DOD or CIA in Yemen?

by Kenneth Anderson

The Wall Street Journal national security reporting team, followed closely by the Washington Post and the AP, have been reporting in the last couple of days on the CIA being tasked to carry out an expanded Predator drone targeted killing program in Yemen.  I’ve been meaning to blog on this, following on Deborah’s post below discussing the AP story, but meanwhile Robert Chesney poses the following question over at the Lawfare blog (where you can find links to these articles and an expanded discussion):

[W]hat really struck me about the stories was their common reference to a particular legal argument.  Here is Siobhan Gorman and Adam Entous in the Wall Street Journal:

The U.S. military strikes have been conducted with the permission of the Yemeni government. The CIA operates under different legal restrictions, giving the administration a freer hand to carry out strikes even if Yemeni President Ali Abdullah Saleh, now receiving medical treatment in Saudi Arabia, reverses his past approval of military strikes or cedes power to a government opposed to them.

And here’s Greg Miller in the Washington Post:

Because it operates under different legal authorities than the military, the CIA may have greater latitude to carry out strikes if the political climate shifts in Yemen and cooperation with American forces is diminished or cut off.

And here’s Mark Mazzetti in the N.Y. Times:

By putting the operations under C.I.A. control, they could be carried out as a “covert action,” which can be undertaken without the support of the host government.

The common theme is that the CIA can conduct strikes contrary to or at least absent Yemen’s permission, whereas JSOC cannot.  I can imagine any number of policy reasons why this might be so, why it might be the preferred course.  But in each piece the claim is that this is a matter of legal obligation, not just policy preference.

And so here is my question for readers: What is the nature of the legal obligation supposedly at work here?Obviously covert action does not require host-nation consent.  That’s not the curious part here.  The curious part is the suggestion that DOD activity does require host nation consent as a matter of law.  What law so requires?

The thing that jumps out as potentially relevant here is that, absent host nation consent, a use of force on that state’s territory presumptively violates its sovereignty under UN Charter Article 2(4).  So perhaps the idea is that this is ok for the CIA to do via a covert action, but not ok for DOD to do.  But is this really a dispositive concern here?  Article 2(4) is not ironclad.  An objection from Yemen under Article 2(4) would fail in the face of a U.S. Article 51 self-defense claim insofar as Yemen is unable or unwilling to use its authority to address the threat posed by AQAP itself.  So long as one accepts that such unable/unwilling arguments can be made, the Yemen scenario seems like a very plausible place to invoke it.  If that’s right, then DOD would not face an Article 2(4) hurdle in acting without Yemen’s consent.

Could it be that there are facts available internally that make the unable/unwilling argument implausible as to Yemen after all?  I’m skeptical.  Could it be instead that someone has concluded that DOD in particular simply may not avail itself of the unable/unwilling argument, as a matter of law?  I’m not aware of such a law.  Might it all merely reflect a high level of discomfort with the unwilling-and-unable test as a legitimate concept?  Is it about something else entirely? Or is it all just a question of policy preference, not properly described as a legal distinction after all?  Reader input is most welcome, whether you actually know or are just guessing!

Before turning to the legal question, let me say first that one of the most important features of the WSJ and WaPo reporting was the observation that apparently one of the reasons the CIA was being tasked with the mission was because of its experience in Pakistan not merely in running drones — which, after all, are often actually piloted by USAF — but rather in the utterly crucial intelligence-gathering operations on the ground that make possible what the drones do with missiles.  The success of the drone program in counterterrorism operations in Pakistan has come about, so I have been told, on account of the CIA managing over the past several years to set up its own ground-level intelligence gathering operations in both Afghanistan and Pakistan — independent of Pakistan’s ISI.  That independence has been crucial, for obvious reasons (to readers of The Onion, anyway) and apparently that ability to independently determine targets, not just independently strike at them, has greatly irritated Pakistan’s military.

This illustrates a crucial feature about targeted killing through drone warfare or, for that matter, using human teams.  It is not solely a technology, the technology of drones, but instead equally or more dependent on an extraordinary intelligence effort at the ground level in order to identify targets.  Drones, in their surveillance role, can be useful, but nothing substitutes for the ground level intelligence network.  In that sense, the fear that critics sometimes have (that drones are a kind of weird mixture of globally ubiquitous surveillance-and-attack system that can strike anywhere around the world and at the same time a kind of flock of Predator ronin, restlessly seeking out targets anywhere, Paris France or Paris Texas) of the technology is misplaced, as I have written in this draft essay on SSRN.  Drone warfare as a technology of targeted killing in counterterrorism is global in the sense that the drones can be piloted globally — but the most important intelligence is local and ground-level.  If they are to be truly useful as targeted killing platforms, they must be tethered to local intelligence-gathering.

