The importance (and difficulty) of the Stimson Task Force transparency recommendations . . . and a couple of legal corrections

Like Steve, I strongly recommend to Just Security readers the report on drone policy that the Stimson Task Force published yesterday.  The report is very thoughtful and balanced, and raises a number of very important questions about the relative costs and benefits of particular aspects of the U.S.’s use of drones.

I’d like to focus here on one prominent aspect of the report–namely, its emphasis on, and recommendations regarding, the need for greater transparency with respect to U.S. practices involving the use of lethal force.  (At the end of the post, I’ll also flag a couple of important legal matters that the report does not characterize accurately.)

Like the reports of U.N. Special Rapporteurs Emmerson and Heyns, the Stimson Task Force Report urges much greater transparency by the United States with respect to the details of its use of lethal force abroad.  The Report persuasively canvasses the significant virtues of decreasing the degree to which the use of force is secret or covert (i.e., unacknowledged)–not only in terms of establishing international and domestic legitimacy, but also so that the U.S. might establish and defend legal and customary norms that would cabin the future use of force by other nations.  (I offered similar observations in this post; but the Stimson Report goes into greater detail about the costs of nonacknowledgement and secrecy.)

The Task Force then offers this recommendation (p.42): “As a general principle, the United States should acknowledge the use of lethal force in foreign countries both to Congress and to the American public. … There may be occasional circumstances in which strikes must be covert and/or unacknowledged, but covert or unacknowledged strikes should be the rare exception, not the rule. . . .”

In this respect, at least, the Task Force is in accord with the President and his close advisers, who have expressed similar views:

“I think the rule should be that if we’re going to take actions overseas that result in the deaths of people, the United States should take responsibility for that.”

(John Brennan, the Washington Post, Oct. 24, 2012)

“[W]here necessary, through a range of capabilities, we will continue to take direct action against those terrorists who pose the gravest threat to Americans.  Now, as we do, we must enlist our values in the fight.  That’s why my administration has worked tirelessly to forge a durable legal and policy framework to guide our counterterrorism efforts.  Throughout, we have kept Congress fully informed of our efforts.  I recognize that in our democracy, no one should just take my word for it that we’re doing things the right way.  So in the months ahead, I will continue to engage Congress to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.”

(President Obama, State of the Union Address, February 12, 2013)

To its credit, the Report does not simply insist upon less secrecy; it also identifies the most significant obstacles to the goal of greater transparency (p.32):

We recognize that US officials frequently have compelling reasons to refrain from providing some of this information to the public.  Disclosing the evidence that led to the targeting of a particular individual might expose intelligence capabilities that are effective only if secret; in some circumstances, disclosure might jeopardize the safety of human intelligence assets.  Naming potential targets or targeted organizations creates a risk that those individuals or organizations will go “underground” even as they continue to plan terror attacks, making prevention of future attacks more difficult.  Disclosing past strikes may also anger, and prevent future cooperation from, countries that have agreed to strikes only on condition that US activities in their territory remain secret.

As I have discussed previously, these obstacles can be significant, especially in contexts where the U.S. has agreed to nonacknowledgement as a condition of foreign consent and/or cooperation.  The $64,000 question, then, is what to do about them:  What would need to change in order for the U.S. to be as transparent as everyone–the President, John Brennan, the U.N. Rapporteurs, the Stimson Task Force, etc.–agrees would be ideal?

The Report offers at least one hint of a possible way forward (p.42):  “While secrecy may be required before and during each strike, strikes should generally be acknowledged by the United States after the fact.”

I read this as a suggestion that at some point, perhaps months or years after the conduct in question, the sensitivity of intelligence sources might diminish to the point where uses of force can be detailed without compromising such sources.  No doubt that is true as a general matter.  The tricky question, of course, is how to identify when the sensitivity of sources no longer outweighs the benefits of transparency, a question that is necessarily very case-specific.  The Intelligence Community understandably is very reluctant to take any chances in this regard, even long after the fact (especially in cases where it has promised perpetual secrecy to its human sources).  Even so, the Task Force is right to emphasize that such continued preservation of sources and methods has significant costs, too–costs that are not always accorded their proper weight in the balance when it comes to deciding whether to offer a public account of a use of force–and that the need for continued secrecy should be reassessed over time.  (As I discussed recently, there appears to be a promising move in this direction currently afoot in the Pentagon.)

