Covert Action: Legal Framework

Thoughts on Stephen Preston's Harvard Speech

By Benjamin Wittes
Wednesday, April 18, 2012, 10:51 AM

How should we understand CIA General Counsel Stephen Preston's speech at Harvard Law School the other day? It is not, like earlier speeches by senior administration lawyers and counterterrorism officials, an effort to spell out the legal framework in which the United States conducts its covert actions. So, in my view at least, the wrong lens through which to view it is by asking how far it advanced the ball past where, say Attorney General Eric Holder carried it at Northwestern last month.

The sense of disappointment in the press and commentariat that Preston did not do more has been palpable. The speech got virtually no attention--save for an exchange between Deborah Pearlstein and Bobby and a tangential jag from Politico and the Atlantic Wire about Preston's account of the details of the Osama Bin Laden raid. When Daniel Klaidman guest-posted here the other day praising Preston's commitment to openness both for the speech itself and for his role in spurring some of the earlier statements, the blogger Bmaz tweeted derisively, "So Dan Klaidman is impressed by the 'leg' shown by Preston+Holder speeches? Is this a joke?"

Since Preston's speech did not claim to spell out the legal framework, it's not entirely fair to judge it by how much extra leg he did or didn't show on that subject. As I sit, Ken hit the nail on the head yesterday when he wrote "We now have a collection of speeches from the past two years by the Obama administration’s top lawyers in the national security agencies and departments on targeted killing and (hypothetically speaking) drone programs" and that they should be understood in concert with one another. That is, we should not understand the Preston speech as a stand-alone document but as part of a far broader effort on the part of the Obama administration to explain how it sees what it is doing.

This broader effort is extremely important. At the time the Obama administration began ramping up the drones program, the amount that either it or the Bush administration had said on the subject was next-to zero. This was hardly surprising, since it was--after all--a set of covert actions. And as long as drone strikes and targeted killings were highly-unusual events, it was even defensible to say nothing on the subject. But early in the Obama administration, it became clear that these previously-episodic, isolated strikes were becoming the main event in American counterterrorism policy. And that put a real premium on explaining the legal thinking behind them. The group of speeches to which Ken referred thus has to be understood collectively as an effort to describe this legal (and legal-policy) thinking.

The specific role that Preston's speech seems to me to have played within this larger project is to begin describing the process of lawyering. That is, the other speeches focused on how the administration sees its authorities and their limits. This one, rather, focuses on applying those rules in an operational setting. There are, to be sure, no relevations on the subject in the speech, and I wouldn't be surprised to learn that similar statements had been made before. That said, Section III of the Preston speech, which reads as follows, seems to me to lay out in at least general terms how agency lawyers would think about the task of lawyering a proposed covert action involving lethal force:

Suppose that the CIA is directed to engage in activities to influence conditions abroad, in which the hand of the U.S. Government is to remain hidden, – in other words covert action – and suppose that those activities may include the use of force, including lethal force. How would such a program be structured so as to ensure that it is entirely lawful? Approaches will, of course, vary depending on the circumstances – there is no single, cookie-cutter approach – but I conceive of the task in terms of a very simple matrix. First is the issue of whether there is legal authority to act in the first place. Second, there is the issue of compliance with the law in carrying out the action. For each of these issues, we would look first, and foremost, to U.S. law. But we would also look to international law principles. So envision a four-box matrix with “U.S. Law” and “International Law” across the top, and “Authority to Act” and “Compliance in Execution” down the side. With a thorough legal review directed at each of the four boxes, we would make certain that all potentially relevant law is properly considered in a systematic and comprehensive fashion.

Now, when I say “we,” I don’t mean to suggest that these judgments are confined to the Agency. To the contrary, as the authority for covert action is ultimately the President’s, and covert action programs are carried out by the Director and the Agency at and subject to the President’s direction, Agency counsel share their responsibilities with respect to any covert action with their counterparts at the National Security Council. When warranted by circumstances, we – CIA and NSC – may refer a legal issue to the Department of Justice. Or we may solicit input from our colleagues at the Office of the Director of National Intelligence, the Department of State, or the Department of Defense, as appropriate.

Getting back to my simple matrix …

(1) Let’s start with the first box: Authority to Act under U.S. Law.

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

A specific congressional authorization might also provide an independent basis for the use of force under U.S. law.

In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding.

(2) Next we look at Authority to Act with reference to International Law Principles.

Here we need look no further than the inherent right of national self-defense, which is recognized by customary international law and, specifically, in Article 51 of the United Nations Charter. Where, for example, the United States has already been attacked, and its adversary has repeatedly sought to attack since then and is actively plotting to attack again, then the United States is entitled as a matter of national self-defense to use force to disrupt and prevent future attacks.

The existence of an armed conflict might also provide an additional justification for the use of force under international law.

(3) Let’s move on to Compliance in Execution under U.S. Law.

First, we would make sure all actions taken comply with the terms dictated by the President in the applicable Finding, which would likely contain specific limitations and conditions governing the use of force. We would also make sure all actions taken comply with any applicable Executive Order provisions, such as the prohibition against assassination in Twelve-Triple-Three. Beyond Presidential directives, the National Security Act of 1947 provides, quote, “[a] Finding may not authorize any action that would violate the Constitution or any statute of the United States.” This crucial provision would be strictly applied in carrying out our hypothetical program.

In addition, the Agency would have to discharge its obligation under the congressional notification provisions of the National Security Act to keep the intelligence oversight committees of Congress “fully and currently informed” of its activities. Picture a system of notifications and briefings – some verbal, others written; some periodic, others event-specific; some at a staff level, others for members.

(4) That leaves Compliance in Execution with reference to International Law Principles.

Here, the Agency would implement its authorities in a manner consistent with the four basic principles in the law of armed conflict governing the use of force: Necessity, Distinction, Proportionality, and Humanity. Great care would be taken in the planning and execution of actions to satisfy these four principles and, in the process, to minimize civilian casualties.

So there you have it: four boxes, each carefully considered with reference to the contemplated activity. That is how an Agency program involving the use of lethal force would be structured so as to ensure that it satisfies applicable U.S. and international law.

I don't want to overstate the importance of this statement, but it strikes me--as Klaidman says--as commendable for the agency to be talking in public about these things, and specifically as commendable as part of a very important larger project.