Clandestine Military Operations

The New York Times, in a story by national security correspondent Mark Mazzetti today (Tuesday, May 25, 2010), reveals the contents of a September 2009 secret directive signed by General Petraeus ordering “broad expansion of clandestine military activity in an effort to disrupt militant groups or counter threats in Iran, Saudi Arabia, Somalia and other countries in the region.”  (The story also says it holds back “sensitive” details, which raises a different set of issues about the NYT making determinations about what is sensitive and what is not, but leave that for a different discussion.) (PS. If co-blogger Stewart Baker had any thoughts about this whole article and the policy issues, I’d certainly be interested to hear them.)

The document does not authorize any offensive use of force activities; the purposes are apparently intelligence-gathering and relationship building, in friendly and hostile countries.   Contingency plans related to thwarting expansion of terrorist networks as safe havens in AfPak and, presumably, Yemen are disrupted to other lightly governed or hostile places such as Somalia or Iran are important; likewise contingency plans around Iran nuclear weapons acquisition.   Of particular interest, beyond the news report itself, is the article’s discussion of the relationship between “clandestine” military activities and “covert” CIA actions (the statutory definition of “covert” for purposes of the intelligence community is found at USC Title 50, 413(b)(e)).  According to the article:

The order … calls for clandestine activities that “cannot or will not be accomplished” by conventional military operations or “interagency activities,” a reference to American spy agencies …  Unlike covert actions undertaken by the C.I.A., such clandestine activity does not require the president’s approval or regular reports to Congress, although Pentagon officials have said that any significant ventures are cleared through the National Security Council. Special Operations troops have already been sent into a number of countries to carry out reconnaissance missions, including operations to gather intelligence about airstrips and bridges.

One of the assumptions many people seem to have is that the military is more accountable than the CIA in such activities.  I’m not suggesting any problem with the activities described in this article by the military – far from it – but as the article says, these clandestine activities do not require the regular covert action accountability mechanisms required of the CIA as a matter of law, although NSC is involved in anything significant.

However, as these activities get closer to, well, “spying” in the traditional sense, then the line between clandestine and covert risks becoming blurred.  Besides the statutory definition of covert, the term also refers to the fact that US military personnel, even though acting clandestinely, will be acknowledged by the US if taken prisoner and it will demand Geneva III treatment for them.  But the article says that many in the military “are also concerned that as American troops assume roles far from traditional combat, they would be at risk of being treated as spies if captured and denied the Geneva Convention protections afforded military detainees.”

CIA civilian operatives do not have that assurance of being avowed, and of course in many circumstances – though not all, because covert refers to many things beyond the use of force, including information and disinformation activities, things that are not necessarily illegal under a country’s local law – their activities will be illegal espionage, and in other more extreme cases murder under local law.  This is the whole issue of NOC.  (BTW, there is a fun and useful FAQs page at the CIA’s website that covers a number of questions both policy and practical, including internship opportunities at the CIA.)  Here is what the CIA itself tells the public about covert action on its web page (emphasis added):

7. Who decides when CIA should participate in covert actions, and why?

Only the president can direct the CIA to undertake a covert action. Such actions usually are recommended by the National Security Council (NSC). Covert actions are considered when the NSC judges that US foreign policy objectives may not be fully realized by normal diplomatic means and when military action is deemed to be too extreme an option. Therefore, the Agency may be directed to conduct a special activity abroad in support of foreign policy where the role of the US government is neither apparent nor publicly acknowledged. Once tasked, the intelligence oversight committees of the Congress must be notified.

These activities are not illegal under US law, of course, provided that the requirements of the different services – the military or the civilian agencies – are followed, including required accountability and oversight.  Nor are they illegal, in my view, under international law; state practice by a wide variety of states has sanctioned espionage, up to and including uses of force illegal under the local law of the sovereign, so widely and for so long that the rule would have to be something like, “liable under local sovereign law but not contrary to international law,” including uses of force if they are correctly described as “self-defense.”

However, as a matter of US policy, the divisions between the various services matter over the long run, and so there are important questions as to the proper division of roles.  Many people in the international law community – believing that all lawful use of force divide into law enforcement and armed conflict – naturally believe that as domestic law and policy, the CIA should not have a role in using force.  As I remarked in a second round of Congressional hearings a few weeks ago on drone warfare (I’ll post this soon to SSRN), states have not generally found that the best solution to real-world problems.  States want, and in my view of international law, have plainly preserved, the ability to use covert force and preserve deniability and indeed in an extreme situation disavow the civilian agent.  It appears to many states an important security capability, including the United States.

On another hand, there are real questions as to whether – as a matter of policy, not law – the CIA is the right agency to conduct what increasingly looks to amount to a parallel conventional war using drones in Pakistan, not in a pure counterterrorism strategy, but really in support of the conventional war by Pakistan against the Pakistan Taliban.  As a matter of internal US division of labor, there are policy (again, not legal) questions as to whether the CIA should be engaged in overt conventional war, or something starting to approach that.  Yet the real world constraint – trumping, it would appear up to this point and probably for quite some time – is Pakistan’s desire to have a fig leaf of deniability as to a US military role.

Conversely, as the Mazzetti article signaled there are important questions as to whether it is a good idea to have the US military expanding further into clandestine, secret – covert, in the vernacular, not legal term-of-art, sense – operations.  As I said, in some important respects, civilian oversight and accountability is stronger regarding the CIA – although I believe that in any case, the rise of new technologies such as smaller and smaller drones that allow for still more discrete uses of force argue for a review and revamping of oversight and accountability.

In effect, Petraeus is seeking to outflank the transnational terrorist enemies by anticipating where they might go, what new groups with the same tendency of violent jihadist beliefs might arise in places outside of the places – Pakistan, Yemen, Saudi Arabia, Somalia, Iran, etc. – where they currently arise or find haven.  He wants to get there first, with knowledgeable people – for the long term and, presumably for the medium term, have intelligence capabilities with respect to Iran.  As several officials quoted in the article say, this does not raise a big problem with the intelligence agencies, given that there is plenty of work to go around.  But it does raise longer term policy issues about who should do what kinds of things.

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