Did USAID engage in “covert action” in Cuba without proper domestic legal authority?

Lost in last week’s wave of news coverage on Cuba was an important Associated Press story on reportedly clandestine practices conducted by the U.S. Agency for International Development (USAID) in the island state. The issue is much broader and different than relations with Cuba—it raises questions about the legality of USAID’s recent actions and is not overtaken by the events of normalization. The issue is whether a spate of USAID programs under the Obama administration should have been classified as “covert action”—and thus required a Presidential Finding for proper legal authorization.

The programs have been extraordinarily well documented in a series of AP reports. One involved the clandestine creation of a “Cuban Twitter” platform. One involved sending Latin American youths undercover to set up front organizations such as an HIV/AIDS workshop. One involved secretly recruiting Cuban rappers to mobilize their young audiences against the government.

I have studied USAID’s statements made in light of the AP revelations. Unless USAID has a better explanation than what it has stated publicly and before Congress, these programs surely meet the statutory definition of “covert action.” (I am quoted in last week’s AP report saying as much.)

Here’s the statutory definition of covert action:

“… an activity or activities of the United States Government 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” (emphasis added).

The USAID programs were apparently designed to influence political conditions in Cuba and not to publicly acknowledge the role of the US government. One would think such programs would be conducted by a US intelligence agency—if conducted at all. And, indeed, the programs’ clumsiness makes them seem like episodes of Keystone Cops. Sen. Patrick Leahy (D-Vt.) has called them “incompetent and reckless,” and Sen. Jeff Flake (R-Ariz.) has called them “boneheaded” and “downright irresponsible.”

But the question is not only whether these programs were wise policy. The programs put peoples’ lives at risk and jeopardized health and development work in other countries. A critical question is whether they acquired the proper legal authority to do so.

Last week’s AP report states that “USAID’s inspector general is reviewing whether the agency’s recent Cuba programs disclosed by the AP were proper.”

Watch this space as that process develops. 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016) Follow him on Twitter @rgoodlaw.