Two Important Washington Post Articles on the CIA and JSOC

I wanted to flag for reader attention two articles in the Washington Post on the CIA and JSOC (Joint Special Operations Command), and their evolving roles as central counterterrorism fighters.  The first is by Greg Miller and Julie Tate, “Since Sept. 11, CIA’s focus has taken lethal turn,” September 2, 2011.  The second is by Dana Priest and William Arkin, “Top Secret America: A look at the military’s Joint Special Operations Command,” September 2, 2011, and adapted from Priest and Arkin’s new book, Top Secret America, which I look forward to reading.

Over at Lawfare, Bobby Chesney talks about the first article, and some of the legal aspects raised or implied in the gradual integration of CIA operations with JSOC operations – what, referring to US law, is the interplay of “Title 10” operations (military) with “Title 50” operations (CIA).  As to the second article, on JSOC, speaking in my august capacity as Lawfare’s book review editor, I plan to find someone knowledgeable in the law and policy to review it, and I’ll let people know when that happens.

My own interest in these topics – aside from drones and targeted killing – is somewhat related to Bobby’s detailed legal analysis of the separate domestic legal authorities under these different statutory provisions.  But it runs to a more broadly conceptual question, viz., whether there is, by implication, an emerging “law,” or at least “norms,” of the use of force in something that we can loosely call “covert action” but which is, in many circumstances, not truly covert, but instead at most “deniable.”  The distinction matters because countries traditionally have hid behind the covert nature of covert action as a way of not having to discuss whether there are any rules or standards, not necessarily and unlikely to be “international” in a formal legal sense, but still norms for the conduct of such operations – either because they were genuinely unknown to the public, or else because even if hinted at, they were sufficiently under wraps that deniability could be plausible.  At least plausible enough not to have to talk about its conduct.

The emergence of targeted killing and drone warfare by the United States, and partly by Israel, has altered that.  These operations are at most thinly-deniable, not covert nor plausibly deniable.  They are denied (more exactly, “neither confirm nor deny”) with respect to Pakistan for purely political reasons, not because they could plausibly be denied.  In that case, however, the legitimacy of the operations, particularly with regards to how they are conducted, becomes an issue, as a political and legal issue.  I am all in favor of targeted killing and drone strikes against “covert” targets – places where conventional hostilities are not at that moment underway – and depending upon circumstances either as part of an armed conflict or else as “naked” self-defense.  Legitimacy requires – at least for Americans – some sense that there are rules and norms; not necessarily black and white, and certainly not a set of rules that might satisfy Human Rights Watch or the ACLU – but norms of some kind for the conduct of these operations.

For that reason, I am coming to think that the most important contribution that Harold Koh, as Legal Adviser to the State Department, and hence the legal voice of the United States on this matter, will turn out to have made to international jurisprudence, is his repeated assertion both that the conduct of targeted killing  – whether with drones or human teams, whether by the CIA or by JSOC, and whether as part of an armed conflict or as “naked” self-defense – must still conform, as with any use of force, to norms in its conduct of necessity, distinction, and proportionality.  That, for the first time I am aware, is an official assertion by a senior legal official of a leading state that covert violence conducted by a state has conditions attached to its conduct.  Because this kind of “covert” activity is widely known and merely deniable, and because it being widely known creates demands for legitimacy, and since legal legitimacy requires the acknowledgment of legal norms, even necessarily very general ones, the result is the gradual extension of conduct norms into covert activities.

That’s an important legal development, and as someone who is strongly in favor of such operations, I think it is an important step forward.  Those norms, it seems to me, will not be, for a long time if ever, anything other than domestic rules and rules of engagement that might, over time, be seen as a form of “soft” international law, very soft, something like “best practices.”  The laws of war seem particularly inapposite if applied in their detailed, treaty forms – conceived for conventional war, they are overly technical in matters that do not have much to do with these operations.  What matters are the general principles – in my view, the standard for the conduct of such operations cannot, in the basic principles of necessity, distinction, and proportionality, fall below what the military standard in an actual armed conflict would be – but it does not require all the technical legal apparatus of conventional war, either.

In the other direction, however — away from permission and toward greater constraint — a general observation about these “intelligence-driven uses of force,” particularly in targeted killing, is that they typically ought to require a higher standard of “necessity” in determining the target than conventional military operations would require — this is, after all, what makes it intelligence-driven targeted killing. In that particular aspect, covert action (again speaking loosely) ought to have standards that are higher than simply those that are and legally should be applied to that other use of drones – not targeted killing, but instead the targeting of a mass of combatants id’d as fighters crossing the Afghan border to fight Americans. (Drones have a role in both conventional warfare and special operations targeted killing, but the latter kind of use in special operations should apply a higher standard of identification and necessity. It is important to disentangle the uses of drones in different kinds of activities.) So the idea of applying general customary law principles applicable to all uses of force, even if the technical machinery of conventional war law as found in the treaties does not apply, is not a means of lowering the standards of conduct, but at least for certain purposes, raising them to reflect the “intelligence-driven” nature of this activity.

(This relates, by the way, to Bobby Chesney’s project of examining how Title 10 and Title 50 interrelate in part because the integration of military personnel with CIA personnel means that military standards will have to carry over when it comes to the basic law of war rules; military personnel are bound to apply in all operations, no matter what.  I’d venture that the integration of military personnel into integrated operations will be the catalyst bringing these standards with them.)

I should add my congratulations to the Post’s national security reporting team – I have often praised the WSJ’s team in the past, with good reason, but the Post has outstanding folks doing outstanding reporting on these issues.

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