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Ongoing "Covert" Training of Syrian Rebels: But Is It Still Covert . . . , And, If So, Why?

Jack Goldsmith, Marty Lederman
Monday, September 22, 2014, 8:45 AM
[Cross-Posted at Just Security Last week Congress approved, and the President signed, legislation that authorizes the Secretary of Defense (see section 149) to "provide assistance, including training, equipment, supplies, and sustainment, to appropriately vetted elements of the Syrian opposition and other appropriately vetted Syrian g

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[Cross-Posted at Just Security Last week Congress approved, and the President signed, legislation that authorizes the Secretary of Defense (see section 149) to "provide assistance, including training, equipment, supplies, and sustainment, to appropriately vetted elements of the Syrian opposition and other appropriately vetted Syrian groups and individuals," for three specified purposes, including "defending the Syrian people from attacks by the Islamic State of Iraq and the Levant (ISIL), and securing territory controlled by the Syrian opposition." Earlier in the week, in a hearing of the Senate Foreign Relations Committee, Senator Tom Udall argued that in order to evaluate whether to authorize such spending, legislators had to learn more about the effectiveness of the U.S.'s ongoing efforts, for more than a year, to train those same Syrian rebels.  He asked Secretary of State Kerry for such details:
Everybody’s well aware there’s been a covert operation, operating in the region to train forces, moderate forces, to go into Syria and to be out there, that we’ve been doing this the last two years.  And probably the most true measure of the effectiveness of moderate forces would be, what has been the effectiveness over that last two years of this covert operation, of training 2,000 to 3,000 of these moderates? Are they a growing force? Have they gained ground? How effective are they? What can you tell us about this effort that’s gone on, and has it been a part of the success that you see that you’re presenting this new plan on?
Secretary Kerry's response was . . . that he is not at liberty to respond:  "I hate to do this, but . . . I know it’s been written about in the public domain that there is, quote, 'a covert operation.'  But I can’t confirm or deny whatever that’s been written about and I can’t really go into any kind of possible program." Worse than that--the Executive's view might be that most of Congress, including the Senate Foreign Relations Committee itself, cannot be informed about this "covert action" program.  As Andy Wright recounted, Committee Chairman Menendez lamented that:
[T]his is a problem that both the administration, as well as the Senate leadership must be willing to deal with because when it comes to questions of being briefed on covert operations, this committee does not have access to that information. Yet it is charged with the responsibility of determining whether or not the people of the United States should, through their representatives, support an authorization for the use of military force.  It is unfathomable to me to understand how this committee is going to get to those conclusions without understanding all of the elements of military engagement, both overtly and covertly.  And so I am foursquare with you, but this is a challenge – I’ll call it for lack of a better term a procedural hurdle – that we’re going to have to overcome if we want the information to make an informed judgment and to get members on board.
(We do not know whether, in response to the Chairman's complaint, the Administration has taken any steps to offer the Senate Foreign Relations Committee and its House counterpart access to information about the covert training program.) This inability of government officials to speak publicly of the ongoing aid program--and perhaps not even to be able to brief the Senate Foreign Relations Committee and other relevant committees about it--appears a bit strange, to say the least.  After all, one year ago, in another Senate Foreign Relations Committee hearing, in response to a question from Senator Corker about why U.S. aid to the Syrian rebels had been delayed, Secretary of Defense Hagel acknowledged that in “June of this year . . . the president made a decision to support lethal assistance to the [Syrian] opposition, as you all know,” and that “[t]his is, as you know, a covert action.” Then, on Thursday of last week, in debating the legislation to authorize overt training of the rebels, Senator Graham said on the Senate floor:  "I think the issue people are focusing on about the continuing resolution is the changing of the training of the Free Syrian Army from title 50, a covert program, to title 10, the Department of Defense, where it will be out in the open."  160 Cong. Rec. S5749; see also id. at S5739 (Sen. Paul) ("We did give arms and assistance to the rebels through secret CIA operations, through our allies, through our erstwhile allies.  