Should (and can) the CIA use non-covert force against ISIL in Iraq and Syria?

Ken Delanian of NBC has an important new story (written and video) about an apparent interbranch dispute concerning whether the CIA should be authorized to use force against ISIL in Iraq and Syria. For purposes of this post, I will assume that everything in Delanian’s story is accurate, although of course that might not be the case (and I have no personal knowledge one way or the other).

As Delanian explains it, in this context, as in many others, the use of drones to target enemy forces has increasingly become an integrated DoD/CIA operation, in which CIA aircraft provide much of the intelligence but the ultimate decision to use force is made within the ordinary DoD chain of command, and DoD personnel actually pull the proverbial “trigger,” using DoD aircraft. On occasion, however, a CIA drone will identify a target but there isn’t time for DoD aircraft to arrive at the location, and therefore the strike does not happen. In those cases, why doesn’t the CIA itself strike?

The Senate Intelligence Committee leaders, Senators Burr and Feinstein, apparently believe the CIA should be authorized to strike in such cases, and have written the President to urge him to authorize such strikes. The President, however, will not do so, according to Delanian, partly because the Administration thinks the problem is overstated (“Administration officials dispute that the missed opportunities had any real impact. In one case, the militant leaders who were missed were later killed in an air strike, officials said.”), but mostly because the President insists upon transparency — at a minimum, the ability to acknowledge the U.S. involvement in any such strike, and to describe the legal authority. According to NSC spokesperson Ned Price, “[t]he President has been clear that we must be more transparent about both the basis of our counter-terrorism actions and the manner in which they are carried out. As part of this commitment to transparency, the President has said that he will increasingly turn to our military to provide information to the public about our efforts.”

Delanian adds (without attribution) that one argument reportedly being made “against the CIA conducting strikes in Iraq and Syria is that the effort against ISIS is considered a war, not a covert action.” And that’s right: There is no apparent reason to resort to covert (i.e., unacknowledged) action against ISIL in Iraq and Syria (for instance, nonacknowledgement does not appear to be a condition of Iraqi consent); and, in fact, the U.S. is freely acknowledging its use of force in those nations. So far, so good: The U.S. action is overt, and the President wants to keep it that way, for all sorts of good reasons (transparency, accountability, the absence of justification for nonacknowledgement, etc.). But why does that mean the CIA cannot be the agency that uses such force overtly?

As I’ve explained repeatedly on this blog (see, for example, this post and this one), the Executive’s view is that the CIA is authorized, under the “fifth function” provision of the National Security Act, to engage in overt (i.e., acknowledged) actions; and the 2001 and 2002 AUMFs arguably provide authority for the President to employ both the CIA and DoD to use force against ISIL, in particular, in conformity with the laws of war.

Yet apparently at least some executive officials and/or members of the congressional oversight committees continue to insist that the CIA is barred from engaging in non-covert action. It’s not obvious why that is the case. Perhaps these officials disagree that the CIA has any affirmative authority to use force overtly (but in that case, what would be the agency’s authority to use force covertly?). More likely, these officials believe that there is either some sort of express or implied limitation on overt action contained in classified authorization and/or appropriations acts relating to the CIA, or else a quasi-legal, longstanding norm to that effect that governs the agency’s relationship with its oversight committees.

If that is correct — if the source of the CIA’s purported inability to engage in overt action is a classified legal condition or a secret, informal inter-branch understanding — then Senators Burr and Feinstein presumably could solve the problem they’re complaining about by simply having Congress (or the Intel Committees) eliminate that constraint. Indeed, that would probably be a very good idea, in any event, because the “CIA can only engage in covert action” understanding (or classified law) is frequently cited as a significant barrier to greater transparency sought by the President.

To be sure, if Congress were to make clear that the CIA can lawfully engage in overt activities, there might still be other reasons why the President would prefer not to authorize the agency to use force in Iraq and Syria (or to do so only as matter of last resort) — for example, that DoD has a greater and more well-established understanding of, and experience with, how to apply the laws of war, including the requirements of distinction and proportionality. Even so, transparency and acknowledgement concerns would no longer be part of the equation.

One final, related point: Delanian reports that Burr and Feinstein’s “thinking” is that “armed CIA drones could come under temporary military authority when they launch Hellfire missiles at a target. In that scenario, a military commander would order the strike, and the CIA drone would carry it out.” In other words, the aircraft would belong to the CIA, but DoD personnel would always be present during their operation, and those personnel, rather than CIA officials, would make the decision whether to use force, and would launch the attacks. Delanian does not say why this apparent solution is not already being implemented and, if not, what the legal or operational objections to it might be. 

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Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).