sold Thomas Jefferson: The Federal Government Funds the First American Clandestine Activities

On November 29, 1775, the Continental Congress established a Committee of Secret Correspondence to handle clandestine activities during the Revolution. Two weeks later, it dispatched Thomas Story as a secret messenger to Europe with instructions to make contact with a network of unofficial agents working for the colonists’ interests. These were arguably the first American foreign covert operations. Benjamin Franklin explained that he felt the information gained in that way should be shielded from the public. “It is our indispensable duty to keep it secret, even from Congress…We find by fatal experience that Congress consists of too many members to keep secrets.” General Washington maintained a network of spies operating against the British within America, working to keep their activities undisclosed.

The same secrecy attended the Constitutional Convention in 1787. Fearing that public notice would create irre-sistible pressures on the delegates and limit their freedom of action, on the fourth day of deliberation, the Convention adopted a series of rules forbidding the removal of any account of the debates or public availability of any journal containing the accepted resolutions. James Madison would later note his feeling that “no Constitution would ever have been adopted by the convention if the debates had been public.” Madison’s own notes on the Convention were published in 1840, more than half a century after the Constitution was ratified.

In their deliberations, the delegates struggled to come to agreement on language in the Constitution requiring public disclosure of expenditures, particularly those related to negotiations with foreign governments and intelligence operations. George Mason advocated requiring ‘that an Account of the public expenditures should be annually published” and Elbridge Gerry seconded the motion. Mason believed that while some matters might require secrecy, the public trust could be abused without proper oversight. Madison by contrast felt that in matters relative to military operations and foreign negotiations, total secrecy was sometimes necessary. Mason lost this debate and Article I, Section V, Clause III of the Constitution reads: “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.”

It fell to the First Congress (1789-1791) to determine the degree to which it would permit secrecy in the gathering of foreign intelligence, if and how it would fund such a program, and the scope it would give to the executive branch to establish an intelligence network and keep its activities secret. Nowhere was this more evident than in the realm of intelligence in dealing with and spying on foreign governments. More than a year prior to the ratification of the Bill of Rights, Congress took up a measure that recognized that some of the information held by the executive ought not to be divulged to the public, and beyond generalities, even to Congress. It also dealt with the issue of how, as appropriators of expenditures under the Constitution, Congress had not only to accept concealment of the intelligence acts but also had to find a way to conceal the funding.

On July 1, 1790, Congress passed “An Act providing the means of intercourse between the United States, and foreign Nations,” which was both its first act dealing with the U.S. foreign service and its first act defining the executive privilege in concealing secret expenditures. It funded the establishment of such a service and provided that “The President shall account specifically for all such expenditures of the said money as in his judgment may be made public, and also for the amount of such expenditures as he may think it advisable not to specify.” The Legislators also appropriated a ‘contingent fund’ of $40,000, really a “secret fund,” for the President to use for “special diplomatic agents” and other sensitive foreign affairs matters. Thus the President was not required to account to Congress with line-item details for sensitive expenditures, but was required to inform Congress of the amount of the sums expended.

During the first Washington administration, copies of acts of Congress that had been signed by the President were sent to the various states as official notices.

Letter Signed as Secretary of State, New York, July 6th, 1790, to the Governor of Georgia, transmitting this foreign service funding act as well as two other acts. “Sir, I have the honor to send you herein inclosed two copies duly authenticated of the Act providing the means of intercourse between the United States and foreign nations; also of the Act for the relief of Nathaniel Twining; also of the Act to satisfy the claims of John McCord against the United States, and of being with sentiments of the most perfect respect…”

In an 1804 letter to Secretary of the Treasury Albert Gallatin, President Thomas Jefferson summarized the practice that he had helped to implement as Secretary of State: “The Constitution has made the Executive the organ for managing our intercourse with foreign nations…[I]t has been the uniform opinion and practice that the whole foreign fund was placed by the Legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the President.” Jefferson would use this contingent fund himself while president, aiding a paramilitary army of Greek and Arab mercenaries to invade Tripoli and pressure its Bey to surrender American hostages. Today, though the intelligence apparatus has been wrapped into the newly founded Department of Homeland Security, Congress still allows executive discretion in the funding of clandestine operations at overseas installations.