OK, that might be a substantial solution for the sources and methods problems in those places, such as Yemen, in which the U.S. has acknowledged it is using force.  But what about the even larger obstacle–the diplomatic realities in certain nations that have been responsible for driving the evolution toward more frequent covert warfare?  This is where the Report makes what is, to my mind, its most provocative and potentially important recommendation:  “The United States should, as a matter of general policy, refrain from promising foreign governments that it will keep secret its own use of lethal force.”

I have suggested elsewhere that such a change in diplomatic practice would, indeed, be a critical component of any significant move by the United States in the direction of transparency with respect to the use of force.  As I’m sure the members of the Task Force recognize, however, this is much easier said than done.  In particular, what is the U.S. (or any other state, for that matter) to do when an ally insists upon nonacknowledgement as a condition of its consent?

In a column in Politico yesterday, two members of the Task Force, Jeff Smith and John Bellinger, both of whom are very familiar with precisely these problems, write that “[i]t is true that many foreign governments do not want us to acknowledge that drone strikes are being conducted from or on their soil, but the United States should begin the process of weaning those governments from the cloak of secrecy.”  Yes, that is precisely what is necessary in the long run, if there’s to be any hope of significant increases in transparency.  Jeff and John would undoubtedly agree, however, that such “weaning” is a very tall order, and the means of doing it are not at all clear, or simple.  Rightly or wrongly, justifiably or not, foreign officials sometimes insist that it is dangerous or impossible for them to permit any official acknowledgement of cooperation with a foreign state using force on their territory.  I suspect that it will be very difficult to persuade them to the contrary.

Moreover, and of more immediate concern, what are we to do until such time as cooperating governments are “weaned” from their insistence on a “cloak of secrecy”–i.e., in cases where the officials of host state continue to offer their consent and/or cooperation only on the condition of no official U.S. acknowledgement?  Should the U.S. simply go ahead and use force transparently without the consent of the host country–with all of the costs to sovereignty norms and diplomatic peace that such unilateral action would entail?  What if such acknowledgment would risk losing the critical cooperation of the host state in our counterterrorism operations?

I raise these uneasy questions not because I disagree with the Task Force’s very important aspiration for greater transparency, but only to emphasize how difficult it will be to alter state practices such that the United States would, “as a matter of general policy, refrain from promising foreign governments that it will keep secret its own use of lethal force.”  And precisely because it will be so difficult, and so challenging, to achieve such a state of affairs, it is critical that thoughtful people, inside and outside the government, must begin to grapple with the question of how to “wean” other government leaders “from the cloak of secrecy”:  It is not enough for critics of the United States practices simply to inveigh abstractly against secrecy and nonacknowledgement, without serious attention to the sources of those practices and how they might be changed over time.  The Stimson Report is an important first step . . . but there’s much work to be done.

* * * *

The Stimson Report is not a technical legal document, and it does not focus primarily on the legality of the U.S. drone program–with the notable exception that the task force pointedly “disagree[s] with those critics who have declared that US targeted killings are ‘illegal'” (p.34).  The Report does, however, include at least two mischaracterizations of the law that are worth flagging and clarifying here–involving (i) the relationship between the military and covert action; and (ii) the scope of “associated forces” against which the Executive may use lethal force pursuant to the 2001 Authorization for Use of Military Force (AUMF).  These legal mischaracterizations do not go to the heart of the report’s analysis and recommendations.  Even so, they are mistakes that appear quite frequently in the public debate; and it would be unfortunate if the Stimson Report contributed to the pervasive misunderstandings.

1.  Covert and Unacknowledged Activity by the Military.

The Report says this about the military’s authority to engage in covert action and other forms of secret or unacknowledged activities (p.13):  “By law, the US military is prohibited from engaging in covert action.  It is important to emphasize, however, that the military is not prohibited from engaging in secret, unacknowledged activities that are intended to remain unacknowledged, as long as these activities constitute ‘traditional military activities’ under US law.”

