Like clockwork, I isolate myself in my UVA apartment the Batcave to write on the CIA and the use of force, and within an hour or two, sources confirm that the CIA is on the ground in Libya. Sometimes I amaze myself!
(Don’t take this post too seriously, btw. Actually, don’t take it seriously at all. I was letting off steam late at night after finishing a long article draft; this post was intended as a pretty light-hearted rumination. But I should emphasize that if one were talking seriously, we’d have to start by noting that CIA-in-Libya does not necessarily mean the CIA using force, violence, etc. – covert, as defined in US law, covers lots of other activities that are benign but in which the USG does not wish to reveal itself. There are many things the CIA can do on the ground, even in support of the rebels, that don’t involve using force.)
Few would doubt that the CIA was already on the ground, but these are administration sources offering confirmation that it has been there for several weeks. In addition, Instapundit points us to a Reuter’s report stating that President Obama has signed a “presidential finding” authorizing covert (which does not necessarily mean covert use of force) activities in support of the rebels:
Obama has signed a secret order authorizing covert U.S. government support for rebel forces seeking to oust Libyan leader Muammar Gaddafi, government officials told Reuters on Wednesday. Obama signed the order, known as a presidential “finding”, within the last two or three weeks, according to four U.S. government sources familiar with the matter. Such findings are a principal form of presidential directive used to authorize secret operations by the Central Intelligence Agency. The CIA and the White House declined immediate comment.
A couple of quick thoughts and then back to my article, which I’ll post up to SSRN and link here soon.
First, channeling my best Kausfiles style, it seems to me this is a golden opportunity and win-win for the Agency. If it is able to make a contribution to Gaddafi’s fall, and then discreetly let everyone useful know it, it will have pulled Samantha’s Humanitarian War out of the fire without the indiscretion of US troops on the ground. As I said in an earlier post (cribbing a conversation with a military officer friend who (like every military officer I’ve spoken with) was very dubious even about a US-staffed no-fly zone), what do you have a CIA for, if not for this? Agreed.
If I were the CIA leadership, I would be quietly promising to do our darndest for the team (no promises of course), find ways to make it work, and buff up the humanitarian cred. It suggests a long term CIA survival strategy – waterboard some of America’s enemies every few years, and then make up for it by fighting a war for Samantha Power (will these become known as Samantha’s Wars?). Or engage in some of those activities – harsh interrogations of murdering mercs? telecom and internet surveillance of all those fancy-pants academics on Gaddafi’s payroll? – in this conflict in order to create precedents in humanitarian interventions that, as a matter of lawful methods of using force, apply equally well in other conflicts. Moral and legal equilibrium achieved – if the CIA were even half-useful, let alone successful, in Libya, it would do a lot to achieve an “institutional settlement” around the Agency in the Bush years that ordinary politics and law have not been able to achieve to date. I find it hard to believe that senior CIA leadership has not thought this through fifty steps ahead.
Second, however, as I note in the section I am now writing on CIA involvement in targeted killing in Pakistan, one reason that the program has become much more effective is because the CIA has gradually managed to put together an intelligence network on the ground in Afghanistan and parts of Pakistan that give it independent information – independent of the ISI. I have no idea what the CIA had or ever had in Libya and neither do you. One can train and arm rebels, even “advise” and fight with/for them, without a massive intelligence network. Knowing what is really what in Tripoli and likewise actually knowing who the rebels are and how they figure their war aims (just in case it’s different from what either Wolfowitz or Power thinks) are not matters that can be taken up instantly. Although it would be no surprise if that’s once again what we are doing. And equally no surprise that if we stay in Libya for a decade, we could do the same thing as Afghanistan and set up an effective intelligence network.
Third, I have been in many conferences and meetings in the past couple of years in which the participants disagree on many issues concerning targeted killing and drone warfare. Military lawyers, advocacy lawyers from the ACLU or human rights organizations, UN officials, international law academics argue and disagree – but one point on which they frequently agree (far more than I would have imagined as an outsider to government) is that The CIA Should Not Be Pulling Triggers. It constitutes a violation of the laws of war, on these (several different) arguments.
I don’t agree, and find myself in the position of defending the CIA’s participation in using force – but the fact is, I don’t know on what basis the CIA itself has concluded this is legal. I assure you that it has many lawyers, working with lawyers from DOJ and other agencies, including DOD, stating why it thinks this is legal. But it never articulates anything about it publicly, and does itself a great disservice thereby. The military lawyers and the human rights types duke it out – and then they both turn and agree that the CIA is Very Very Retrograde. Where is the CIA to defend itself?
NOTE TO CIA DIRECTOR PANETTA: You need to instruct your lawyers to come up with a coherent strategy for talking publicly with people, frequently lawyers, who are important to your institutional mission because they set the terms of your institutional legitimacy in the wider world. You need to show them that you have an at least plausible and soberly thought-out legal analysis of why your use of violence is not contrary to international law. They don’t have to agree with it, but you have to assert that it is real, considered, and at least plausible, which means you have to say something and engage with these people. You think the international law community is irrelevant? The activist and advocacy community, intermingled experts, academics, and advocates, unable to lay gloves on you? Think again. They toasted the Agency like a bagel for breakfast over interrogation and detention – so much so that you are left blowing up people in part for lack of a detention option that can get by the activist world. They might well do it to you again on targeted killing. Get out in front of this; the world has changed and they are more important as a (mostly de-) legitimating community than 180 of the members of the General Assembly. Samantha’s War for Virtue is the perfect opportunity not only to show your stuff on the ground, whatever that might be – but also to explain yourselves on legal policy, in ways in that sound far better when it’s about “saving lives” in Benghazi rather than “counterterrorism in AfPak.” That’s so even when the activity, using violence, is the same activity and under fundamentally the same jus in bello legal justification. Use Sam’s War as an opportunity to give yourselves some legal cover and create some legal precedents that can be used down the road. Give me a call and we’ll talk.
PS. I understand the arguments that it is a clean, clear legal line to say – only regular armed forces can engage in hostilities. I also understand, looking at Libya, why no American president would ever think the ability to task the CIA – deniable if not covert, civilian and not uniformed – should be given up. It is an attractive option precisely because of the ambiguity and because it is not a clean, clear legal line. Presidents, more than lawyers, clearly think this an important presidential option, in part because in the real world, the symbolism of uniformed military present on the ground matters in ways that CIA personnel do not quite so much (pace Our Contractor in Pakistan).