The Legality of Joint CIA/JSOC Renditions and Targeted Killings

The NYT article about SEAL Team 6 a few weeks ago sparked yet another media frenzy on the military’s accountability and their involvement in shadow wars around the globe. For obvious reasons, writing about sexy spy missions or covert military operations behind enemy lines always attracts a lot of attention. However, just as Frumentarius suggested in his recent article, don’t believe everything you read, and especially not if almost all of these sexy stories happen to come from the same group of authors.

Having said that, Jack’s recent article on the Omega Program, and especially the points made in the comments section, led me to write this piece on the legitimacy of such joint programs, bringing forward a discrepancy between the limitations imposed on the civilian intelligence community (CIA) and the lack thereof in its military counterpart (JSOC).

To fully comprehend the restrictions imposed on the U.S. government for conducting such deniable actions, a clear understanding of covert operations is required. Unlike clandestine operations, which are sponsored or conducted by government departments in such a way as to assure secrecy or concealment, covert action is defined as an activity or activities to influence political, economic, or military conditions abroad, where it is intended that the role of the sponsoring government will not be apparent or acknowledged publicly.

Clearly, the integral part of covert actions is the plausible deniability factor. Understandably, due to the secrecy surrounding such activities, covert operations often “involve things like front organizations, disinformation, deception, counterfeit documents, cover-ups, high-tech gadgets, and conspiracies galore” (O’Connor, Covert Action). It makes sense therefore that there are far more stringent legal restrictions for covert actions compared to clandestine actions.

Traditional military activities

According to the 1991 Intelligence Authorization Act (IAA), which was implemented as a result of scandals and abuses of covert activities during the Reagan administration, there are two central requirements for covert actions to be authorized. First, the president must state in a written finding that the action is necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States, and second, the congressional intelligence committee must be fully and currently informed of all covert actions.

As long as those two parameters were fulfilled, both the CIA and military special operations units were eligible to conduct covert activities. However, the IAA also states that “traditional …military activities or routine support to such activities” (U.S. Congress, IAA 1991, §413b(a)-(b)) are not categorized as covert actions and would therefore waive a presidential finding and congressional approval. While the IAA itself does not define ‘traditional military activities,’ according to the conference committee report, the phrase is meant to include actions “preceding and related to hostilities which are either anticipated…to involve U.S. military forces, or where such hostilities involving the United States military forces are on-going” (Kibbe, The Rise of Shadow Warriors).

This means that, during wartime, covert operations by military personnel are legally permitted without a presidential finding or congressional notification. However, among U.S. decision makers, the problem lies in the interpretation of the word ‘anticipated,’ which led Pentagon officials to believe that they have been empowered to conduct covert activities ‘years in advance’ of any overt U.S. military involvement.

Critics charged that after 9/11, “the Bush administration was shifting ever more covert activity from the CIA to the military in a deliberate strategy to exploit the ‘traditional military activities’ loophole and evade congressional oversight” (Kibbe, Conducting Shadow Wars, p381). This was demonstrated by Rumsfeld’s determination “to make sure that special operations forces could obtain the authority for both deployment and the use of lethal force in minutes and hours, not days and weeks” (Smith, Killer Elite, p235). In addition, the DoD assumed the position that the United States was in active war against terrorism, and therefore concluded that any military activity “meets the ‘traditional military activities’ exception to the covert action definition – meaning that any actions taken in pursuit of it need not be justified by a presidential finding and Congress need not be informed about them” (Kibbe, The Rise of Shadow Warriors).

However, critics of Rumsfeld’s intentions insisted that because military personnel engaged in international armed conflict must adhere to the international laws of war in the Geneva Convention, only the CIA has the legislative support to conduct covert actions due to their relative freedom from such international constraints. Some even suggested “the use of formal military force to conduct a covert military operation amounts to an act of war in terms of international law” (McAndrew, Wrangling in the Shadows, p158). They claimed that “unaffiliated, intentional concealment of military personnel among the civilian population blurs the line between civilians and combatants” (p158) which would classify as an unlawful activity.

