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.
It matters in domestic law, too, that the OBL raid has been described in some quarters as simply a conventional military operation. But the raid was also described by Panetta as a covert operation, by reason of CIA participation, with attendant reporting and oversight requirements. In the OBL raid, no one is unhappy to report, of course. But in the future, these commingled operations might produce less positive results. Clarity on the oversight requirements, when and by whom they are triggered in mingled operations, is far from merely lawyers’ worries.
Much more important, however, but also much harder to convey, is the importance of engagement with international law. The time for saying with a shrug, of course it’s illegal or extralegal, is long gone. Needed, rather, is for the United States to articulate on a regular basis its views of why it thinks its counterterrorism programs are consistent with international law. State Department legal adviser Harold Koh, to his credit, has done so both in the case of targeted killing using drone warfare, in a widely remarked speech last year, and more recently in a short statement on the bin Laden killing to the international law blog Opinio Juris.
The United States does not believe it is acting extralegally, let alone illegally, in its counterterrorism programs, and it should be willing to say why. The U.S. government believes, as former State Department lawyer Ashley Deeks observed in a recent, influential paper, that states that are unable or unwilling to deal with terrorists in their midst lose claims of sovereignty, thus allowing other states to reach inside to deal with them. The U.S. government believes, moreover, in Koh’s formulation, that even covert operations undertaken outside of an armed conflict must still adhere to international law principles of necessity, distinction, and proportionality in their conduct; there are limiting principles of international law that the U.S. recognizes and abides by.
The problem is, such public, official articulations are rare. Without question, lawyers at Defense, Justice, the CIA, and other agencies closely scrutinize U.S. practices and operations for legality under both domestic and international law. This is good and proper, particularly as secret opinions can address facts that must remain secret. But it is not enough, because secret opinions, however persuasive, do not convey legitimacy. Public legitimacy does not require that the government reveal secret facts, programs, activities, and other things that ought to remain secret. But there is much that can be shared about the basic interpretations of domestic and international law that inform the necessarily secret work.
It is quite true that wide swaths of critics won’t be satisfied; that’s not the point. The international law community will never be satisfied, and whatever one gives them, if it’s done merely to appease them, they will take as weakness. International law critics will speak with utter confidence and great bluster. “International law” is better understood not so much as a unified field with definitive answers but as a set of more and less “plausible” interpretations, in a world of sovereign states in which there is no final adjudicator to say yes or no. It is fused with diplomacy, politics, and real-world consequences.
The United States should seek to convey that it has a considered, plausible view of the law, whether shared by the critics or not. That view will achieve public legitimacy in no small part because the U.S. government has the confidence to articulate it and defend it as such. This is an approach to the public articulation of international law begun by then-State Department legal adviser John Bellinger in the later years of the Bush administration, and while it requires being willing to weather a great deal of criticism and sometimes abuse, it is the right approach.
Moreover, as current legal adviser Harold Koh has been careful to note in his speeches, these legal views are connected in their claim of plausibility to a long line of jurisprudence articulated by the State Department over decades. One might disagree with the conclusions, but this jurisprudence cannot be dismissed out of hand. The decades-old views of the United States on international law matter more than those of Bolivia or Tajikistan, or subcommittees of the United Nations, or congeries of NGOs. Which is to say, the U.S. view of its counterterrorism activities is that they are not truly “extralegal” but have a legal basis, including limits upon them, even if they are not the limits sought by Washington’s critics.
This call for the U.S. government to put forward its genuine view of the legality of its use of force in the war on terror is not what it might sound like—a foolish and misguided call to “engage” with an “international community” that will never approve of such actions. The U.S. government should be utterly clear that in articulating its international law positions, it is not seeking permission. It is not granting anyone in the international community a veto on U.S. action. It has no reason, for example, to engage with the U.N., its special rapporteurs, or the Human Rights Council on this issue.
The United States should, on the contrary, assert its considered view of what it believes is a legal and essential category for the use of force in combating transnational terrorism—as well as its limits. It is happy to entertain debate, discussion, and disagreement, but after due consideration of other views and taking them as it thinks proper, it finally abides its own counsel. Washington’s bedrock position on international law, after all, is that the views of a core international actor such as the United States might not be decisive in determining international law—no one is—but neither can its views ever be merely dismissed, either.
These “intelligence-driven” covert operations are not going away. Integration of military and civilian assets will make them easier and more effective. The United States will conduct such operations more frequently and more visibly than anyone else. A consistent and unapologetic public stance on the basic principles of their legality by counselors to the United States government—including lawyers in the CIA—is an important mechanism to defend their legitimacy within this country and abroad, and on something more than merely their functional utility. It is hard to imagine that Director Petraeus would settle for less.
Kenneth Anderson is a member of the Hoover Task Force on National Security and Law, a Brookings Institution fellow, and a law professor at American University.