestine Activities of the Intelligence Community: Selected Definitions, by Michael E.
DeVine, and CRS Report R45196, Covert Action and Clandestine Activities of the Intelligence
Community: Framework for Congressional Oversight In Brief, by Michael E. DeVine.
Contents
Non-Covert Action Intelligence Activities ...................................................................................... 1
Sensitive Intelligence Activities Other Than Covert Action ..................................................... 1
Covert Action .................................................................................................................................. 2
Sensitive DOD Activities ................................................................................................................ 4
Traditional Military Activities ................................................................................................... 4
Operational Preparation of the Environment ...................................................................... 5
Routine Support to Traditional Military Activities ................................................................... 5
Other-than-Routine Support to Traditional Military Activities ........................................... 6
Military Cyber Operations Not Constituting Covert Action ..................................................... 7
Cyber Weapons ................................................................................................................... 7
Clandestine Military Activities or Operations in Cyberspace ............................................. 7
Sensitive Military Operations ................................................................................................... 8
Sensitive Military Cyber Operations .................................................................................. 9
Defense Clandestine Service Activities................................................................................... 10
Counterterrorism Operations ................................................................................................... 10
Issues for Congress ........................................................................................................................ 10
Contacts
Author Information......................................................................................................................... 11
Notification
Generally, notifications shall be made within 14 days of a “final determination … that a
significant activity should be reported” to Congress.4 They should be in writing and include the
nature of the circumstances and an explanation of their significance.5
1 Oral notifications shall be followed by a written notification. See Intelligence Collection Directive (ICD) 112,
Congressional Notification, June 29, 2017 at https://www.dni.gov/files/documents/71017/6-29-17_ICD-112_17-
00383_U_SIGNED.PDF. ICD-112 applies to the reporting of intelligence activities to the congressional intelligence
committees with the exception of covert action. Congressional notification of covert action is governed by 50 U.S.C.
§3093 which does not have an implementing ICD.
2 Ibid.
3 Ibid. The reporting criteria outlined in ICD-112 are not exhaustive and encompass more activities than the intelligence
5 ICD-112(E)(4)(b).
the SSCI—a group sometimes referred to colloquially as the Four Corners, or the Gang of Four.
Similar notifications pre-date the establishment of the congressional intelligence committees in
the 1970s. Briefings were used to inform relevant congressional committee leadership of
especially sensitive intelligence matters, including both covert action and routine intelligence
collection programs. Observers characterized them as being oral, often cursory, and limited to
committee chairmen and ranking members, plus one or two senior staff members.6
Notification
Provision of Four Corners or Gang of Four notifications is not a statutory requirement, and is not
referenced in the rules of either of the two congressional intelligence committees. Reportedly, the
leadership and Members of the intelligence committees have accepted this practice in
circumstances where the executive branch believes a non-covert action intelligence activity
warrants restricted notification in order to reduce the risk of disclosure, inadvertent or otherwise.7
Covert Action
Covert action is defined in Title 50 of the U.S. Code as “an activity or activities of the United
States Government to influence political, economic, or military conditions abroad, where it is
intended that the role of the United States will not be apparent or acknowledged publicly.”8
The President may authorize the conduct of a covert action only if he or she determines such an
action is “necessary to support identifiable foreign policy objectives of the United States, and is
important to the national security of the United States.”9
Section 3093 of Title 50, U. S. Code sets out how the congressional intelligence committees are to
be informed of covert actions, to include the use of cyber capabilities when employed in a covert
action.10
Notification
The President must notify the congressional intelligence committees via a “finding” as soon as
possible after approving a covert action.11 Findings must be made in writing unless the President
determines immediate action is required. If time constraints prevent prior notification, a written
finding is required as soon as possible, but not later than 48 hours, after the President authorizes a
6 See David M. Barrett, The CIA and Congress: The Untold Story from Truman to Kennedy (Lawrence, KS: University
Press of Kansas, 2005), pp. 100-103. See also L. Britt Snider, The Agency and the Hill: CIA’s Relationship with
Congress, 1946-2004, (Washington D.C.: CIA Center for the Study of Intelligence, 2008), p. 281, and Frank J. Smist,
Congress Oversees the Intelligence Community, 2nd ed. (Knoxville: University of Tennessee Press, 1994), p. 119.