We gave 600 tons—let me repeat that—we gave 600 tons of weapons to the Syrian rebels in 2013 alone."). The rebel training operation, in other words, is not only an open secret, but has also been publicly acknowledged, to various degrees, by several Senators and by the Secretary of Defense.  Perhaps certain details of the operation must remain classified in order to, for example, protect sources or the promised secrecy of particular agreements with parties overseas.  But what is the justification for officials not speaking publicly at all, even in general terms, about the nature and effectiveness of the ongoing Syrian rebel aid, and for (apparently) refusing to brief Senators on the committee charged with overseeing the conduct of U.S. foreign relations? The fact that the President originally authorized the rebel training (according to the SecDef and Senators Graham and Udall) as a covert action--i.e., pursuant to a covert action "finding" described in 50 U.S.C. 3093(a)--is not a reason for such categorical secrecy requirements.  As Marty has explained, this gets it exactly backward:
[T]he primary function of the [covert action] statute is to prescribe what must happen if an activity is intended to be unacknowledged, rather than prescribing whether an activity can or should be acknowledged in the first instance.  And this brings us to a common cart-and-horse misunderstanding: It is often assumed that a particular activity must remain unacknowledged because the President has signed a covert action finding authorizing that activity.  But that gets things backwards.  Rather, the President must sign a covert action finding if–that is, because–he has already determined that U.S. involvement in an activity to influence political, economic, or military conditions abroad should or must be unacknowledged–a determination that . . . is a function of diplomacy and policy, not domestic law.
The President's covert action finding, in other words, is not the source or reason for the nonacknowledgement, but is instead a legally required incident of an independent decision, made for nonlegal reasons, that U.S. involvement in the operation must not be acknowledged. Nor would the CIA's possible involvement in the Syrian aid operation--as recounted by anonymous "officials" in this story a year ago--create a legal barrier to officials' public discussion of the operation.  Marty has also explained that there is nothing in the law that requires secrecy of CIA operations:  As CIA General Counsel Caroline Krass recently attested, the CIA can engage in "overt" activities (i.e., activities in which U.S. involvement is acknowledged).  And as the example of the bin Laden "Operation Neptune Spear" demonstrates, an operation involving the CIA that was once "covert"--in the sense of being originally unacknowledged and the subject of a covert action finding--can nevertheless be openly discussed, if and when the President determines that U.S. involvement need no longer be unacknowledged. It's hard to imagine why U.S. involvement in the training of Syrian rebels must remain officially unacknowledged even now, in light of Secretary Hagel's public acknowledgment, and in light of the very public debate and congressional vote that just occurred on this very subject:  After all, going forward there won't be any secret that the U.S. is training the rebels; so why must the current operation remain unacknowledged? For all we know, there may be some good reason for officials' inability to discuss the topic in a Senate hearing or in a closed session with the Senate Foreign Relations Committee, even as a general matter.  (Each of us has previously explained what the diplomatic and operational--not legal--reasons might be for official nonacknowledgement of U.S. involvement in particular actions overseas.  See, for example, this post, and this one.  Those reasons generally do not, however, preclude sharing information with members of Congress.)  If there is such a justification, however, it is not that the President issued a covert action finding, or that the CIA was involved . . . or, more generally, that the law requires continued nonacknowledgement or refusal to share information with particular legislators. The immediate need for greater transparency, at least in the Senate, may have passed--after all, Congress has now voted to authorize overt training of Syrian rebels.  Even so, the continuing legislative and public debate about the U.S. campaign against ISIL should not be unduly limited by nonacknowledgement and secrecy about operations except where there are good operational and/or diplomatic reasons for such constraints.  The executive and Congress alike should understand that the covert action statute, and the law more generally, do not foreclose transparency.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.
Marty Lederman is a professor at the Georgetown University Law Center who teaches and writes on constitutional law and related topics.

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