Rep. Schiff Op-Ed in NYT: moving drone program from CIA to JSOC would result in more transparency — But is he right?

Today, Representative Adam Schiff has an opinion piece in the New York Times where he advocates that Congress should allow the President to move the drone program from the CIA to JSOC.  In the op-ed, the Congressman argues:

Congress needs to get out of the way and allow the president to move the drone program to the Joint Special Operations Command (J.S.O.C.) at the Pentagon. Though it may appear that we’d just be shuffling the chairs, this change would have two benefits: It would allow our other agencies to focus on their core mission of intelligence gathering, rather than paramilitary activities, and it would enable us to be more public about the successes and failures of the drone program, since such operations would no longer be covert.

But would such a move really “enable us to to be more public about the successes and failures of the drone program” because the operations “would no longer be covert?”  The answer: no, not necessarily.

As Marty recently pointed out (in response to an AP story on the Yemen “wedding strike” allegedly by the CIA):

The A.P. account of the Yemen strike asserts that U.S. law requires nonacknowledgement when the CIA is involved. That is wrong. There is no statute, or any other domestic law, that provides that “military strikes can be acknowledged, but . . . CIA operations cannot.

Indeed, it is not the law that determines whether the U.S. does or does not acknowledge strikes, or any other actions overseas. U.S. law generally does not require or prohibit nonacknowledgement at all. Rather, as explained above, nonacknowledgement is typically a function of diplomatic and foreign policy considerations. (emphasis in original)

You’ll need to read Marty’s full post (if you haven’t already) for his full analysis, but the post walks us through the law related to covert action (50 U.S.C. section 413b(e)) and nonacknowledgment to show two points relevant here:

First:

It is often assumed that a particular activity must remain unacknowledged because the President has signed a covert action finding authorizing that activity.  But that gets things backwards.  Rather, the President must sign a covert action finding if–that is, because–he has already determined that U.S. involvement in an activity to influence political, economic, or military conditions abroad should or must be unacknowledged–a determination that, as noted above, is a function of diplomacy and policy, not domestic law.

And second, aside from “traditional military activities”:

. . . the legal rules themselves do not distinguish between agencies.  The covert action statute applies, by its terms, to all “departments, agencies, or entities of the United States Government.”  Thus, if an action 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.

More generally, as far as the law is concerned, both the CIA and DOD can engage in activities that are not officially acknowledged; and likewise, both can engage in overseas activities that are officially acknowledged,

The short story: if the strike in Yemen was done by the U.S. and had a determination been made that U.S. involvement could not be acknowledged, switching the authority to DOD would do nothing to change the nonacknowledgement problem.  And remember, as Jack Goldsmith has pointed out on Lawfare, it’s not as if the U.S. government is regularly acknowledge the facts and details of DOD drone strikes in Yemen.

There may be many good reasons for why the U.S. government should shift the drone program functions from the CIA to the DOD.  But assuming that such a shift will necessarily solve the nonacknowledgment problem is wrong.  It is a separate issue that must be addressed by changing the practices that demand nonacknowledgement. 

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Thomas Earnest

Former Managing Editor of Just Security (2013-14) Follow him on Twitter (@thomasdearnest).