Published by The Lawfare Institute
in Cooperation With
To judge by AP writer Kimberly Dozier's story today, "CIA-led force may speed Afghan exit," some version of that scenario might be under consideration, at least embryonically.
Top Pentagon officials are considering putting elite special operations troops under CIA control in Afghanistan after 2014, just as they were during last year's raid on Osama bin Laden's compound in Pakistan, sources told The Associated Press. The plan is one of several possible scenarios being debated by Pentagon staffers. It has not yet been presented to Secretary of Defense Leon Panetta, the White House or Congress, the sources said.The story quotes a Pentagon spokesman as denying that the idea is being discussed. Dozier's story offers a political explanation for why putting the CIA in charge of military special operations units in what, in effect, becomes operationally a combined force but which is technically under CIA control:
If the plan were adopted, the U.S. and Afghanistan could say there are no more U.S. troops on the ground in the war-torn country because once the SEALs, Rangers and other elite units are assigned to CIA control, even temporarily, they become spies. No matter who's in charge, the special operations units still would target militants on joint raids with Afghans and keep training Afghan forces to do the job on their own.I have no inside track on the legal analysis inside DOD or CIA, but I have my doubts that this is legally how they view it. (I recommend that outsiders, including me, attempting to analyze these questions look to Bobby Chesney's new article on the interaction of Title 10 and Title 50 operations.) It might be true as a political matter that the administration could withdraw US conventional ground forces, put the CIA nominally in charge, and say that the US forces had exited.
The reality, everyone understands, would be much more complicated - and for reasons extending far beyond the CIA and its role. Military contractors, various protective services, other US operations for which US combat forces remained behind for coordination and to offer protection, etc., might still be present in various roles - still, one could say that US conventional combat operations had ended and those US forces had been withdrawn. I myself believe the US public, which indeed wants to see an end to the Afghan war, understands those complications and can live with them, under any administration.
Dozier's suggestion that SEALS, Rangers and other elite units temporarily assigned to CIA control become "spies" is not correct as a legal matter (at least as I understand it, again speaking entirely as an outsider). Military forces assigned to CIA command remain military, they remain bound by all US military law and regulations - including obligations under the laws of war. Moreover, they do not lose their combatant character so long as they adhere to obligations of distinction. Moreover, the US, so far as I know, distinguishes "clandestine" military operations where, in case of capture, the US will always acknowledge its personnel, from civilian "covert" operations by the CIA, in which the US might or might not. It is not accurate - indeed, dangerously inaccurate - to characterize them as "spies" even if under civilian agency command.
The operational reality, in any case, that these forces appear to moving toward a commingled model of special operations using military and civilian assets together. This has raised much concern that the purpose of this is in order to lower the legal safeguards of the laws of war for how force is used and for its accountability. I believe this concern is misplaced, for a number of reasons, not least of which is, as noted, the military is never free to lower to the law of war standards, and the result of commingling has been to require the CIA essentially to adopt them as its own standard of conduct. These were, again so far as outsiders can tell, not questions that the CIA appears to have confronted systemically in the immediately aftermath of 9/11, as the CIA and special forces entered Afghanistan. But the increased awareness of legal standards, including through an influx of military lawyers assigned to its operations to assist with the law of targeting and operations over the course of the last decade seems to have caused it to have essentially taken those standards on board.
Can one prove this as outsiders? No - and it would be helpful if the CIA were more forthcoming in explaining to the public that it adheres to the fundamental principles governing conduct in all uses of force, necessity, distinction, and proportionality, and that the fact that civilian agents use force does not alter those conduct principles below how the military would conduct the same operations. That defense of the legality of its operations using force would require articulating two crucial, but mostly missing, pieces of the public discussion: First, why the defense and intelligence communities believe that it is useful and advantageous to have civilian agents ever engaged in in the use of force, as a matter of its operational utility, rather than limiting the civilians to strictly intelligence gathering and analysis, and outsourcing use of force to military forces. I am frequently struck by how much that proposition is taken as obvious within the intelligence community but never articulated to the outside world. Second, why the use of force by civilian agents such as the CIA is ever legal, as a matter of both domestic and international law, and what standards must be met in its conduct for that to be so.
