Even before the successful raid against Osama bin Laden was announced, news that America’s most admired general, David Petraeus, would take the helm at the CIA while CIA director Leon Panetta would become secretary of defense had induced much discussion about the intertwining of the CIA and military special operations. The intelligence community’s agencies and military intelligence and operational assets have been gradually converging. The results include the counterterrorism drone campaign and the intelligence-intensive pursuit of “high value” terrorists. The OBL raid—a combination of relentlessly focused CIA efforts over many years and, at the end, a military SEAL team on the ground—has now pointed the way for intelligence and military assets to work as one.
All this is to the good, but there is a crucial gap. The law—or at least its public articulation—appears not to have kept pace with operational and institutional integration, and the increasing scope and importance of special operations. That’s so with respect to both domestic U.S. law and international law.
Does it matter? If it works for Petraeus and Panetta, and for the CIA and military special ops, why should anyone care whether U.S. domestic law governing the uniformed armed forces and the “intelligence community” precisely reflects working relationships on the ground? So long as the statutory oversight process for the intelligence community is followed and the president makes the required reports to Congress, surely only lawyers could get very worked up over the legal niceties.
International law, for its part, might be even less interesting on questions of covert action and what we might call the “intelligence-driven uses of force” that increasingly account for counterterrorism operations. That’s so whether it is targeted killing using drones or human teams on the ground. As Al Gore is reported to have said in the Clinton years, of course it’s illegal—that’s why it’s covert.
The traditional, yet mostly unstated and informal, position of countries’ intelligence agencies on covert operations has three elements: First, covert actions are legal with respect to the law of the intelligence agency’s country. Second, covert actions are possibly (i.e., almost certainly) illegal with respect to the domestic law of the country where the action takes place (but, then, agents are not claiming any privileges such as combatant status, either). Third, covert actions are something like “extralegal” as regards international law. “Extralegal” is not actually a term of international law; like “covert action,” I use it colloquially. Espionage uses of force are a violation of the international law of sovereignty, apart from any violations of that country’s laws. And yet countries do it, the United States and a long list of others. States have long done it and are not going to stop doing it—or admit to doing it, either. Covert action’s extralegal status is either a bug or a feature, depending mostly on how secret you manage to keep operations.
Extralegal is distinctly a bug for the United States, however, because we are very, very bad at keeping secrets. Covert operations frequently do not remain covert—sure, one can hypo-thesize a universe of “unrevealed” covert actions compared to which the ones we know about are a tiny percentage. But no one believes the United States is very good at keeping these things secret. And when things become public, one of the first questions is always, was it legal? Yes, people also ask, did it keep us safe—but Americans expect law and effectiveness to come together at some point. Law matters because it reflects and structures legitimacy in the use of force; it matters to the American public and beyond. It matters equally or more to the people tasked to use force on behalf of the United States. Whether police, military, or civilian intelligence agents, they want to know the legitimating principles behind what they do, and that means laws.
So it matters to more than just lawyers whether the bin Laden operation might have contravened the Ford-era executive order banning assassinations; and it matters that the executive order is one sentence long with no definitions, because it shows how little that provision has kept pace with accepted practice. It matters in special ops whether actors on the ground are CIA or military, because it might affect whether the U.S. government would demand POW treatment in case of capture of its personnel—a commitment that soldiers take as bedrock, while civilian CIA operatives understand that deniability as civilians might preclude that in some circumstances.