Op-Ed

A Loophole for Covert Operations

Jennifer D. Kibbe

The 9-11 Commission is to be commended for many aspects of the weighty report it has just issued. The report provides a wealth of detail about the tragic events of that day and of what led up to them. It also provides some thoughtful recommendations on how to fix the very serious problems with the nation’s ability to confront the threat of terrorism, including expanding congressional oversight of intelligence.

Which is all the more reason to be shocked and disappointed that in one very important way, the commissioners dropped the ball. Not only did they not tighten up oversight of the crucial area of covert paramilitary operations, but they effectively loosened it, creating the potential for serious problems involving covert actions over which Congress has no say or control.

In its recommendations regarding reorganization of the intelligence community, the commission states: “Lead responsibility for directing and executing paramilitary operations, whether clandestine or covert, should shift to the Defense Department,” from the CIA where it has traditionally been housed.

The commissioners’ reasoning is sound. They begin from the underlying assumption that against the current enemy, more decentralized and fluid than the Soviet opponent of the Cold War, there will be more call for smaller, paramilitary-type operations. They point out, though, that before 9-11 the CIA did not invest much in developing a paramilitary capability and that it would be redundant and expensive to build one up now when the military already has the Special Forces for exactly that purpose.

The problem lies in the fact that in all their recommendations about strengthening congressional oversight, the commissioners neglected to say anything about oversight of these covert paramilitary operations.

Some context may help highlight the problem. As defined by statute, a covert operation is activity meant “to influence political, economic, or military conditions abroad, where it is intended that the role of the United States government will not be apparent or acknowledged publicly.”

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Thus, where “clandestine” refers to the secrecy of the operation itself, “covert” refers to the secrecy of its sponsor; the action itself may or may not be secret.

Ever since post-Iran-contra reforms adopted in 1991, all agencies of the U.S. government have had to meet two requirements for covert operations: that they be justified, before the fact, in a written presidential finding, and that the administration notify the congressional intelligence committees.

Although the CIA has apparently met these requirements, there is considerable confusion over whether the military has or should.

For one thing, the law expressly exempts “traditional military activities.” In true legislative form, the law itself does not define the phrase, but the conference committee report explained that it was meant to include actions preceding and related to anticipated hostilities that will involve U.S. military forces.

That still leaves open, however, the interpretation of the word anticipated, since if future military hostilities are anticipated, no presidential finding or congressional notification are required.

Although the conference report defines anticipated hostilities as those for which operational planning has already been approved, a knowledgeable Pentagon official maintains that some in the Defense Department believe that the act gives them the power to undertake activities “years in advance” of any overt U.S. military involvement.

The second aspect of the problem is broader and more direct.

Administration officials have been nothing if not consistent in portraying the events since 9-11 as part of a “war on terrorism.” The phrase has been repeated so often that it has become second nature to most sentient Americans.

But administration and Pentagon officials mean it quite literally: We are in an active war, they say, and therefore anything the military does, including Special Forces, is a “traditional military activity.”

The upshot? Under either one of the above interpretations, the Pentagon reasons that it can send Special Forces on a covert operation to wherever it wants, with Congress having no knowledge, input or recourse.

Although many Special Forces operations are necessary and well-thought out, combining that kind of blank-check authority with a civilian administration that has a taste for pre-emption and whose judgment is already in question is a recipe for potential disaster.

There is, of course, the additional question of who would or should conduct the oversight, since the intelligence committees have traditionally had the responsibility of determining if an operation is covert yet the Special Forces fall within the purview of the more powerful Armed Services committees.

The 9-11 Commission’s efforts to strengthen congressional oversight of intelligence are welcome and should be applauded. Nonetheless, by calling for paramilitary operations to be handled solely by the military without providing for the oversight of covert paramilitary actions, the commissioners have, whether knowingly or not, created a dangerous loophole in congressional control of intelligence operations.

With the presidential candidates vying to outdo each other in supporting the recommendations, it is up to the congressional committees holding hearings to identify and close this loophole.

The requirements regarding covert operations evolved over time in response to several dangerous and embarrassing chapters in U.S. history, including the CIA’s efforts to assassinate Fidel Castro, Richard Nixon’s efforts to overthrow Chile’s Salvador Allende, and the Iran-contra affair.

Just because the military may be better suited than the CIA to conduct today’s covert paramilitary operations does not mean that military leaders are somehow immune from the pressures and poor judgment that led to previous mistakes.

Moreover, with the enemy as decentralized as it is, the potential for covert operations has spread to many more countries, meaning that the risk of collateral damage, diplomatic disputes and retaliation is much greater than it ever was in the past.