Covert Action

The Perils of Partial Official Acknowledgment

By Jack Goldsmith
Friday, April 24, 2015, 9:20 AM

Yesterday the President acknowledged that the United States inadvertently killed an American citizen and an Italian citizen held hostage by al-Qaida.  The killings, he said, took place during “a U.S. counterterrorism operation targeting an al Qaeda compound in the Afghanistan-Pakistan border region.”  The President also directed his press secretary to acknowledge that the government inadvertently killed two other American citizens who were members of al Qaeda – one in the strike that killed the hostages, and one in a separate strike.

The disclosed activities appear to have been part of a covert action. A covert action is defined as “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.”  The President’s public discussion of aspects of a covert action that is designed not to be “apparent or acknowledged publicly” is extraordinary.  “As soon as we determined the cause of their deaths, I directed that the existence of this operation be declassified and disclosed publicly,” the President said yesterday.  And yet also noteworthy was what the President did not acknowledge or disclose.  The President did not acknowledge or disclose where in the “Afghanistan-Pakistan border region” the strikes occurred (reports say Pakistan), or by which Agency (reports say CIA), or from which platform (reports say drone), or who was targeted (other than “an Al Qaeda compound”), or everyone who was killed (other than “dangerous members of al Qaeda” in addition to the names disclosed), or who signed off on the operation (reports say not President Obama).

The President did not officially disclose these things – but his aides did, “speaking on condition of anonymity to discuss secretive operations.”  For many people this will seem odd and unjustified.  Why can the President disclose the existence of the operations and a tad about them but nothing more, but then his aides in coordination can reveal many more details anonymously?  The President revealed a bit about the United States’ role in one or two activities that are likely part of a broader, more general covert action finding.  Put colloquially, the vast majority of the covert action of which the inadvertent killings were a part remains covert.  And to return to the question of why the anonymous leaking might have been appropriate, it has become a regular practice to anonymously leak information about covert actions that are publicly known but not formally acknowledged.  I have explained (and criticized) the logic behind this practice before.  The basic idea is that, even if some fact is publicly known, it is diplomatically less harmful to the target nation if the United States does not formally acknowledge it (and sometimes the target nation insists on non-acknowledgement).  A related idea (which justifies secrecy classifications more than covertness) is that any revelation about our operations informs the enemy and helps it adjust.  Government officials would likely argue that this basic diplomatic and secrecy logic would apply to every aspect of the activities that resulted in the inadvertent killings that the President did not acknowledge.

But this argument has significant limitations.  The values of non-acknowledgement and secrecy are not absolute – as the President’s acknowledgment yesterday revealed.  The decision whether to officially acknowledge one detail or another is always at bottom a cost-benefit analysis for the President to make.  As Marty Lederman explained in connection with the bin Laden operation, continued non-acknowledgement of such details is not compelled by law.  Yesterday the President determined that good-government transparency demands concerning the killing of Americans outweighed the costs to the relationship with the host country, the costs of what our enemies learn about our operations, the costs of the follow-on operation-harming leaks as journalists and others push for more information, and the costs to the effectiveness of the governments’ claims for secrecy in FOIA litigation over drone strikes.

All of which raises inevitable questions about why the government cannot officially acknowledge and openly discuss much more about the particular activities revealed yesterday, or about its drone operations abroad more generally – about, for example, civilian deaths, or which enemy forces were targeted and killed (and why), or the “guidelines under which we conduct counterterrorism efforts in the region” (the President’s words).  To be sure, our democracy is better informed and thus better off for the staged anonymous leaks, at least if the alternative is minimal acknowledgment and no leaking at all.  However, when the government remains so tight-lipped officially about covert operations and then anonymously leaks like crazy to present a self-serving picture of its operations, and its compliance with law, and its fact-based decision-making, the need for formal non-acknowledgment looks shaky or opportunistic.  I say this even though I understand that from the outside it is hard to judge the costs of further acknowledgment on our counterterrorism operations, and that the government often cannot easily explain these matters without giving away too much information.  These considerations are weakened because of extensive and obviously opportunistic leaking, and because some of the government’s claims about the need for secrecy and non-acknowledgment have clearly been exaggerated.

It’s a terribly messy situation. And the mess is compounded because many claim that the killings of American citizens did not comply with the administration's internal guidelines and rules, and that the killings of civilians did not meet the President’s super-high and unrealistic pledge that “before any strike is taken, there must be near-certainty that no civilians will be killed or injured.” Because the application and efficacy and integrity of these rules is now in question, many are ramping up demands to know much more about the factual and legal and policy and procedural and organizational underpinnings of drone strikes. The administration will now face very hard questions about why it cannot reveal more, much more, about these topics.