The Defense Department Goes Clandestine

by Jens David Ohlin

Recent news reports indicate that the Defense Department is negotiating with members of Congress over plans to augment its Defense Intelligence Agency with a Defense Clandestine Service with about 500 undercover officers. The previous proposal had called for about 1000 officers in the clandestine service, but that proposal was met with substantial criticism.

This is a major development. There are multiple concerns. The first is money — running clandestine operations is not cheap. The second issue is reduplication. The Clandestine Service would be in addition to — and external to — the operations already provided by the CIA and Joint Special Operations Command, though obviously the hope is that there would be some meaningful cooperation between the services.

In the past, there has been much consternation of a blurring between Title 10 and Title 50 activities. Title 10 authorizes military operations conducted by the Defense Department, while Title 50 actions are covert and controlled by the CIA (though could make use of Defense Department assets, as was the case during the Osama Bin Laden raid). The usual occasion for this hand wringing is the increased role of the CIA in paramilitary (or even traditional military) activities. The criticism often heard is that the CIA has strayed far from its original mission as an intelligence agency and is now deploying force in areas of the world where the U.S. is unwilling or unable to publicly acknowledge its use of force.

The current proposal for a Defense Clandestine Service involves the exact opposite. Instead of the CIA getting involved in military activities, this time it is the Defense Department getting involved in intelligence activities. And while it has always been the case that the Defense Department has some intelligence capabilities (which is inherent in the process of target selection), the creation of an entire clandestine service indicates that the Defense Department wants to increase its capabilities in this area. Is this needed or is it a case of rival bureaucracies between the Pentagon and Langley?

One important note. The proposed Service would be clandestine in nature, but presumably not covert. That is an important distinction here. Its operatives would remain acknowledged as agents of the United States, and would presumably remain in uniform as military personnel (although the exact details are not clear). If the operatives were covert and not in uniform, this would pose a substantial threat to the culture and ethos of the uniformed military services — thankfully this is not part of the proposal as I understand it.  However, their operations will still be clandestine (secret) because their true missions would not be publicly disclosed. Although this mitigates some potential anxiety, it does not resolve all of it. Even an increased DoD presence in clandestine operations suggests that the federal government does not have a clear sense of the right dividing line between CIA and military responsibilities.

 

http://opiniojuris.org/2014/11/04/defense-department-goes-clandestine/

3 Responses

  1. Jens,

    As always, very interesting. Thanks for posting.

    However, you have me somewhat puzzled. You write that “while it has always been the case that the Defense Department has some intelligence capabilities”, but also “an increased DoD presence in clandestine operations suggests that the federal government does not have a clear sense of the right dividing line between CIA and military responsibilities”.

    Once it is acknowledged that the DoD needs some clandestine capability, I would be interested in your reasons why one *policy* position (a smaller clandestine service) is to be preferred over another policy position (A larger clandestine service). Is it simply the points in your 2nd paragraph (money and duplication) or am I missing some nuances of Us domestic law?

  2. I have to say, I am struggling with the concept of these agents being ‘undercover’, but ‘uniformed’. Does this mean wearing a uniform but avoiding detection, wearing camouflage but not insignia (or only wearing it when required by LOAC), wearing enemy uniforms etc (similar LOAC issue), etc?

  3. Thanks for bringing this news article to our attention, I hadn’t seen it yet. If I may suggest a couple of points that I think suggest this is less of a major development than perhaps Prof. Ohlin does.

    First, this is not as future-tense an event as the article suggests. According to news reports from last year, the DCS already exists. It is merely the eventual size that appears to be under discussion. See for example this Wired article from last year http://www.wired.com/2013/05/pentagon-den-of-spies/

    Second, the statement “while it has always been the case that the Defense Department has some intelligence capabilities (which is inherent in the process of target selection)” seems to be an understatement of the DoD’s role in the intelligence community that makes it seem like this is a significant expansion. In fact a large portion of the IC falls within the DoD. Each of the military services have an intelligence arm, plus many of the intelligence agencies are DoD organizations, including the DIA, NGA, and NSA. The Military Intelligence Budget was reportedly over $17 billion in FY14. (The Secrecy News Blog has a copy of the just released Intelligence Budget statement for those interested). My only point here, is that the DoD has historically has significant intelligence resources, including in the realm of Human Intelligence. An argument that the DoD “is getting involved” in intelligence activities is probably late at this point. No doubt this is not the exact point Prof. Ohlin was trying to make, which I read to be more about the reasonableness of agency redundancy, but did seem worth pointing out as context.

    As to the wearing of uniforms and the idea of being undercover mentioned in one of the other comments, there are probably lots of different permutations and possibilities involving time and place to discuss here, but one is simply that the DoD and its Intel agencies employee both uniformed military members and civilian government employees.

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