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

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. Congress regulates the CIA’s capacity to conduct covert action as part of its oversight of national security agencies. I categorize laws passed by Congress to regulate covert action along two dimensions: authority (prohibitive or enabling) and doctrine (substantive or procedural). Using logistic regression, I find that Congress is more likely to choose substantive laws when faced with recent intelligence scandals. Congress is less likely to create a prohibitive law as support by the president’s party and the opposition party increases. These results are supported by the legislative history of a sample of these laws. I argue that these laws lead to a shift in covert action components that can best be explained through the interaction of principal-agent dynamics and the variation that exists in the perception that Congress’s laws are binding on the behavior of the executive and the national security agencies. To test this theory, I engage in process tracing of primary source documents of decision-making related to U.S. involvement in the Angolan civil war (1974-1989) and the Yugoslavian civil war (1992-1995). The results suggest that covert actions are modified in response to legal regulations, but sometimes in unanticipated ways that attempt to evade these laws. Substantive, prohibitive laws can result in an escalation of the violence of covert action, contrary to the intent of Congress. But procedural, prohibitive laws can caution decision-makers and slow escalation. 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 U.S.