Waging War in the Dark

The rise of shadow warfare as a tactic in the fight against al Qaeda and its affiliates has happened rapidly, and largely out of the public eye. For the most part, the CIA’s drone program and other JSOC operations haven’t suffered much public scrutiny because they’re widely perceived as successful, pose less of a risk to U.S. military personnel, and are far less messy and costly than traditional combat.

But the blending of CIA and DoD people in the field poses problems for a nation that has, since World War II, retained an old-fashioned and remarkably unblended view of the roles of the U.S. military and intelligence establishments. Though murky, ambiguous, and outdated, U.S. domestic law does make a distinction between covert action and military activity.

After the Iran-Contra affair, Congress enacted the first statutory definition of covert action in the Intelligence Authorization Act of 1991. That definition remains: “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 …” By law, covert action must be authorized by a written presidential finding, and must be conducted with the knowledge of at least the chairmen and ranking members of the House and Senate intelligence committees – the “Gang of Eight.” By law, the CIA is the only agency authorized to conduct covert actions.

Whether an operation is considered a “covert action” or “traditional military activity” matters immensely. It’s beyond the scope of this article to detail the legal intricacies, which are explored in greater detail by Chesney; by Col. Richard Gross in his U.S. Army War College thesis, “Different Worlds: Unacknowledged Special Operations and Covert Action;” and by Alfred Cummings’s report for the Congressional Research Service, “Covert Action: Legislative Background and Possible Policy Questions.” A key issue for critics is that the administration appears to welcome the legal ambiguity of operations described as CIA-led but executed mostly or entirely by military commandos; some apparently covert operations have, because of the preponderance of military personnel involved, not been conducted with the requisite presidential finding and congressional notification.

The bin Laden raid has served as a touchpoint for this debate. The smartest and most knowledgeable people studying the military today couldn’t – and still don’t – agree on what the bin Laden raid was.

John C. Dehn, a senior fellow at the West Point Center for the Rule of Law at the U.S. Military Academy, looked at it this way: “Some have said that the OBL [Osama bin Laden] raid involved a traditional military activity … Others have said our acknowledgement of it means it was not covert action. The fact of the matter is that there is no way for the CIA to direct this type of mission other than covert action. From what has been reported and from Panetta’s own statements, the OBL and al-Awlaki operations appear to have been under CIA control. Also, I strongly suspect that if it turned out OBL had not been there, we would never have acknowledged our attempt if we could have gotten away with it.”

That experts differ on a basic definition suggests there’s a problem. The old definitions don’t seem to fit any more, in an era of asymmetrical, loosely organized enemies, and this has profound ramifications for the future not only of America’s war apparatus, but for its civil society as well.

Dr. Jennifer Kibbe, associate professor of government at Franklin and Marshall College, said that the dual nature of the bin Laden raid offered equivocation not only for domestic law requirements, but also in terms of international law. “It was described as officially a CIA operation,” she said, “because they were going into Pakistani territory without Pakistan’s okay and knowledge. So you’re in this kind of weird gray zone – if it goes okay, you boast about it, but officially it’s covert action … They [the Pakistanis] get mad if the CIA is in their territory, but it doesn’t cause as many problems as military personnel, right? Countries sort of play this wink, wink/nod, nod game about intelligence agencies. We can do more, with less outrage, if it’s an intelligence operation – but if the U.S. military were to go in, that would be an invasion.” It is this circumstance – a JSOC counterterrorism operation carried out in a country with which the United States is not at war or engaged in poorly defined “hostilities” – that makes it so difficult to draw the boundary between covert action and traditional military activity.

If the bin Laden raid was, by many accounts, an exceptional JSOC operation combining CIA and DoD expertise, it cannot be argued that drone strikes – at least up to the point, near the end of 2011, when they were suspended due to a diplomatic rift with Pakistan – have been anything but routine.

As DeYoung pointed out in her December 2011 article, the “drone program” is actually three different things, operating under a set of overlapping authorities and protocols: “The least controversial is the military’s relatively public use of armed drones in combat in Afghanistan and Iraq, and more recently in Libya. The other two programs – the CIA’s use of drones in Pakistan, and counterterrorism operations by the CIA and the military in Yemen, Somalia and conceivably beyond – are the secret parts.”

So secret are these elements, in fact, that the Obama administration does not acknowledge their existence, though – awkwardly enough – high-level officials frequently discuss them openly, just as they discuss the work of the unacknowledged JSOC. Given the estimated 1,350 to 2,250 drone kills in Pakistan over the past three years, it seems safe to say that the professedly focused and limited target list has expanded far beyond anyone’s original intent – and yet it’s impossible to determine how many of those deaths have been justifiable, and therefore how effective drones really are at limiting collateral damage, because the administration has released only a small number of the names of those killed. It’s impossible for a third party to evaluate the criteria under which targets are chosen and strikes authorized, because the administration, while claiming its targeted killings are proper under both domestic and international law, refuses to explain how it makes these decisions.

In a May 19, 2009, editorial in The New York Times, David Kilcullen and Andrew Exum of the Center for a New American Security called for a moratorium on drone strikes, giving reasons why their costs outweighed their benefits: They outrage the public both in Pakistan and in surrounding regions, and they suggest some confusion between short-term tactics and long-term strategy. Numerous, frequent, and anonymous killings of even the lowest-level operatives in al Qaeda, the Taliban, or anti-Pakistan militants, Kilcullen and Exum claim, actually work against what should be a longer-term U.S. goal: a stable Pakistan with a public that understands and sympathizes with the United States’ war against extremists.

Another potential shortcoming of global covert war is institutional, almost existential, threatening to alter the CIA’s very foundations. Often denounced as irrelevant after its failure to anticipate the 9/11 plot, the CIA has enjoyed a sort of renaissance in the era of shadow warfare. But even as it has developed a new generation of savvy terrorist hunter-killers, the agency has again been criticized for failing to anticipate the Arab Spring uprisings throughout much of the Middle East in 2011. Have the CIA’s core missions fallen by the wayside?

Speaking at the Aspen Security Forum on July 28, 2011, Michael Leiter, who had resigned as director of the National Counterterrorism Center just 20 days earlier, acknowledged this possibility. “What the CIA has transformed itself [into] has made it much more relevant, much more central to this fight,” Leiter said. “But … has that in some ways diminished some of its strategic long-term intelligence collection and analysis mission on areas other than these tactical fights – on China, on counterproliferation, and other things? … We have to be careful that we don’t, in order to pursue the current enemy, lose some of the capabilities we need for future enemies as well.”

Leiter, who led the CTC under the Bush and Obama administrations, claimed that both have taken great pains to discuss the legal and ethical issues of covert warfare and targeted killing. “… both administrations came out in about the same place: That striking individuals who pose an imminent threat to the United States, who are plotting attacks against the United States, is the right thing to do,” Leiter said. “As a matter of the laws of war, it’s the right thing to do, and as a matter of policy, to protect the American people. It’s the right thing to do morally and ethically. And I certainly stand by that judgment.”