Covert Action

More on CIA Drone Strikes, Covert Action, TMA, and the Fifth Function

By Robert Chesney
Sunday, September 7, 2014, 6:16 PM

Yesterday Kevin Heller and I exchanged views on the possible sources of domestic authorization for the CIA to conduct drone strikes. His two initial posts are here and here; my response is here; and the first part of Kevin’s reply (focused on whether the drone strike program counts as covert action given the traditional military activity exception) is here. Here is my response to Kevin’s latest, focused on the Title 50 questions we've been discussing:

1. The TMA Issue

In response to Kevin’s initial argument that the drone program constitutes TMA and hence cannot qualify as covert action as a statutory matter, I argued that (i) the TMA category applies only in the relatively narrow circumstances when certain conditions are met (involving military command and military implementation, among other things), and (ii) those conditions aren’t met by the CIA program. Kevin raises an intriguing possibility in response. Perhaps there are two distinct functions for the TMA concept, with the scope of the TMA category differing in each case? That is, perhaps the point of the statute is both (i) to avoid having the unacknowledged but traditional activities of the US military become subject to the covert-action oversight regime (with TMA defined narrowly in the way I suggested) and (ii) to preclude the CIA from engaging in the sort of war-related activities that we normally associate with the military (with TMA in this context defined in a functional, common-sense sort of way mapping onto the sorts of things militaries do in war…like airstrikes).
I can well imagine a statute meant to do exactly this, and I might even like such a statute depending on the particulars. But I do not agree that this is the law we currently have. Certainly Kevin is correct that the overarching concern that led to the creation of the TMA exception was the first scenario he highlights, the one in which the main concern is to (partially) shield the military from becoming subject to covert-action oversight. I see no evidence, however, that there was any desire to address the second scenario, and am confident that had the idea of such a prohibition been articulated it would have been hotly contested and explicitly addressed in the (voluminous) legislative history. Even if I am wrong about that, however, I don’t see how we can end up with two different definitions for the scope of TMA; TMA is a term of art with a single and counterintuitively-narrow definition, covering much less ground than a functional, common-sense reading would suggest. And so I’ll stick with my original conclusion: the drone program qualifies as covert action within the meaning of Title 50.

2. The Fifth Function Issue

Long before the phrase “covert action” showed up in the US code, the statutory foundation for covert action was the Fifth Function, which is a famously open-ended invitation for the CIA to engage in “other” intelligence-related activities in addition to the collection and analysis (and similar) activities earlier enumerated in the National Security Act. For just about as long, this was the foundation for presidents to direct CIA to engage in a wide-spectrum of unacknowledged activities—many of which were explicitly paramilitary in nature—including, in some contexts, covert action conducted in contexts of armed conflict in which the US military played an overt role. And thus, though I sympathize with Kevin’s objection that drone strikes are not “intelligence-related” as the statutory text seems to require, the course of performance over the life of the CIA—of which Congress has been well aware for the past several decades at least—compels me to reject a reading of the Fifth Function that would confine it narrowly to collection-related and analysis-related activities. Does that mean that the Fifth Function must include standing authority to kill? I don’t think so; tis is where I think either the AUMF or Article II must come into play, and not just Title 50 provisions. Personally, I think both of them are relevant here. Kevin, in contrast, does not think the AUMF applies to the CIA, and as I understand it will soon reply to my claim that Article II does. I look forward to his thoughts!