7 Vicki Divoll, “Congress’s Torture Bubble,” The New York Times, May 12, 2009, at
https://www.nytimes.com/2009/05/13/opinion/13divoll.html.
8 50 U.S.C. §3093(e). See also CRS Report R45175, Covert Action and Clandestine Activities of the Intelligence
primary purpose of acquiring intelligence, traditional counterintelligence activities, traditional activities to improve or
maintain the operational security of U.S. government programs, or administrative activities; (2) traditional diplomatic
or military activities or routine support to such activities; (3) traditional law enforcement activities conducted by U.S.
government law enforcement agencies or routine support to such activities; or (4) activities to provide routine support
of any other overt activities of other U.S. government agencies abroad.
10 The statute governing notification requirements for cyber capabilities when employed as a covert action can be found
in 10 U.S.C. §396(c)(2). This statute references the notification requirements for covert action generally under 50
U.S.C. §3093.
11 50 U.S.C. §3093(a) and (c)(1).
particular covert action.12 Findings may not be used to authorize or sanction a covert action, or
any aspect of any such action, that already has occurred.13 Nor may they be used to authorize any
action that would violate the Constitution or any statute of the United States.14
Findings are to specify each department, agency, or entity of the U.S. government authorized to
fund or otherwise participate in any significant way in the activity.15 They also are to specify
whether it is contemplated that any third party that is not an element of, or a contractor or contract
agent of the U.S. government, or that is not otherwise subject to U.S. government policies and
regulations, will be used to fund or otherwise participate in any significant way, or be used to
undertake the covert action on behalf of the United States.16 The President is also required to keep
the congressional intelligence committees informed of any significant change to a previously
approved finding or any development involving a significant risk of loss of life, expansion of
existing authorities, expenditure of significant funds or resources, risk of compromise of
intelligence sources or methods, or a foreseeable risk of serious damage to U.S. diplomatic
relations.17
12 50 U.S.C. §3093(a)(1).
13 50 U.S.C. §3093(a)(2).
14 50 U.S.C. §3093(a)(5).
15 Although historically covert action is most closely associated with the Central Intelligence Agency (CIA), the
statutory definition allows for other departments and agencies of the U. S. Government, including the Department of
Defense, to conduct covert action as well. See 50 U.S.C. §3093(a)(3).
16 50 U.S.C. §3093(a)(4).
17 50 U.S.C. §3093(d)(1)-(2).
18 50 U.S.C. §3093(c)(2). The statute also allows, at the discretion of the President, notification of “other... members of
the congressional leadership” than those specified. Although not addressed in statute, Gang of Eight notifications are
also made for instances of particularly sensitive intelligence activities other than covert action.
19 50 U.S.C. §3093(c)(3).
20 50 U.S.C. §3093(c)(5).
21 For purposes of Title 10, the four congressional defense committees include the Armed Services and Appropriations
committees of the Senate and House (10 U.S.C. §101(a)(16)). Section 1(a) of H.Res. 658, 95th Cong., 1st sess. (1977)
provides for one member from each of the House defense committees to also be a member of the House Permanent
Select Committee on Intelligence (HPSCI). Section 2(a)(1) of S.Res. 400, 94th Cong. 2nd sess. (1976) provides for one
member from each party from each of the Senate defense committees to be a member of the SSCI.
22 Although the CIA is commonly associated with covert action, 50 U.S.C. §3093 allows for other departments of the
executive branch, such as DOD, to conduct covert action. In the event DOD conducts an operation as a covert action, it
would be done under a military chain of command. For example, military activities known as other-than-routine
support to traditional military activities, fall under 50 U.S.C. §3093 governing covert action. See CRS Report R45175,
Covert Action and Clandestine Activities of the Intelligence Community: Selected Definitions, by Michael E. DeVine.