But now a brief thought on Bobby’s question.  I wonder whether the journalists here actually do mean a truly legal distinction, as distinguished from an operational policy position that is being expressed as an internal legal policy position.  I mean by that, an alterable and not necessarily absolutely held interpretation of an internal legal position, including interpretations of existing regulations and executive orders, within the intelligence community.  That would not put it into “law” in the sense of deep interpretations of the UN Charter or international self-defense, etc.  The legal positions might simply be existing secret executive branch legal opinions, whether of the Office of Legal Counsel or others, concerning existing executive branch legal policies.

That is, I find it hard to imagine that there is a difference of opinion between DOD and CIA on the scope of what the President can order in the way of action by one agency or the other with regards to whether Yemen is unwilling or unable to prevent the use of its territory by non-state actor terrorist groups.  That has been US government policy stretching at least back to the Reagan administration.  I would find it hard to imagine that there could be a legal view that it is lawful for the President to order the CIA to engage in armed covert action in Yemen without its consent — but that this would be a problem for the US armed forces.  Among other things, why have a military if not to at times engage in military action on the territory of another sovereign without its consent?  And as to attacking non-state actors, we’ve been doing that for a long time, in multiple places, including using DOD, so I can’t really believe that is at issue.

So my outsider’s guess is that this has nothing to do with international law jus ad bellum or even domestic law as such, and is more likely that there is a division of labor being established around operational capabilities.  Those include, as the articles mention, the view that the CIA is better equipped to set up a program integrated with ground level intelligence gathering crucial for success.  The legal aspect of this, I would guess, would be in some set of secret executive orders (the so-called “exords”) directed to DOD that are both “law” in the sense that these are legally binding and limiting instructions, but more in line with operational orders, revisable by the President and not “law” in the sense of international law on consent.

I would guess, as well, that part of the issue here does indeed lie with “covert” as distinguished from “clandestine.” Meaning, I would guess that a reason why the CIA is being tasked with this is partly in order to set up a genuinely covert intelligence gathering operation on the ground, in which the agents are covert and deniable should the US government wish to treat it that way.  DOD personnel, by contrast, including special ops teams, might operate clandestinely — but if taken prisoner, will be acknowledged by the US government.  I would guess, purely as an outsider, that the nature of the intelligence-gathering contemplates the former rather than the latter, and that this is a legal issue within the executive branch.

Finally, however, looking forward.  I think this new operation, following on the Pakistan operations, raises an important question as to whether we need a conceptually new category in US domestic law — a new legal category in Title 50 of “deniable” alongside the existing category of (genuinely) “covert.”  (I’ll be speaking tomorrow at a UVA National Security Law Program conference on this topic, and it’s one I plan to raise with experts there.)

http://opiniojuris.org/2011/06/15/dod-or-cia-in-yemen/

12 Responses

  1. For what it is worth, I think the media reports have misidentified the reason for the decision.  I agree with Bobby that this may simply reflect an internal administration policy that is not legally required.  In other words, covert action is not legally required in the absence of Yemeni government consent, but it may be the best policy decision not to acknowledge activities conducted without such consent.

    I also want to clarify a point Ken raised.  As we have discussed here before, DoD involvement in an operation does not necessarily mean the operation is clandestine and not covert.  DoD and other agencies may be tasked to participate in covert operations.

    “Each [presidential] finding [authorizing covert action] shall specify each department, agency, or entity of the United States Government authorized to fund or otherwise participate in any significant way in such action. Any employee, contractor, or contract agent of a department, agency, or entity of the United States Government other than the Central Intelligence Agency directed to participate in any way in a covert action shall be subject either to the policies and regulations of the Central Intelligence Agency, or to written policies or regulations adopted by such department, agency, or entity, to govern such participation.”  50 U.S.C. 413b(a)(3).

    The most logical domestic, legal reason for resorting to covert action authority might be to expand the lethal and non-lethal “target list” beyond those posing a threat to the U.S. and therefore arguably within the realm of Art. II national self-defense or the AUMF.  Recall that covert action is defined as

    “…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…” 50 U.S.C. 413b(e)

    In other words, covert action gives the executive separate, domestic legal authority to interfere in the purely internal affairs of a foreign state in ways that might be otherwise contrary to domestic and/or international law.

  2. Response…
    The U.N. Charter applies regardless whether CIA or DOD pulls the trigger.  If the U.S. is engaged in self-defense targeting of al Qaeda under UN 51, there is no need for consent from Yemen in any event.
    http://ssrn.com/abstract=1520717

  3. “Obviously covert action does not require host-nation consent”

    As noted by Jordan Paust, may I emphasize that, while the CIA may be authorized by American domestic law to engage in covert operations without host-nation consent, under international law it can only do so within the confines of the UN Charter. This means that if the policital climate in Yemen does shift and the country would retract its consent, the United States would only be allowed to continue its strikes, whether executed by the CIA, the DOD or any other state organ, if it can rely on self defence or Security Council authorization, both of which seem unlikely. Otherwise, an action that might be perfectly legal within the domestic legal system of the United States would violate one of the most fundamental norms of public international law, the prohibition on the use of force. Thus, the claim that covert operations do not require host-nation consent may hold true within the national legal order of the United States, but it is not at all “obvious” from an international legal perspective.

