Jennifer S. Byram
The Central Intelligence Agency (CIA) was created by the National Security Act of 1947. The Central Intelligence Agency Act of 1949 (CIA Act) (P.L. 81-110, 63 Stat. 208) was enacted to give the CIA specific authority to carry out the duties assigned to it in 1947. Until the CIA Act, the CIA had been acting without the authorities typically given to other federal government agencies.
PROVISIONS OF THE CIA ACT
The CIA Act authorized the CIA to receive and spend money, administer overseas employees, and protect the confidential nature of CIA activities. The CIA is allowed to purchase supplies and services using procedures established in the Armed Services Procurement Act of 1947, transfer money to and from other government agencies, have employees of other agencies work for the CIA, and spend CIA funds without the same restrictions placed on other agencies. The CIA can send employees to specialized training and pay for that training; pay travel and moving expenses of employees and their families when they are assigned to work abroad, both at the time of assignment and for vacations back to the United States; and provide for medical care for employees working abroad. The Director of Central Intelligence shall protect intelligence sources and methods from unauthorized disclosure. Finally, each year the Director of Central Intelligence, with the Attorney General, may admit up to 100 immigrants and their families to the United States to help protect national security, typically granting legal residence to foreign nationals who have worked for the CIA and need to leave their homeland.
While the proponents of the CIA Act characterized it as only providing the same authorities that other agencies enjoyed, the CIA actually has significantly more freedom from legislative restrictions. For example, the CIA can have employees of other agencies temporarily transferred to the CIA, allowing people who work at the CIA to truthfully say they do not work for the CIA. The CIA is exempt from laws requiring agencies to list their organizations, functions, names, titles, salaries, and number of employees, and the Director of the Bureau of the Office of Management and Budget shall not report information about the CIA. The CIA can improve rental properties, acquire land, and construct buildings without the limits placed on other agencies.
Perhaps the most important freedoms relate to financial secrecy. The CIA may exchange funds with other agencies. This allows the CIA to spend money that has not been budgeted to it, which hides the true total the CIA spends. The CIA also can spend that money, "without regard to the provisions of law and regulations relating to the expenditure of government funds," with limited accounting for "confidential, extraordinary, or emergency" spending.
CHALLENGES TO THE ACT
Though the CIA Act passed with a strong majority, there were impassioned arguments against it. The main concerns were about the secrecy provisions and the possibility that CIA agents would work in the United States, spying on U.S. citizens. Some senators stated that the CIA Act would set up a "military gestapo" in the United States. Supporters of the act argued that information about the spending, employees, and actions of the CIA needed to be kept secret, to protect the lives of CIA agents abroad who were likely to be tortured or killed if they were suspected of being U.S. spies. The skeptical senators were told that the Senate Committee on Armed Services had seen confidential information about American intelligence that could not be shared with the full Senate, but every Senator would support the act if they had seen it. The supporters said that the attack on Pearl Harbor might have been prevented if U.S. intelligence had been given these capabilities prior to World War II. They also implied that not supporting the CIA Act was unpatriotic.
EFFECTS OF CIA SECRECY
Continuing concern about the secret activities of the CIA has led to important amendments to the CIA Act. The amendments were designed to increase congressional oversight of the CIA. Congress created the office of the Inspector General of the CIA in 1988. The Inspector General's duties include investigating allegations of misconduct by CIA employees, performing any other investigations or audits that seem useful, and making semi-annual reports to Congress about CIA activities. Over the years, Congress has increased the Inspector General's authority to investigate and make reports several times. If an employee reports an urgent concern to the Inspector General, and is not satisfied with the response, the employee can complain directly to appropriate congressional committees.
The office of the General Counsel of the CIA was created in 1996. The General Counsel is the head lawyer for the CIA, works to ensure that the CIA operates within the law, and defends it from lawsuits. One of the duties of the General Counsel is to review proposed operations to make sure they comply with U.S. laws and treaties.
Dissatisfaction with the secrecy of the CIA has caused most of the litigation about the CIA Act. Many cases involve the interaction between the secrecy provisions of the CIA Act and the disclosure provisions of the Freedom of Information Act (FOIA). Generally, the courts have decided the CIA is exempt from the requirements of the FOIA.
The Supreme Court has decided one case, United States v. Richardson (1974), which challenged the constitutionality of the CIA Act. The plaintiff argued that the CIA Act's secret funding provisions violated the Statement and Account Clause of the Constitution (Article I, section 9, clause 7), which requires the government to publish an account of public expenditures. The Court held that a taxpayer does not have the right to challenge the secrecy provisions in court because the individual is not specifically harmed by the provisions. Because the Court will not allow any taxpayer to maintain a challenge, the secrecy provisions will not be found unconstitutional.
It is difficult to determine the exact impact the CIA Act has had on the United States because so many of the CIA's activities are not publicized. We do not hear about the CIA's successful operations, or the attacks it has prevented. We seldom hear about its failures, unless they are spectacular, like the failed Bay of Pigs invasion of Cuba, or the Iran-Contra scandal. It is certain that America must have an effective, well-regulated intelligence agency to provide us with information about hostile powers, and the CIA is that agency.
See also: DEPARTMENT OF HOMELAND SECURITY ACT; FOREIGN INTELLIGENCE SURVEILLANCE ACT; NATIONAL SECURITY ACT OF 1947; USA PATRIOT ACT.
Central Intelligence Agency Act of 1949. P.L. 81-110, 63 Stat. 208. Congressional Record, 81st Congress, 1st Session, H.R. 2663 (1949).
Holt, Pat M. Secret Intelligence and Public Policy: A Dilemma of Democracy. Washington, DC: CQ Press, 1995.
Kessler, Ronald. Inside the CIA. New York: Pocket Books, 1992.
Warner, Michael, ed. The CIA Under Harry Truman. Washington, DC: Center for the Study of Intelligence, Central Intelligence Agency, 1994.
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