Moreover, legitimacy over the long term (in this emerging paradigm for using force) would be enhanced were the CIA to explain more comprehensively how legal review and lawyers, including those who come over to train or assist from the military, are incorporated into operations. And finally to explain more comprehensively that although, for obvious reasons, accountability cannot be given to the public as with other functions of government, accountability does run to Congress as the public's representatives and directly to the President. In that regard, critics might consider that the gradual merger of Title 10 and Title 50 operations, if indeed it is happening, could turn out to be the best of both worlds - the law of war standards that govern the military and the heightened political accountability of the reporting requirements of the covert action law. But if that's the way in which the executive branch sees it - as a win-win for policy and law - then it should say something more than it has as to why that is so.
The risk in not making this legal and policy architecture plainer to the public is that dark intimations of unaccountable forces undermine their legitimacy - not with the general public, which understands the reasons for secrecy, apparently, far better than many policy elites - in a world in which it is simply not possible to adopt the traditional CIA approach and blandly deny comment. It is impossible to square the obviously sanctioned leaks over many years and two administrations about the drone programs with self-serving insistence on deniability. The executive branch needs to develop much more nuanced categories of "truly covert," "merely deniable," "no comment on operations but of course we have a program," and other categories.
The senior lawyers in the intelligence community might consider the peculiar gap between how the wider public sees their activities and how the executive branch itself sees them. The American public sees this as justified and legitimate, yes - but largely on the basis that crude necessity makes it legitimate and the "spies" exist to do what they must in darkness, so long as no one knows (much) about it. I know of no senior lawyer in the defense or intelligence community who sees this as justified or legitimate on the basis of "necessity" in that way - essentially "necessity" as based around exceptions to the rule of law. American leadership, lawyers and executives, see these activities as lawful, law-based, and law-limited - not the product of some special notion of "exception."
As drone warfare, targeted killing, discrete and discriminating uses of force through advanced technology become the new normal, however, they will not remain in the shadows, neither will they be justified by some immediate exigency - they will become, and are rapidly becoming, the standard of a certain form of counterterrorism uses of force. It will not be unknown, and the traditional alternative to explaining the basis in law - secrecy and deniability - will not be available. The American public will want to know that there is a grounding in law, domestic and international, for these activities. Since the senior leadership and lawyers believe that there is such a basis, they should start articulating it now. Harold Koh has taken some important steps forward in that direction; likewise John Brennan and most recently DOD General Counsel Jeh Johnson. The civilian intelligence agencies likewise need to start publicly articulating the US government's interpretation of the law that underlies these activities.
This is not a call to cave to the ACLU or other advocacy groups whose agendas will never be satisfied (the "if you give a mouse a cookie" problem). The NGO advocates fundamentally (i) oppose the CIA ever using force, (ii) oppose targeted killing outside of some legally novel concept of a "hot battlefield" as a violation of human rights law, (iii) do not accept that a process is governed by the rule of law unless an Article III judge has ruled on it (and depending on the outcome, not necessarily even then), rather than any process of accountability among the political branches alone, and (iv) have grave qualms about drones as technologies that enable the first two without putting US personnel at risk. Cave on anything beyond statements of legal principles and process, and the result will not be "institutional settlement," but instead merely moving the goal posts; there isn't really room for "dialogue," let alone negotiation, but simply and necessarily one-sided articulation. That said, the articulation is important, because there is a problem when even a Kimberly Dozier story cannot resist a mild intimation of unsavory lack of accountability:
But a CIA-run war would mean that the U.S. public would not be informed about funding or operations, as they are in a traditional war. Oversight would fall to the White House, top intelligence officials, and a few congressional committees. Embedding journalists would be out of the question.None of that is true, at least not necessarily. Nothing in the law requires that because the CIA runs it, the operation must be "covert" in those ways. The executive branch can use the CIA without in every matter invoking the shell of secrecy; Congress, if it wanted, could do the same. In any case, the actual problems of legal and policy legitimacy would likely be much worse than this, though not one of accountability as such. It would be, rather, that vast amounts of operations could not be conducted in secrecy - not as a practical matter. The CIA might be running not just special operations forces, but proxy forces of Afghans, for example, and drone programs, and much else besides. These activities wouldn't be secret, they wouldn't be beyond reporting - but attempts to conduct policy by leaks to journalists, on the one hand, and official "neither confirm nor deny," on the other, would surely undermine its public legitimacy. If not in a second Obama term, then in some future administration: things would inevitably fall apart; the mish-mash cannot hold.
(I have edited this both for substance and clarity. Thanks Instapundit! And note that Rick Pildes makes a similar kind of argument for greater clarity on legal rationales, in a much more sophisticated way. Finally, if you would like to comment on this, you can do so at the post at Volokh Conspiracy.)