  4. I am looking forward to Ashley Deeks paper.  From what I have seen the “unable/unwilling test” is not a legal rule but a rationalization.  Agree with Jordan that the legal rule is the right of self-defense.  Differ in that such action by another state in the host state may also trigger the right of self-defense of the host state.  Did Pakistan have the right to respond on the basis of self-defense to the US forces coming in to get OBL on the basis of self-defense?  I would think so if Pakistan understood it as rising to the level of an Article 51 armed attack.
    Best,
    Ben

  5. Exactly correct, blsd.

    The self-defense issue you mentioned above (and in earlier comments) is a great one, Ben.   It tends to support the view of those who claim that any use of force within the territory of another state, even one directed solely against a non-state actor, is subject to the rules governing international armed conflict because it necessary violates the territorial sovereignty and political independence of the state in which the attack occurs and therefore constitutes armed conflict “between states.”  I am simply uncertain whether state practice and opinio juris necessarily supports this view of things in every case.

  6. Response…
    Ben and John: I would state that Pakistan has no right of “self-defense” against the U.S. because there was no “armed attack” ON Pakistan, just a self-defense action within its territory (which, also, is NOT an attack ON Pakistan’s territory as such).  This is why self-defense targetings of nonstate actors within another state that happen to be engaged in armed attacks from that other state are not attacks on that state and do not trigger a “war” between the states.  This was implcit in the Caroline incident and so many other cases where self-defense was used against nonstate actors — as set forth in my article on Self-Defense Targetings of Non-State Actors.
    Is Article 2(4) really violated?  There is a split on that issue and, in any event, as”blsd” intimates, the main issue involves art. 51 self-defense.

  7. I want to emphasize my use of the “may” John and Jordan.    The Pakistani reaction in slow motion right now does seem to suggest that at least some parts of the Pakistani state are of the view that the OBL operation can be characterized as an armed attack on Pakistan to which the Pakistani military should have responded in self-defense. 

    I am obviously not privy to the internal processes of Pakistan but I could imagine that OBL being able to stay in Abbottabad was part of some very complicated four/ five/n-level game of the Pakistani sovereign for domestic and international purposes.  The OBL operation in this vision would have significantly (as opposed to say only modestly) upset some complicated balancing by the Pakistani state that could be seen as very threatening to regime survival and so would be seen by the Pakistani regime as an armed attack in a way that the Caroline type incident might not have been seen.  This calculation by Pakistan would be unkowbale to the US because Pakistan is playing its n-level game on the US among other sovereigns.

    I am not sure I have been sufficiently clear in this explanation but my point is not so much the outside state’s vision of its self-defense action as much as it is both the outside state’s vision and the host state’s visions of the same operation.  I can see different types of operations on the one hand that are outside state self-defense operations on the one hand and then a host state reaction to those operations that ranges from not being seen as an armed attack on to being seen as an armed attack on triggering right of self-defense which the host state may or may not exercise.  That view is at least three dimensional and in that sense creates some opaqueness but, to me, it better mirrors the state practice for my understanding.

    It reminds me of the Israel/Gaza situations and the proportionality analysis as to appropriate force.  How you value your own people differs from how you value the other side’s people.  I understand those who are saying as an objective matter the rule is this that or the other but it seems the weighing of facts that underlie the conclusion that a rule has been met may differ so significantly between actors because of the place from which they look at the evidence.

    For me this is part of the inherent risk of evaluations such as “unwilling or unable” which are looking from the point of view of the outside state asserting right of self-defense but, almost by definition are likely to be a calculus different from that of the host state.

    Because of this ‘misinterpretation risk” so to speak, I am stuck with the “may”.  I know that may be unsatisfying, but I also think that recognition of that risk puts a premium on communicating by the outside state in ways that speak to the evaluation process of the host state so as to reduce the risk of the host state calculating that its right of self-defense has been triggered. 

    Maybe this is more IR than IL but it is something over which I mull.

    Best,
    Ben

  8. “unkowable” should have been “unknowable”

  9. I would argue that the switch from DOD to CIA covert ops does indeed have something to to with international law jus ad bellum. The driving moment of the US administrations decision might not have been a legal one (as Kenneth pointed out). But the switch from DOD to CIA covert op might be after all legally relevant with regard to the justification of violation of Yemen’s territorial sovereignty:

    As an expression of the principle of prohibition of force Art. 51 (2) requires both disclosure and statement of grounds for an armed attack on foreign territory to be justified. In particular, the use of force has to be immediately reported and substantiated  to the security council. This would include – inter alia – to give information about the identity and location of the terrorists, the selection of targets as well as giving proof of the host-states non-compliance with its duty to prevent terrorist attacks from its territory.

    This burden of explanation and proof is a crucial element of Art. 51, as it prevents both the abuse of the right of self-defense as a pretext  to enforce other interests with military force as well as prematurely action against false targets due to inaccurate fact-finding (“Tall man” incident).

    A covert operation, as now planned in Yemen, would not meet those requirements of Art. 51 and therefor be illegal.

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