Covert Action

Harvard National Security Journal Symposium on Covert Action

By Kenneth Anderson, Lawfare Staff
Saturday, April 7, 2012, 8:31 AM

Congratulations to the Harvard National Security Journal for a fruitful conference yesterday on the covert action and the law.  It was an intensive seminar all day long on the domestic and international law issues surrounding all things covert, and special attention to cyber in the opening sessions.  The Washington Post's Dana Priest closed out the day by describing the practicalities of researching national security stories.  Thanks to the Harvard students who organized the meeting, and particularly to James Moxness, the HLS student who pulled the whole thing together.

One substantive observation.  This meeting benefited marvelously from the presence of some of the most senior lawyers on special operations and national security -  but they were all from DOD and would be the first to say that they brought a DOD perspective and an awareness of issues from these standpoint of how they affect the military in the first place.  In the discussion of the "convergence" of military and CIA activities, for example, there were important questions about chain of command, and whether the law of war was met for purposes of combatant's privilege if CIA was in some sense "in command."  The question was quite naturally framed as the effects of CIA in the chain of command on the status of military personnel.  But of course, the question the other way around is also important - what status, if any, do CIA personnel have in these activities?  That question eventually got asked, but if the lawyers at the conference are from DOD, the discussion will naturally reflect those concerns.

I want to reiterate a suggestion I've made before - that the CIA's lawyers have an important role to play, in today's rapidly evolving world of barely-denied operations, known but still not officially acknowledged operations using drones, etc., in articulating the role of the CIA and its legal status and particular legal-policy perspective.  The current General Counsel to the Agency, Stephen Preston, has made some careful, thoughtful moves toward trying to provide outreach, so that the particular legal views of the Agency can be brought into the public policy discussion.  I welcome those steps - and I would be the last person to understate just how difficult a task it is to calibrate the right way forward for an agency whose task is partly clandestine work to decide what to say, how much to say, where to say it and to whom.

But to use yesterday's conference as an example, the presence of a senior lawyer from the CIA on one of these panels - with all the cautions and limits on what can be said - would do a lot to convey that the Agency thinks hard about these legal issues, too, and that there are concerns and a perspective unique to the CIA that also need to be articulated.  In the absence of direct participation by CIA lawyers, much of that perspective has to be reconstructed and articulated by outsiders - leading national security academics such as Bill Banks, for example, in yesterday's meeting, or Bobby Chesney in his comments on Title 10/Title 50 convergence - if it gets articulated at all.  I don't doubt at all just how difficult it is institutionally for the CIA to find ways to express its particular ways of analyzing the domestic and international law around these issues.  But I certainly want to encourage it to do so and commend Stephen Preston for the properly careful steps he has taken to look for avenues of outreach on the CIA legal policy.

The Law and Policy of Covert Operations: Current & Future Challenges

Friday, April 6, 2012
11:30pm – 6:30pm
Wasserstein Hall, Milstein East Rooms A/B (located on the second floor)

11:30: Lunch Provided

12:00-12:15: Opening Remarks by Dean Minow

12:15-1:00: Opening Discussion – “Should the U.S. Take First-Strike in Cyberspace off the Table?”

  • Mr. Herb Lin (National Academies)
  • Prof. Chris Demchak (US Naval War College)

1:30-3:00: Panel: Future of Covert Operations: Domestic Law & Policy

  • COL Renn Gade (SOCOM)
  • Prof. Robert Chesney (UTexas)
  • Prof. William Banks (Syracuse)
  • Andru Wall (Alston Bird, former USN)
  • Moderated by Mr. Juan Zarate (CSIS, former NSC)

3:00-3:30: Coffee Break

3:30-5:00: – Panel: International Law & Covert Operations

  • Brig. Gen. (Sel) Richard Gross (CJCS)
  • Prof. Oona Hathaway (Yale)
  • Eric Greenwald (CyberCom)
  • Prof. Ken Anderson (American University – Washington)
  • Moderated by Michael J. Glennon (Tufts)

5:30-6:30pm – Keynote Address by Dana Priest (Washington Post)