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October 26, 2012

The CIA is Coming

Clandestine forces could play a major new role in Afghanistan after the military goes home. What does this mean for the future? By Kenneth Anderson.


Think of the CIA as the French Foreign Legion, a friend suggested to me a year or so ago, as we talked about a hypothetical military exit from Afghanistan. My friend was thinking of the Legion’s long-standing tradition of being the last to leave under the difficult conditions—militarily perhaps the most difficult of all maneuvers—of retreat under fire. The Legion covered everyone else’s exit, and the somewhat mischievous, provocative suggestion—not quite serious, not quite unserious—was that the Central Intelligence Agency would do the same in Afghanistan. Except that it would probably never leave.

The planned exit of U.S. military forces from Afghanistan in 2014 has prompted something resembling this scenario to be under consideration, however, at least embryonically, according to some news reports. An Associated Press article said 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.” To be sure, the story also quoted a Pentagon denial that the idea was being discussed.

The AP story offered a domestic political explanation for putting the CIA in charge of military special-operations units in what, in effect, becomes operationally a combined military-CIA force that might be 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.

The suggestion that Navy SEALs, Army Rangers, or other elite military units temporarily assigned to CIA control become “spies” is not correct as a legal matter, certainly as I understand long-standing U.S. views of domestic and international military law. Military forces assigned to CIA command remain military and remain bound by all U.S. military law and regulations, including obligations under the law of war. These military forces do not lose their combatant status so long as they adhere to obligations of distinction—measures requiring them to distinguish themselves as combatants and not civilians.

Moreover, the United States distinguishes clandestine military operations—where, in case of capture, the government commits always to acknowledge its military personnel and demand prisoner-of-war treatment for them—from civilian covert operations by the CIA, in which the U.S. government might or might not do so. Civilian agents of the CIA have always understood that the basic “deal” is different for regular military and civilian covert agents (although in Afghanistan, CIA agents are also generally regarded as part of the “associated forces” of a state, entitled to combatant status so long as distinction is respected).

Clandestine military operations do not turn military service-members into “spies,” who are potentially subject to the most severe penalties under the laws of war, and it is dangerously inaccurate to suggest as such. Civilian command and control as such does not violate the laws of war—after all, in a democracy, eventually all military forces are subject to civilian command and control—so long as those in command are capable of adhering to and in fact do follow the laws of war and exercise such discipline over those in their forces.

Recent press reports and some official statements indicate that the U.S. government is gradually moving towards a “commingled” model of special operations, one that combines military and civilian assets. From an operational standpoint, the advantages are clear. Likewise from a political standpoint: there are political benefits to being able to say domestically that the United States no longer has troops on the ground in Afghanistan, and internationally that the government of Afghanistan is now in charge, with the United States merely offering assistance, never mind how extensive. From the standpoint of operational military law, however, what matters is that both the civilian and military sides of operations have both expertise and the obligation, as well as mechanisms of accountability, to ensure that law governing the use of force is followed.

A HIGHER LEGAL STANDARD

It is true that many people are concerned that this commingling model has the effect of lowering—indeed, many would say, is intended to lower—the standards of conduct and accountability of law governing the use of force. In effect, runs the worry, military special ops (JSOC) will be seconded to the CIA; military standards of conduct and accountability will be lowered to those of the CIA. One understands the source of concern: so far as outside observers can tell, the CIA did not appear to have confronted such questions of legal conduct in a systematic way immediately after 9/11, as the CIA and special-operations forces entered Afghanistan and began operations. But an increased awareness of legal standards, including an influx of military lawyers assigned to the agency to assist with targeting and operations, certainly appears to have led the agency to take those standards on board over the intervening decade.

Although there are differences in executive branch orders and internal legal authorities that assign different roles to the military and the CIA in certain circumstances (such as where each can operate), at this point I am aware of nothing suggesting that the CIA believes that the law governing its conduct in lethal targeting—such as targeted killing using drones—permits it to do anything not also permitted to the military.

In fact, I believe that this process of mingling the two operational commands can have the effect of win-win for the highest standards of conduct and accountability. After all, the military is never free to lower the laws-of-war standards, something that is baked into every JSOC operation through vetting by experienced operational lawyers. That is so whether under the nominal command of the CIA or anyone else. The effect of this would be to force the CIA—if it has not already done so—to adopt military-law standards of conduct.

This is a good thing. And it is furthermore a good thing that CIA operations, including those commingled with military operations, must also be accountable in ways that ordinary military operations are not, through congressional intelligence oversight and senior executive branch approval of covert operations. The result of commingling, in other words, might turn out to be the highest military standard of conduct combined with the heightened accountability of the CIA’s domestically required reporting of covert activities.

As part of a series of speeches offered by senior executive branch officials and lawyers of the U.S. government’s national security agencies, the CIA general counsel, Stephen Preston, offered a few months ago a statement affirming that the agency’s operations adhere to the fundamental principles of conduct: necessity, distinction, and proportionality. This is remarkable, less for the principles themselves than that the chief lawyer for a covert agency announced to the world that it might conceivably engage in covert (or at least deniable) operations—and in so doing would adhere to certain fundamental principles. How remarkable is this? Consider that up to this point, covert-action agencies of governments—and any important state has one—have never had to address the questions of the legal minimums of their conduct. They have simply refused to acknowledge that any such activity took place.