23 For a more detailed description of Title 10 and Title 50 authorities, see CRS Report R45175, Covert Action and
Clandestine Activities of the Intelligence Community: Selected Definitions, by Michael E. DeVine. See also, Andru E.
Wall, “Demystifying the Title 10-Title 50 Debate: Distinguishing Military Operations, Intelligence Activities & Covert
Action,” Harvard National Security Journal, Harvard University Law School (Cambridge: December 2, 2011). Wall
argues that Titles 10 and 50 “create mutually supporting, not mutually exclusive, authorities.” See also Joseph B.
Berger III, “Covert Action: Title 10, Title 50, and the Chain of Command,” JFQ, Issue 67, 4th Quarter 2012. Berger and
others address the potential hazards that may present themselves when conducting activities under Title 50 authority
that risk exposing members of the Armed Forces to an adversary’s denial of their prisoner-of-war status under the
Geneva Convention Relative to the Treatment of Prisoners of War.
24 See U.S. Congress, House of Representatives, Intelligence Authorization Act, Fiscal Year 1991, conference report to
accompany H.R. 1455, 102nd Cong., 1st sess., July 25, 1991, H.Rept. 102-166, pp. 29-30.
oversight.25 In statute traditional military activities and routine support to these activities are
specifically exempt from the congressional notification requirements for covert action.26 Statutory
requirements for notifying Congress depend upon the specific category of traditional military
activity and the overall military operation or campaign that it supports.
Notification
Because the military conducts OPE as a category of traditional military activities, these
operations are not subject to congressional notification as a covert action or significant
anticipated intelligence activity. The Assistant Secretary of Defense for Low Intensity Conflict is
required to brief the congressional defense committees quarterly on any clandestine activities, the
sum total of which do not exceed $15 million dollars, which the Secretary “determines to be
proper for preparation of the environment for operations of a confidential nature.”29
25 See Joel Myer, “Supervising the Pentagon: Covert Action and Traditional Military Activities in the War on Terror,”
Administrative Law Review, Vol. 59, No. 2, Spring 2007.
26 See 50 U.S.C. §3093(e): “... the term ‘covert action’... does not include ... traditional diplomatic or military activities
https://www.supremecourt.gov/opinions/URLs_Cited/OT2021/21A477/21A477-1.pdf.
28 See U.S. Congress, House of Representatives, “Intelligence Authorization Act for Fiscal Year 2010,” conference
report, together with minority and additional views to accompany H.R. 2701, 111th Cong., 1st sess., June 26, 2009, pp.
48-49: “Clandestine military intelligence-gathering operations, even those legitimately recognized as OPE, carry the
same diplomatic and national security risks as traditional intelligence-gathering activities. While the purpose of many
such operations is to gather intelligence, DOD has shown a propensity to apply the OPE label where the slightest nexus
of a theoretical, distant military operation might one day exist. Consequently, these activities often escape the scrutiny
of the intelligence committees, and the congressional defense committees cannot be expected to exercise oversight
outside of their jurisdiction.”
29 10 U.S.C. §127f(a); 10 U.S.C. §127f(e).
30 Joint Explanatory Statement of the Committee of Conference, H.R. 1455, July 25, 1991.
routine support activities may be conducted clandestinely (i.e., the activity is secret) or covertly
(i.e., the U.S. role in the specific activity is unacknowledged).
Notification
The association of these activities to a supported military operation in which the U.S. role is
acknowledged statutorily exempts these activities from congressional notification as a covert
action.31 DOD generally provides notification to Congress as part of the hearings and briefings
associated with the specific military activity or operation that is being provided routine support.
Notification
Because they may be conducted well in advance of an anticipated military operation and because
they can be intended to influence political, economic or military conditions in another
country32—such as swaying public opinion—other-than-routine support to traditional military
activities is subject to congressional notification for covert action under 50 U.S.C. §3093.33
31 50 U.S.C. §3093(e)(2).
