A Response to Bobby Chesney — Part I

My friend Bobby Chesney has responded at Lawfare to my previous post arguing that Title 50 does not provide the CIA with a public-authority justification to kill Americans overseas. He disagrees with both of the limits on presidential authority to authorise covert action I discussed. I will address the Article II question in a separate post; in this post I want to discuss the “traditional military activity” (TMA) exception to Title 50’s definition of “covert action.” Here is what Bobby writes:

CIA Drone Strikes Don’t Qualify as TMA: As an initial matter, I think one part of his argument depends on a mistaken assumption regarding the meaning of TMA, and that drone strikes do indeed constitute covert action within the meaning of Title 50. The TMA exception to covert action has a complicated and often-misunderstood history, which I recount in detail in this paper (pp. 592-601 especially). The concept was the subject of extensive negotiations between the White House and Congress, ultimately resulting in the following agreement. An activity that otherwise would qualify as covert action would instead count as TMA, thus avoiding the requirement of a written presidential finding and reporting to SSCI and HPSCI, if the following conditions were met.

The operation:

1) was commanded and executed by military personnel, and

2) took place in a context in which overt hostilities either were

(a) ongoing, or

(b) “anticipated (meaning approval has been given by the National Command Authorities for [i] the activities and for [ii] operational planning for hostilities).”

The CIA drone strike program as a general matter almost certainly does not satisfy this test, especially the first prong. This is why it has been long considered by both the Bush and Obama administrations to be covert action, not TMA. If the covert-action statute is capable of conferring the benefits of the public-authority justification, then, it does so here.

I think this response elides the difference between two different situations: (1) where the military wants to use force covertly against al-Qaeda; and (2) where the CIA wants to use force covertly against al-Qaeda. As Bobby’s article brilliantly explains, the TMA language was included in Title 50 because neither President Bush nor the military wanted a presidential finding — with its attendant reporting requirements — to be required every time the military engaged in a covert action. They wanted, in other words, the military to have the right to covertly engage in its traditional warfighting activities without having to acknowledge it was doing so. After much negotiation, Congress ultimately agreed to carve out a category of military actions that would not qualify as “covert actions” for purposes of Title 50, even when not acknowledged: namely, actions that satisfied the two requirements Bobby quotes. The TMA exception thus permits the military to use force covertly against al-Qaeda without a presidential finding as long as the action in question is commanded and executed by the military (check) and takes place in the context of ongoing hostilities (check).

The TMA functions very differently in the context of covert action by the CIA. There is no question that the military is authorised to engage in the kind of activities against al-Qaeda that, when done covertly, may fall under 50 USC 3093. The military is always authorised to use force against enemy combatants in an armed conflict; the AUMF is simply the latest example of such authorisation. The CIA, however, is in a completely different situation. For all the reasons I discussed in an earlier post, the AUMF does not authorise the CIA to use force against al-Qaeda at all. So the primary question is not whether the CIA can use force against al-Qaeda covertly, but where the CIA gets its authority to use force against al-Qaeda in the first place.

The most obvious answer is, of course, 50 USC 3093. As I noted in my previous post, that section of the US Code gives the President the power to authorise “a covert action by departments, agencies, or entities of the United States Government” that he determines “is necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States.” There is no question, then, that the President can use section 3093 to authorise the CIA to engage in covert action against al-Qaeda.

But not any kind of covert action. Only actions that do, in fact, qualify as “covert action” for purposes of 50 USC 3093. And paragraph (e) specifically states that “traditional… military activities” do not qualify. 50 USC 3093 thus does not empower the President to authorise the CIA to covertly engage in “traditional… military activities” against al-Qaeda. And is there any doubt that the use of lethal force against an enemy combatant in an armed conflict — American or non-American — is a traditional military activity?

Indeed, Bobby seems to recognise the problem with relying on 50 USC 3093(e) for the CIA’s use of force against al-Qaeda. Hence his invocation of the “fifth function”:

Covert Action Is Not the Only Option for CIA Under Title 50: Another point to bear in mind is that Title 50’s enumeration of CIA functions is not limited to covert action. It includes a sweeping authority to perform “other functions and duties related to intelligence,” generally known as the “fifth function.” This generic language for decades was the statutory foundation for covert action, of course, but it is not necessarily coextensive with the covert action category. By its terms, it could encompass CIA operational activity that for whatever reason did not qualify as covert action as later statutes have defined it.

I agree that the “fifth function” represents another possible source of the CIA’s authority to engage in covert action against al-Qaeda. But I do not see how that fifth function could provide the CIA with the authority to use lethal force against al-Qaeda. Here is the text of 50 USC 3036(d), which codifies the “fifth function” (emphasis mine):

The Director of the Central Intelligence Agency shall —

(1) collect intelligence through human sources and by other appropriate means, except that the Director of the Central Intelligence Agency shall have no police, subpoena, or law enforcement powers or internal security functions;

(2) correlate and evaluate intelligence related to the national security and provide appropriate dissemination of such intelligence;

(3) provide overall direction for and coordination of the collection of national intelligence outside the United States through human sources by elements of the intelligence community authorized to undertake such collection and, in coordination with other departments, agencies, or elements of the United States Government which are authorized to undertake such collection, ensure that the most effective use is made of resources and that appropriate account is taken of the risks to the United States and those involved in such collection; and

(4) perform such other functions and duties related to intelligence affecting the national security as the President or the Director of National Intelligence may direct.

Bobby relies on paragraph four’s “other functions and duties relating to intelligence” language. The key word in that paragraph, though, is intelligence: the use of lethal force is many things, but it is not “intelligence.” Nor is there any reason to believe that “intelligence” in 50 USC 3036(d) means something other than its ordinary meaning; indeed, the other paragraphs rule such an interpretation out — ejusdem generis. As a result, section 3036(d) cannot provide the CIA with the authority to use lethal force against al-Qaeda. Once again, therefore, we have to look elsewhere for the source of that authority. Bobby’s other suggestion — Article II — will be the subject of my next post.

NOTE: Having thought about the matter more, I no longer believe that 50 USC 3093 empowers the President to authorise covert action. Instead, section 3093 simply requires presidential findings for covert actions and prohibits findings that authorise covert actions that either (1) violate the Constitution or a federal statute, or (2) are intended to influence United States political processes, public opinion, policies, or media. The exceptions to the definition of “covert action” in section 3093 — and I think this is what Bobby was getting at in the first block quote above — then exclude certain kinds of clandestine activities from the category of “covert action” that requires a presidential finding. In other words, the military can clandestinely engage in traditional military activities without a finding, while the CIA can clandestinely engage in “activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities” without one. Only non-traditional activities (such as the CIA using lethal force overseas!) require a presidential finding — which makes sense.

That interpretation of 50 USC 3093, of course, leaves open the question of where the CIA gets the authority to covertly use force against al-Qaeda. On the contrary, in terms of congressional authorization, the interpretation puts even more weight on the “fifth function,” because that provision — 50 USC 3036(d) — appears to be the only provision in the US Code that authorises the CIA to engage in covert action. (Indeed, Bobby notes in his post that “[t]his generic language for decades was the statutory foundation for covert action.”)  But again, it is difficult to read s 3036(d) as authorising the use of lethal force against enemy combatants in an armed conflict.