Covert Action and International Law Compliance

Ashley Deeks
Wednesday, December 18, 2013, 3:35 PM
Last night Jack highlighted certain parts of Caroline Krass's answers to the Additional Prehearing Questions that the Senate Select Committee on Intelligence posed to her.

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Last night Jack highlighted certain parts of Caroline Krass's answers to the Additional Prehearing Questions that the Senate Select Committee on Intelligence posed to her.  One of her answers will be of particular interest to international lawyers.
One SSCI question asked, "Under what circumstances must covert action involving the use of force comply with treaties to which the United States is a party, including the United Nations Charter and the Geneva Conventions?"
Krass's answer (which presumably was reviewed and cleared throughout the USG) states in relevant part:
The President may direct covert action to the extent authorized by Article II of the Constitution and through the process and within the limits imposed by Congress.  Congress has regulated covert action through the National Security Act of 1947, as amended.  Section 503(a)(5) of the Act explicitly provides that a covert action finding "may not authorize any action that would violate the Constitution or any statute of the United States."  By this language, Congress did not prohibit the President from authorizing a covert action that would violate a non-self-executing treaty or customary international law.  Such a covert action would, however, need to comply with treaty provisions implemented in a domestic statute. . . . As a general matter, and including with respect to the use of force, the United States respects international law and complies with it to the extent possible in the execution of covert action activities.
Five points are worth noting.
(1)  Krass's answer strongly implies that the President may authorize covert action that violates non-self-executing treaties or customary international law (CIL), though she does not state this explicitly.  I'm not aware that the USG has said this before as plainly as it does here, even though scholars and others who track these issues long have understood this to be the USG's interpretation internally.  Krass’s answer isn’t totally clear-cut on this, however.  She states that the President may direct covert action "to the extent authorized by Article II"—without stating a view on whether and under what circumstances Article II alone would authorize the President to order actions that would place the United States in breach of a non-self-executing treaty or CIL.  (It's not clear why her answer omits mention of self-executing treaties.)
(2) As for whether Article II authorizes the President to put the U.S. in breach of the Charter and other non-self-executing treaties, a 1989 OLC opinion concluded that non-self-executing treaties “have not become part of the domestic law of the United States,” and thus that the President can disregard them.  Both parts of this conclusion are controversial.  The Krass answer does not indicate whether she (or the USG) concurs with the 1989 OLC opinion—but it does not disagree, either.
(3) As for customary law, the Court’s decision in the Paquete Habana famously stated that the United States must comply with CIL "where there is no treaty and no controlling executive or legislative act or judicial decision."  The 1989 OLC opinion concluded that "the power in the Executive to override international law is . . . an integral part of the President's foreign affairs power" because in order to permit the United States "to participate in the evolution of international law, the Executive must have the power to act inconsistently with international law where necessary."  In other words, the 1989 opinion concluded that the Executive has the power to violate CIL in an effort to try to change international custom.  Whether that conclusion is right or wrong, it’s hard to see how it would apply to covert action, which by its very nature can't be an effort to alter international custom (since the U.S. role is intended to be unacknowledged).
(4) What about the text of the National Security Act itself?  It is a strangely written statute: it expressly prohibits covert action that would violate the Constitution or a U.S. statute, but is silent about whether covert action may violate treaties or CIL.  To be sure, it does not specifically authorize the Executive, when conducting covert action, to violate treaty law or CIL. It's therefore hard to say that the Act is a controlling act by Congress indicating that the Executive may violate CIL when conducting covert action.  It is also virtually impossible to treat the Act as a later-in-time statute that would override conflicting provisions of subsequently-concluded U.S. treaties.  But the Krass answer suggests that insofar as Article II authorizes the President to violate CIL or treaties, the Act does nothing to restrict such action.
(5) Krass’s answer probably will not surprise close allies or other states that have been paying attention to U.S. domestic law (or who understand covert action).  But it may chagrin foreign governments that strongly value international law compliance (or at least value public attestations of absolute compliance with international law) in all contexts.  It may also give some pause to future treaty partners as they embark on certain treaty negotiations with the USG, if those partners interpret the USG position to be that each non-self-executing treaty contains an implicit covert action carve-out.  (Of course, the USG would remain bound on the international plane by its international obligations, regardless of what U.S. domestic law permits.)
In short, this Prehearing Question and Answer illustrates that important and hard questions about the relationship among Article II, the National Security Act, and international law have not been clearly resolved, and are not resolved in this answer, which appears carefully crafted to retain some ambiguity in the Executive’s position.

Ashley Deeks is the Class of 1948 Professor of Scholarly Research in Law at the University of Virginia Law School and a Faculty Senior Fellow at the Miller Center. She serves on the State Department’s Advisory Committee on International Law. In 2021-22 she worked as the Deputy Legal Advisor at the National Security Council. She graduated from the University of Chicago Law School and clerked on the Third Circuit.

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