This is mistaken in two respects.  First, the military can engage in “covert action.”  As I discussed in further detail in this post, the covert action statute applies, by its terms, to all “departments, agencies, or entities of the United States Government.”  Thus, if an operation falls within the covert action definition, it is subject to the rules of the statute–it must be subject to a presidential finding and reported to the intelligence committees–regardless of which agencies are involved, including DOD.  To be sure, DOD has rarely, if ever, engaged in activities that are “covert” as a matter of law–but the law does not preclude it from doing so.  Case in point:  Navy SEALs were involved in “Neptune Spear,” the operation to capture or kill Osama bin Laden.  According to then-CIA Director Panetta in an interview with Jim Lehrer, that operation was a covert action, at least at the outset.  If so, there was nothing unlawful about the involvement of U.S. armed forces in the operation.

Second, the report’s passage quoted above also implies that the military would be “prohibited from engaging in secret, unacknowledged activities that are intended to remain unacknowledged” in cases where such activities did not constitute “traditional military activities” under the law.  That’s not right:  The military can lawfully engage in operations that are intended to remain unacknowledged whether or not they are “traditional military activities” under the law.  As I elaborate in my earlier post, whether a DOD operation consists of “traditional military activities” can, indeed, be an important question, but for a different reason:  It determines not whether the unacknowledged operation is lawful, but whether it is subject to the requirements and constraints of the covert action statute.  If the DOD operation is “TMA,” then it is exempt from the findings and oversight requirements of 50 U.S.C. section 3093, the covert action statute, even if it would otherwise satisfy the definition of “covert action.”  If it is not “TMA,” then it must conform to section 3093.

Accordingly, this additional passage in the Stimson Report (p.39) gets the law right (or at least it would do so with one emendation, noted in brackets and in boldface), and makes the point that is most important for purposes of the Report’s oversight recommendations:

From the perspective of laypersons, both the CIA and the military can thus engage in covert strikes in the colloquial sense of the term.  But while covert action undertaken by the CIA requires a presidential finding and notification — even if after the fact — of the congressional intelligence committees, secret, unacknowledged strikes carried out by the US military [that are “traditional military activities”] need not be reported to the intelligence committees, as the military reports instead to the House and Senate Armed Services committees.

The Task Force should correct the Report’s other passages that leave a misimpression about the military’s relationship to covert and other secret operations.

2.  Associated Forces Under the AUMF.

The Report says at page 34 that the Obama administration has construed the 2001 AUMF “to authorize the use of force against not only al-Qaida and the Taliban, but against any organizations or persons it views as ‘associated forces’ of al-Qaida, even if those ‘associated’ groups or individuals had no connection to the 9/11 attacks and pose no direct threat to the United States.  On this apparent basis, the administration has justified targeted strikes against al-Shabab militants in Somalia . . . .”

I’m not sure why the report’s authors assume that a group would be deemed an associated force for AUMF purposes if it did not pose a “direct threat” to the United States.  As I’ve explained in greater detail here, the government (correctly) does not consider any and all terrorist groups that are in any way related to al Qaeda as “associated forces” against which the AUMF authorizes the use of force.  The government’s view is that, in order to fall within the statute as such a cobelligerent force, an organization must be “an organized, armed group that . . . is a co-belligerent with al Qaeda in hostilities against the United States or its coalition partners.”*  As DOD General Counsel Stephen Preston testified last month–consistent with the President’s recent War Powers reports–al Qaeda in the Arabian Peninsula (AQAP), an organization that does pose a direct threat to the U.S., is the only “associated force” against which the U.S. currently takes direct action (capture or lethal operations) outside the Afghan theater.

More specifically, and contrary to the quotation from the Stimson Report, Preston confirmed that the U.S. has used force against certain al-Shabaab militants in Somalia not because it has deemed al-Shabaab an “associated force,” but instead because those  “limited number of targets” have “been determined to be part of al-Qa’ida” itself.

___________

* I suppose that, in theory, the Administration might deem an organization to be an “associated force” if it has joined al Qaeda in hostilities against a U.S. “coalition partner” but not against the U.S. itself.  (For what it’s worth, I have some doubts about whether such a case would be covered by the AUMF:  It would likely be a very fact-intensive question, depending upon whether the hostilties in questions could fairly be deemed part of the armed conflict between the U.S. and al Qaeda.)  But even if it might be said that there were no “direct threat” to the U.S. in such a hypothetical scenario, I’m skeptical that we’ll ever see such a case. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).