On March 12, Congressman Adam B. Schiff’s op-ed “Let the Military Run Drone Warfare” ran in the New York Times, pushing an agenda that’s been on the lips of a number of wonks and politicians ever since Obama’s May 2013 “drone speech”: Transfer the U.S. drone program from the Central Intelligence Agency to Joint Special Operations Command (JSOC) (i.e., the Department of Defense) to improve transparency and oversight. In fact, Schiff argues, the best way to improve transparency and oversight of the drone program is to transfer it. Under the Pentagon’s tent he and others, including myself to some extent, have argued, there’s more room for oversight, and transparency is easier to come by.
The CIA, after all, is in the business of secrets. So transferring a secretive program away from an agency that deals in secrets and doesn’t acknowledge its actions is the solution to the problem, right?
The problem is, as Marty Lederman pointed out at Just Security, multifaceted. You can read the full post here, but there are a couple of points I want to draw on from it.
First, there is no legal basis in the assumption that military strikes are the only strikes can be publicly acknowledged. As Lederman notes, “There is no statute, or any other domestic law, that provides that ‘military strikes can be acknowledged, but…CIA operations cannot.'” Non-acknowledgment, in other words, is not a matter of law.
Thus, instead of a legal requirement, non-acknowledgment becomes “a function of diplomatic and foreign policy considerations.” A host country request that certain military and intelligence activities — even providing aid — occur on the condition of deniability. (Pakistan is a good example of this.) There are a variety of reasons for requesting certain activities are not publicly acknowledged: cooperation with the United States may be unpopular; it could threaten the socio-political stability of the host country; it could provide fuel to an existing security threat. Pending some drastic change in the interests of or the geo-political climate in those states where drones operate, non-acknowledgment will likely be a feature of the U.S. drone program, whether it’s under JSOC or the CIA.
Second, as Lederman and others have pointed out, there’s nothing stopping the DOD from engaging in covert activities. “Covert action” is defined in the National Security Act, 50 U.S.C. section 413b(e) as “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.” Indeed,
The statutory definition of covert action…is broad and can include a wide range of clandestine efforts — from subsidizing foreign journals and political parties to participation in what are essentially military operations. In the case of paramilitary operations, there is a clear potential for overlap with activities that can be carried out by DOD. In general, the CIA would be designated to conduct operations that are to be wholly covert or disavowable. In practice, responsibilities for paramilitary operations have been assigned by the National Security Council on a case-by-case basis.
Even if there were something stopping the DOD from engaging in covert ops, the line between what activities are carried out by the DOD and what activities are carried out by the CIA has become significantly blurred. Section 413b applies to “departments, agencies, or entities of the United States Government.” The provision doesn’t distinguish in the beginning between agencies, nor does it say that the CIA is the only agency that can engage in covert activities. As Lederman notes,
[A]s 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, as long as they have an independent source of affirmative authority for doing so (such as the AUMF, the “fifth function” provision of the National Security Act…or Article II).
There are, he continues, cases where section 413b would not apply, specifically in “traditional military operations.” (What that means is beyond the scope of this post.) Even here, just because an operation doesn’t fall under section 413b doesn’t necessitate that it be publicly acknowledged. Likewise, as Robert Caruso noted a few years ago, the Pentagon has other ways of limiting information as well. Schiff’s point that “such operations [i.e., drone strikes] would no longer be covert” if someone at the Pentagon, not Langley, had their finger on the trigger isn’t an a priori fact. Drone strikes could no longer be covert, but that doesn’t mean they wouldn’t be covert.
In short, there are plenty of reasons to move drone operations to the Pentagon—consolidating the program is one of them—but transparency shouldn’t be the only reason. Transparency won’t come from forcing the program to hop from agency to agency. Instead, it’ll come from a concerted effort, if we can even have one, to “open up” the decision-making process and the results of the program.