POLICY MUST STEP INTO THE LIGHT

This is a major step toward the legal regularization of what most covert actions truly are: small scale, often unacknowledged, discrete and discreet uses of force, which states undertake in what they perceive to be the interests of national security. These covert actions might include drone attacks, human teams on the ground, and into the future, newfangled technologies of precision robotic attack. These technologies and techniques will be at the core of counterterrorism against non-state, transnational terrorist groups for advanced nations. Counterterrorism thus can be waged in a precise and limited way—one that benefits from the legal acknowledgment that all lethal attacks must meet certain legal minimums in their conduct. That requirement will apply to actions undertaken by the CIA or the covert forces of any other nation.

Many people worry that mingling military and civilian forces will weaken the safeguards of the laws of war.

There are two pieces still missing from CIA General Counsel Preston’s remarks on the use of lethal force by the CIA, however. They need to be filled in with some urgency. First, why do the defense and intelligence communities believe it is useful to have civilian agents ever engaged in the use of force, rather than limiting them to intelligence gathering and analysis, and outsourcing use of force to military forces? That proposition is frequently taken as obvious in the intelligence community but seemingly never articulated to the outside world. Second, on what basis is the use of force by civilian agents such as the CIA ever legal, as a matter of both domestic and international law, and what standards must be met for that to be so?

The first question is perhaps not the task of a lawyer, since it is in effect a strategic premise that makes the legal question important. But someone in authority still needs to answer it. As to the second question, Preston’s remarks stressed correctly that the CIA sees itself as acting on the basis not merely of “necessity knows no law,” but instead pre-existing, particular, and concrete legal authority. But though he did something important by acknowledging CIA adherence to fundamental use of lethal-force principles, Preston did not state a basis for the CIA ever to use lethal force abroad as a civilian agency, particularly as a matter of international law. Moreover, if there is more to say about ways in which merely “deniable” operations, rather than truly secret ones, such as the strikes carried out by drones in Pakistan, meet the requirements of law, that should be said too.

The CIA could also enhance longer-term legal legitimacy if it explained more comprehensively how legal review and lawyers are built into operations. The agency could stress that fact although accountability cannot be given directly to the public as with other functions of government, for obvious reasons. It could say, as both Attorney General Eric Holder and Defense Department General Counsel Jeh Johnson have said, that this accountability in lethal targeting abroad does not run to the judiciary. Accountability does run to Congress as the public’s representatives and directly to the president: accountability in national security resides with the political branches of government.

The risk of reticence about this legal and policy architecture is this: dark intimations of unaccountable forces undermine the legitimacy of those policies in a world where today it is no longer possible to adopt the traditional CIA approach and blandly deny comment.

Drone warfare, targeted killing—discriminating, discretionary, and indeed discreet uses of force through advanced technology will become the new normal. They are becoming the new normal now. They will not remain in the shadows. Neither will they be justified by some immediate exigency, an appeal to urgent necessity irrespective of law. They will become, and rapidly are becoming, the standard of a certain form of counterterrorism. And “normal” for Americans means that even if secret, they must still be understood to conform to law.

The CIA should stress that it remains accountable to Congress as the public’s representatives, and directly to the president.

But what does any of this have to do with the U.S. military withdrawal from Afghanistan by 2014? What does that process of disengaging from a protracted conventional war—a withdrawal, after all, overwhelmingly supported by the American public, across the political spectrum—have to do with the legal legitimacy of the CIA in its lethal operations? Quite a lot, if it turns out that over the long run the CIA might be placed in charge of U.S. assets, both military and agency, in Afghanistan. The CIA might find itself in charge of a large-scale proxy war—a “de-acknowledged” war, you might say—once the military has formally departed.

Of course, everyone understands that even after the military is deemed to have departed Afghanistan, large numbers of military personnel will remain in one role or another alongside military contractors, security personnel, and the CIA. But after the formal U.S. departure the CIA might well find itself taking a growing role in managing the remaining conflict in Afghanistan. And not just in Afghanistan.

In that case, providing a strong basis for the legal legitimacy of the CIA in its operational role is crucial for the long term. The U.S. government has said some very important things about the agency’s role and its lawfulness. There remain, however, important things still to be said.


Kenneth Anderson is a professor of international law at Washington College of Law, American University, Washington, DC, and a visiting fellow at the Hoover Institution. He specializes in international law. Formerly general counsel to the Open Society Institute and director of the Human Rights Watch Arms Division, Anderson has written Living with the UN: American Responsibilities and International Order (2012), and a new book with Benjamin Wittes, Speaking the Law: The Obama Administration’s Addresses on National Security Law (2013), both published by the Hoover Institution Press. Anderson blogs at the law professor websites Volokh Conspiracy and Opinio Juris, and is the book review editor of the national security law website Lawfare.


Special to the Hoover Digest.