32 That is, the activities may precede National Command Authority approval for hostilities or operational planning for
hostilities. See U.S. Congress, House of Representatives, Intelligence Authorization Act, Fiscal Year 1991, conference
report to accompany H.R. 1455, 102nd Cong., 1st sess., July 25, 1991, H.Rept. 102-166, pp. 29-30.
33 See S. Rep. No. 101-358, p. 55:
[T]he Committee would regard as ‘other-than routine’ support (requiring a finding and reporting to
the committee) such activities as clandestinely recruiting and/or training of foreign nationals with
access to the target country actively to participate in and support a U.S. military contingency
operation; clandestine efforts to influence foreign nationals of the target country concerned to take
certain actions in the event a U.S. military contingency operation is executed; clandestine efforts to
influence and effect public opinion in the country concerned where U.S. sponsorship of such efforts
is concealed; and clandestine efforts to influence foreign officials in third countries to take certain
actions in the event a U.S. military contingency operation is executed. (Traditional diplomatic
activities would be excluded by other parts of this section.)
In other words, the Committee believes that when support to a possible military contingency
operation involves other than unilateral efforts by U.S. agencies in support of such operation, to
include covert U.S. attempts to recruit, influence, or train foreign nationals, either within or outside
the target country, to provide witting support to such operation, should it occur, such support is not
“routine.” In such circumstances, the risks to the United States and the U.S. element involved have,
by definition, grown to a point where a substantial policy issue is posed, and because such actions
begin to constitute efforts in and of themselves to covertly influence events overseas (as well as
provide support to military operations). [emphasis added]
See also, Joel T. Meyer, “Supervising the Pentagon: Covert Action and Traditional Military Activities in the
War on Terror,” Administrative Law Review (Washington, DC: The American University, 59 Admin, L. Rev.
463 (2007)).
Cyber Weapons
Section 396 of Title 10 of the U. S. Code describes the use of cyber capabilities “intended for use
as a weapon” that specifically do not constitute covert action.34
Notification
For these operations, the Secretary of Defense must notify the congressional defense committees
in writing:
• Within 48 hours of the use of a cyber weapon that has been approved for use
under international law;
• On a quarterly basis for any cyber capability developed for use as a weapon;35
and
• Immediately—“to the maximum extent practicable”—following the unauthorized
disclosure of a cyber weapon capability.
34 Section 396(c)(2) specifies that covert action is an exception to these notification requirements.
35 This measure expands Congress’s oversight role and ensures that the intended use of cyber weapons is consistent
with emerging legal norms. See Benjamin Dynkin and Barry Dynkin, “Cybersecurity Showdown: Why the Military is
Preparing for a New Kind of War,” The National Interest, January 9, 2018.
36 Section 1632(3)(b)-(c) of P.L. 115-232:
The congressional intent of this language was partly to provide DOD greater latitude to conduct
operations in cyberspace under the military’s Title 10 authorities without the greater oversight
requirements of covert action.38
Notification
Title 10 U.S.C. §484(a) requires the Under Secretary of Defense for Policy, the Commander of
United States Cyber Command, and the Chairman of the Joint Chiefs of Staff, or their designees
to provide the congressional defense committees quarterly briefings “on all offensive and
significant defensive military operations in cyberspace, including clandestine cyber activities,
carried out by the Department of Defense during the immediately preceding quarter.”39 The
briefings are to include the command involved, descriptions of the operations, an overview of the
legal authorities under which the operations took place, critical operational challenges posed by
major adversaries or otherwise encountered, and an overview of the readiness of the Cyber
Mission Forces to perform assigned missions.40
Notification
The Secretary of Defense is to submit notice in writing to the congressional defense committees,
• Within 48 hours of the operation, or within 48 hours of providing verbal notice to
Congress;
• Immediately—“to the maximum extent practicable”—following an unauthorized
disclosure of an operation, or within 48 hours of providing verbal notice to
Congress;
38 The law’s conference report explained the reasoning for classifying these types of cyber operations as traditional
military activities by noting the difficulties DOD previously encountered in obtaining approval for cyberspace
operations. See U.S. Congress, House of Representatives Committee on Armed Services, John S. McCain National
Defense Authorization Act for Fiscal Year 2019, P.L. 115-232, conference report to accompany H.R. 5515, 115th
Cong., 2nd sess., July 25, 2018, H.Rept. 115-874:
One of the challenges routinely confronted by the Department is the perceived ambiguity as to
whether clandestine military activities and operations, even those short of cyber attacks, qualify as
traditional military activities as distinct from covert actions requiring a Presidential Finding. As a
result, with respect to actions that produce effects on information systems outside of areas of active
hostilities, the Department of Defense has been limited to proposing actions that could be
conducted overtly on attributable infrastructure without deniability—an operational space that is far
too narrow to defend national interests. The conferees see no logical, legal, or practical reason for
allowing extensive clandestine traditional military activities in all other operational domains (air,
sea, ground, and space) but not in cyberspace. It is unfortunate that the executive branch has
squandered years in interagency deliberations that failed to recognize this basic fact and that this
legislative action has proven necessary.
