One of the points we develop in Shadow Warfare is exactly how complex – and how conflicted – the legality of covert operations is in the real world of multiple legal contexts. And things get even more complex in the world of counter terrorism.
I’ve previously posted on the existence of various “understandings” between the Department of Justice, specifically the Attorney General, and the CIA. The reason those understandings came to be is simply that CIA clandestine officers routinely need to conduct missions involving activities which may be illegal under both civil and military code. Those missions are sanctioned under the code and sanctions of the National Security Act of 1947, which acknowledged that a number of activities – ranging from burglary, armed robbery, theft, and even murder – were going to have to be necessary in the cold war actions against Communist agents and designated foreign intelligence “targets”. As regime change and regime maintenance became the order of the day, different types of normally criminal acts were also conducted under the authorization of that legislation. When you consider yourself to be at war, even if its a cold war, the normal civil legal code simply does not work. That’s is true for the uniformed military and associated services which are subject to the Uniform Military Code. The National Security Act and its related code extended protection for acts which go well beyond what is sanctioned by the UCMJ – which of course does allow for actions such as murder since that is the nature of conventional warfare.
The fact that clandestine service personnel would have to perform acts and associate with individuals performing acts which were illegal under both civil and military code was addressed in the national security related code. For some reason there is often much talk of agency employees breaking laws, as if they were covered by civil codes in sanctioned operations. That simply is not the case – of course another question is exactly what is legally sanctioned and what isn’t. That is an issue that rises all the way up to the Commander in Chief and one which we discuss that at length in SW. Beyond that there is the fact that to do their job, clandestine personnel in some missions have to associate with people who doing illegal things such as gun running and drug smuggling. That is simply the nature of things in conducting “deniable” operations. But that is also the point that the missions begin to produce some serious legal conflicts.
The “understandings” discussed in SW deal with verbal and sometimes minimally documented agreements between the Attorney General and the CIA Director in regard to missions and activities where personnel are going to be either associating with assets who may be doing illegal things – such as Contra drug activities in the secret war against Nicaragua under President Reagan. Understandings also addressed the issue of prosecuting unsanctioned, illegal activities by CIA officers where conventional legal action might expose “sources and methods” – that understanding came about in the early days of the agency.
But if you thing that makes things complex, and conflicted, matters get worse when you realize that such understandings are only at the very highest levels and exactly what gets communicated down the chain of command becomes extremely difficult to determine, with personnel simply assuming they are legally “covered” in sanctioned operations.
Recently I’ve come across another “understanding”, this one much more recent and in the realm of counter-terrorism. In his book “Against all Enemies”, counter terror and cyber warfare guru Richard Clarke writes of his early CT days under Bill Clinton, in which the Clinton Administration was really trying to move against Bin Laden and Al Qaeda. Clinton had issued the required presidential security directives for Clarke to move forward with his NSC level counter-terrorism effort. However he immediately ran into the legal obstacles related to domestic CT efforts. First off the FBI really had no files on Bin Laden or AQ simply because the FBI works criminal cases for the Justice Dept and there were no working crimes against either party. But upon working his way up to the Attorney General, it was made clear to Clarke that even if they did that “any information developed in a criminal investigation could not be shared with civilians” and that meant no sharing with either the NSC or the CIA for that matter.
For the record, I strongly recommend that everyone read Clarke’s book to introduce a little balance into your consideration of current affairs in regard to national security issues, it will also give you a good background in comparing current Congressional statements about counter terrorism with exactly what Congress did not do about it in the early days – and why.
In any event, Clarke eventually did reach an “understanding” with AG Janet Reno in which she stated that in the case of foreign terrorism related activities, the Bureau would at least be allowed to share information with a few very senior NSC personnel. Reno agreed to put that into a memo of understanding – which never happened – but at least in some instances Clarke was able to use the “agreement” as leverage to pry out limited information. The bottom line in all this is that quite often there are some very significant legal conflicts involved in virtually all “self defense” activities beyond that of simply declaring war and letting go with the weapons – and to date Congress has managed to ignore what has become an more and more complex matter in 21st Century affairs. Operating against global terror in 2014 under legislation initially passed in 1947 to fight the Cold War against Communism, talk about “conflicted”.