Background

Prior to 1974, no statute existed that enabled Congress to conduct oversight of the intelligence community. In the 1970s, controversy over public disclosure of CIA's covert action programs in Southeast Asia and the agency's domestic surveillance of the antiwar movement spurred Congress to become more involved in intelligence oversight. In 1974, the Hughes-Ryan amendment of the Foreign Assistance Act of 1961 (§32 of P.L. 93-559 ) provided the first statutory basis for congressional oversight and notification to Congress of covert action operations. These committees became the model for a permanent oversight framework that could hold the intelligence community accountable for spending appropriated funds legally and supporting identifiable national security objectives. In 1975, Congress established the Senate Select Committee on Intelligence (SSCI) and the House Permanent Select Committee on Intelligence (HPSCI). In the field, the military and intelligence communities increasingly integrated their activities for greater effect in the post-9/11 environment. Yet, in Congress, the intelligence and defense committees have different notification standards and processes. Historic examples of covert action include the CIA's orchestration of the 1953 coup in Iran; the 1961 Bay of Pigs invasion of Cuba; the Vietnam-era secret war in Laos; and support to both the Polish Solidarity labor union in the 1970s and 1980s and to the Mujahidin in Afghanistan during the 1980s. DOD doctrine defines clandestine activities as "operations sponsored or conducted by governmental departments in such a way as to assure secrecy or concealment" that may include relatively "passive" intelligence collection information gathering operations. Unlike covert action, clandestine activities do not require a presidential finding but may require notification of Congress. This definition differentiates clandestine from covert , using clandestine to signify the tactical concealment of the activity. 102-88 , the conference committee provided an extended discussion of its intent as to the meaning of traditional military activities :
It is the intent of the conferees that 'traditional military activities' include activities by military personnel under the direction and control of a United States military commander (whether or not the U.S. sponsorship of such activities is apparent or later to be acknowledged) preceding and related to hostilities which are either anticipated (meaning approval has been given by the National Command Authorities for the activities and or operational planning for hostilities) to involve U.S. military forces, or where such hostilities involving United States military forces are ongoing, and, where the fact of the U.S. role in the overall operation is apparent or to be acknowledged publicly. This statutory definition allows Congress to provide oversight of the sort of military operations that have significant bearing on U.S. foreign and defense policy but are not clearly defined elsewhere in statutory oversight provisions.
While not defined by statute, DOD doctrine describes clandestine activities as "operations sponsored or conducted by governmental departments in such a way as to assure secrecy or concealment" that may include relatively passive intelligence collection information gathering operations. Unlike covert action, clandestine activities do not require a presidential finding but may require notification of Congress. This definition differentiates clandestine from covert, using clandestine to signify the tactical concealment of the activity. By comparison, covert operations are "planned and executed as to conceal the identity of or permit plausible denial by the sponsor."
Since the 1970s, Congress has established and continued to refine oversight procedures in reaction to instances where it had not been given prior notice of intelligence activities—particularly covert action—that had significant bearing on United States national security. Congress, for example, had no foreknowledge of the CIA's orchestration of the 1953 coup that overthrew Iran's only democratically elected government, or of the U-2 surveillance flights over the Soviet Union that ended with the Soviet shoot-down of Francis Gary Powers in 1960. Eventually, media disclosures of the CIA's domestic surveillance of the anti-Vietnam War movement and awareness of the agency's covert war in Laos resulted in Congress taking action. In 1974, Congress began its investigation into the scope of past intelligence community activities that provided the basis for statutory provisions for intelligence oversight going forward.
The 1974 Hughes-Ryan Amendment to the Foreign Assistance Act of 1961 (§32 of P.L. 93-559) provided the earliest provisions for congressional oversight of covert action. In the late 1970s, Congress established a permanent oversight framework, standing up the House Permanent Select Committee on Intelligence (HPSCI) and the Senate Select Committee on Intelligence (SSCI). These committees were given exclusive oversight jurisdiction of the intelligence community.
Recent events in North Korea, Yemen, and elsewhere have underscored the important function Congress can have in influencing the scope and direction of intelligence policy that supports United States national security. However, despite Congress's work during the past decades to establish statutory provisions for conducting intelligence oversight, those efforts have not always achieved Congress's desired result.
For example, there has been occasional confusion over whether the congressional intelligence or defense committees have jurisdiction for oversight purposes. This confusion is due in part to overlapping or mutually supporting missions of the military and intelligence agencies, particularly in the post-9/11 counterterrorism environment. Intelligence and military activities fall under different statutory authorities, but they may have similar characteristics that warrant congressional notification (e.g., a need to conceal United States sponsorship and serious risk of exposure, compromise, and loss of life).