39 10 U.S.C. §484(a).
40 10 U.S.C. §484(b)(1)-(5).
Notification
Depending upon the specific operation, Sensitive Military Cyber Operations could be either
conducted as a type of traditional military activity or—if accompanied by a presidential finding
and conducted under Title 50 authority—as a covert action.45 For those conducted as a traditional
military activity, the Secretary of Defense is to notify the congressional defense committees:
• In writing within 48 hours of the operation taking place;46 or
• Immediately—“to the maximum extent practicable”—subsequent to an
unauthorized disclosure of a sensitive military cyber operation. In the event the
initial notification is verbal, a written notification “signed by the Secretary, or the
Secretary’s designee,” shall be provided not later than 48 hours afterwards.47
41 10 U.S.C. §130f(a)-(c).
42 10 U.S.C. §395(c)(1)(A)-(B).
43 Offensive cyberspace operations are defined in Joint Pub 3-12, Cyberspace Operations, p. GL-5. See also note to
§111 of Title 10 U.S.C., P.L. 112-81, div. A, title IV, §954, 125 Stat. 1551: “Congress affirms that the Department of
Defense has the capability, and upon direction by the President may conduct offensive operations in cyberspace to
defend our Nation, Allies and interests subject to (1) the policy principles and legal regimes that the Department
follows for kinetic capabilities, including the law of armed conflict; and (2) the War Powers Resolution (50 U.S.C.
§1541 et seq.).”
44 Currently, statute does not define or describe offensive or defensive cyberspace operations. JP 3-12 p. GL-4 defines
defensive cyberspace operations as “missions to preserve the ability to utilize blue cyberspace capabilities and protect
data, networks, cyberspace-enabled devices, and other designated systems by defeating on-going or imminent
malicious cyberspace activity.”
45 10 U.S.C. §395(d)(2). “The notification requirement [for the Secretary of Defense to notify the congressional defense
committees in writing within 48 hours of a sensitive military cyber operation] does not apply ... to a covert action.”
[some internal numbering omitted]
46 10 U.S.C. §395(a).
47 10 U.S.C. §395(b)(3).
Notification
The Secretary of Defense is to provide to the defense and intelligence committees of the House
and Senate quarterly briefings on the deployments and collection activities of personnel of the
Defense Clandestine Service.49
Counterterrorism Operations
DOD is required to keep Congress informed of U.S. counterterrorism operations and related
activities. Along with the initial notification, DOD must update information on any
counterterrorism activities within each geographic combatant command; how these activities
support the respective theater campaign plan; overviews of the authorities and legal issues, as
well as any related interagency activities; and any other matters the Secretary of Defense
considers appropriate.50
Notification
In statute, DOD is required to provide monthly briefings to the congressional defense committees
on U.S. counterterrorism and related activities that are not conducted as a covert action.51
51 Ibid.
Author Information
Michael E. DeVine
Analyst in Intelligence and National Security
Acknowledgments
This report was originally coauthored by Heidi M. Peters, former CRS Analyst in U.S. Defense Acquisition
Policy.
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