Post 9/11

It became evident that pre-9/11, a gap existed between “DoD’s capability for [covert] operations and its authority under the United States Code” (Shultz, Showstoppers). This drastically changed after 9/11 because the CIA had “a far more limited ability to mount snatch operations in a hostile environment” (Smith, Killer Elite, p213), they conducted joint operations with military special operations teams to deploy to northern Afghanistan, establish a network of friendly Afghan sources, and help “Afghans rid their own country of a foreign menace” (Tenet, At the Center of the Storm, p315).

In addition to signing a “Memorandum of Notification, effectively removing any barrier to the assassination of Bin Laden” (Smith, Killer Elite, p216), the administration approved the Authorization for Use of Military Force (AUMF) Senate Joint Resolution 23. The resolution authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons” (U.S. Congress, AUMF, §2(a)).

Rumsfeld thereafter “increased the authority of SOCOM from a purely ‘supporting command,’ which can only contribute to other combatant commands’ missions, into a ‘supported command,’ which plan and execute its own independent operations” (McAndrew, Wrangling in the Shadows, p157). This in turn reduced the amount of consideration, oversight and accountability given to operations conducted by special operations forces. In addition, while looking for “a unit that could actually carry out the manhunts [Rumsfeld] was demanding, a secret Pentagon report singled out the Intelligence Support Activity (ISA) as having the potential, if nurtured, to fight the kind of war the Secretary envisages fighting” (Smith, Killer Elite, p234).

Shortly thereafter, the Activity was moved out of army intelligence and was placed under direct control of JSOC. However, given that the joint resolution’s authorization to use force is too vague, administration critics have argued that it does not meet the criteria of either a declaration of war or of ‘traditional military activities.’ The problem herein lies with the fact that the legislation that governs covert actions have been written with the Cold War in mind and were therefore not intended for the current threat environment of global terrorism. Even so, most, “on Capitol Hill, and in the general public, would no doubt argue that in the fight against terrorism, the U.S. government should be able to use every tool it has without worrying about presidential findings or congressional notification” (Kibbe, The Rise of Shadow Warriors).

Oversight, OPBs and SAPs

However, according to experts, “whether covert operations are receiving the appropriate oversight becomes an even more complex issue when one considers the question of which congressional committee(s) should be doing the oversight” (Kibbe, Conducting Shadow Wars, p382). Although the House and Senate Intelligence Committees are legally responsible to establish what covert operations entail, because of the Pentagons interpretation of ‘traditional military activities,’ it tends to send its funding requests directly to the Armed Services Committee.

And even if the House and Senate Intelligence Committees would somehow get involved in the process of sponsoring covert activities, because the intelligence budget is a part of the defense budget, it gives the Armed Service Committee financial power over them. In addition, by labeling various covert activities as ‘Operational Preparation of the Battlespace’ (OPB), the DoD reduces them to ‘traditional military activities’ and therefore avoids these activities from being administered and supervised by the intelligence committees.

While some politicians on Capitol Hill expressed concern that the, “DoD has shown a propensity to apply the [OPB] label where the slightest nexus of a theoretical, distant military operation might one day exist” (House of Representatives, Intelligence Authorization Act for Fiscal Year 2010, p49), the administration has various other tools at their disposal to keep such actions away from public scrutiny and congressional oversight. They can, for example, authorize certain covert activities under Special Access Programs (SAPs). These are security protocols used to classify certain operations beyond top secret.

The laws in effect of governing congressional oversight of SAPs state that the Secretary of Defense must submit an annual report on SAPs listing a brief description including each program’s major milestones, the annual cost of each program, and the estimated cost of each program for the future. In addition to acknowledged SAPs, there are unacknowledged SAPs, for which any requirement to include certain information in a report can be waived by the Secretary of Defense if the inclusion of such information suggests that the report would adversely affect the national security.

This restricts access to such information to literally a hand full of people in the administration. Ultimately, “Rumsfeld found a way to head off any arguments within the military, persuading Bush to sign National Security Presidential Directive 38, which authorized US special operations troops to ‘find and finish’ terrorist targets. Under US law, if not international law, that presidential finding made any extra judicial killings carried out by the JSOC special mission units legal” (Smith, Killer Elite, p268).

Loophole or Illegal?

It becomes clear that there are certain discrepancies between what old legislation about covert operations and shadow wars permit, and how these regulations have been interpreted today with an entirely different threat environment. Prior to the September 11 attacks, the CIA was the leading agency in matters of covert political action and deniable paramilitary operation.

