Once again: “Which agency?” and “How secret?” are separate and independent questions

Karen DeYoung has a story in the Post this morning about an ongoing debate on the Hill concerning whether the CIA “should be in the drone business at all, or if such lethal strikes are best left to the military.” The article canvasses various arguments for and against both policy views. One of the purported reasons for transferring authority appears in this unadorned, one-sentence paragraph in the middle of the story:

The administration has said that turning the program over to the military would allow it to be more transparent than it can be about CIA drone strikes, which are considered covert actions that can only be disclosed with presidential permission.

DeYoung does not say who the source is for this “administration has said” point. I’d be very surprised if anyone in the administration has “said” any such thing officially, or publicly. More importantly, whether or not anyone in the administration has said it to DeYoung unofficially, the statement is misleading, as I’ve tried to explain repeatedly–in greatest detail here.

Short version: It is, of course, true that if the CIA has engaged in drone strikes as part of a presidentially authorized “covert action,” such activities cannot be disclosed by government officials absent presidential permission. That’s because what it means to be “covert” is that the President has already determined that the involvement of the United States should not be acknowledged, for one reason or another (perhaps because the U.S. promised such nonacknowledgement of its responsibility as a condition of securing cooperation or consent from a host country–a practice that I discuss in more detail here).

Such nonacknowledgement is not, however, a function of the separate presidential choice of which agency should run the program. For one thing, the Department of Defense can, and does, engage in nontransparent uses of force–those that cannot be disclosed without the “permission” of the President (or his appointee, the Secretary of Defense). Conversely, and as the WaPo statement itself implies at the end, if there is a CIA “program,” “turning [it] over to the military” is unnecessary for greater transparency: presidential authorization for disclosure would be sufficient to permit whatever level of transparency the President wishes. Indeed, the President even could, at the outset of an operation, authorize the CIA to engage in “overt” activities in which the involvement of the U.S., and of the agency, is fully or partially acknowledged and officially discussed, as the President sees fit (assuming, of course, that there is a statutory or constitutional source of authority for such activities apart from the covert action statute itself, as the CIA General Counsel has testified there would be).

All of which is to say that the question of which agencies should be involved in any particular use of of force is an important one, and there might be various arguments pro and con about whether to “transfer” such authority; but that decision is distinct, and independent, from the question of how transparent the government can or should be about its use of drones.*

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* It is conceivable, I suppose, that a particular host country might consent to acknowledged DOD operations within its territory, but still insist that U.S. involvement be officially unacknowledged when the CIA is acting. If so, and if the President does wish to acknowledge and make more transparent the U.S. use of force in that nation while still agreeing to, and abiding by, the host state’s selective conditions for consent/cooperation, then that would, indeed, be a reason to opt for DOD activities in that country. I have not seen any published reports, however, suggesting that another nation has insisted upon any such unusual, “selective” nonacknowledgement condition. 

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).