However, while assessments produced by the CIA were customarily intended for the long term, the introduction of terrorist atrocities against the western world prompted the Agency to reorganize itself and try to adapt to the new threat environment. Strategic intelligence on a national level was largely substituted for tactical, real-time intelligence. Nonetheless, senior officials in U.S. administration believed that, “the CIA was unable, or unwilling, to provide the military with the information it needed to effectively challenge stateless terrorism” (Hersch, The Coming Wars), and instead established, “JSOC as the lead agency in the counterterrorism battle” (Kibbe, Conducting Shadow Wars, p379).

To delineate and legalize such covert DoD activities, the Bush and Obama administrations have approved and implemented various resolutions and programs, and restructured the military’s Special Operations Command, allowing JSOC to operate faster, with less oversight, and on a global scale. Today, the executive branch and its top Tier military forces are, “enhancing [their] global network of special operations forces to support … interagency [activities] and international partners in order to gain expanded situational awareness of emerging threats and opportunities” (Turse, The rise of the military’s secret military).

This article has at least somewhat established that, within U.S. law, JSOCs limited accountability issues often times allows its units to operate faster and more efficient than their civilian counterpart. With the realization that, “intelligence has never been more important in world politics than…at the opening of the twenty-first century” (Scott & Jackson, Understanding Intelligence in the Twenty-First Century, p.xi), intelligence officials have tried to combine the two competing government branches in an effort that would maximize the advantages and minimize the risks and constraints of each group. However, because the legal restrictions for conducting deniable intelligence activities by the CIA have not changed, meaning that there still has to be a presidential finding and congressional notification, “using the military for such operations is – at least under one interpretation of the law – much easier than using the CIA” (Kibbe, The Rise of Shadow Warriors).

Sources:

• George Tenet, At the Center of the Storm: My Years at the CIA, New York, HarperCollins, 2007.
• House of Representatives, 111^th Congress, Report 111-186 accompanying H.R. 2701, Intelligence Authorization Act for Fiscal Year 2010, Washington, Government Printing Office, 2009
• Jennifer D. Kibbe, Conducting Shadow Wars, Journal of National Security Law & Policy, 5:2, 2012.
• Jennifer D. Kibbe, Covert Action and the Pentagon, Intelligence and National Security, 22:1, 2007.
• Jennifer D. Kibbe, The Rise of Shadow Warriors, Foreign Affairs, 2004.
• John G. Heidenrich, The Intelligence Community’s Neglect of Strategic Intelligence, The State of Strategic Intelligence, CSI Publication, 51:2, 2007.
• L.V. Scott & P.D. Jackson, Understanding Intelligence in the Twenty-First Century, London, Routledge, 2004.
• Michael McAndrew, Wrangling in the Shadows: The Use of United States Special Forces in Covert Military Operations in the War on Terror, Boston College International and Comparative Law Review, 29:1, 2006.
• Michael Smith, Killer Elite: Inside America’s most secret special forces, London, Orion Books Ltd, 2011.
• Nick Turse, The rise of the military’s secret military, Salon.com, 2014.
• Richard Shultz, Showstoppers, The Weekly Standard, 9:19, 2004.
• Seymour Hersch, The Coming Wars, The New Yorker, January 2005 Issue.
• Special Access Programs: Congressional Oversight [as amended by the U. Government Printing Office, Title 10 U.S.C. §119a(1)-(2), 2011].
• Special Access Programs: Congressional Oversight, 119e(1).
• Spencer Ackerman, How the Pentagon’s Top Killers Became (Unaccountable) Spies, Danger Room, 2012.
• Thomas H. Kean (Chair), The 9/11 Commission Report, National Commission on Terrorist Attacks Upon the United States, Washington, 2004.
• Thomas O’Connor, Covert Action and Targeted Killing, [Blog] drtomoconnor, available at: http://www.drtomoconnor.com/3030/3030lect05a.htm.
• U.S. Congress, Authorisation for Use of Military Force, Public Law 107-40, 115 Stat. 224, §2(a).
• U.S. Congress, Intelligence Authorisation Act of 1991, §413b(a)-(b).