Published by Penguin Press (2013)
Reviewed by Jack Goldsmith
I have a long review in the New Republic of Mark Mazzetti’s excellent new book, The Way of the Knife. The first half of the review simply summarizes the book, the main point of which is to demonstrate how since 9/11 the CIA and DOD have changed to become like one another. In short, the CIA has become (in Mazzetti’s words) “a killing machine, an organization consumed with manhunting,” and DOD (and in particular JSOC) “has been dispersed into the dark spaces of American foreign policy, with commando teams running spying missions that Washington would never have dreamed of approving in the years before 9/11.” Mazzetti tells this tale well, and shows how and why both of these elements began under George W. Bush but greatly accelerated under Barack Obama.
The second half of the review jumps off from Mazzetti’s assertion that at the end of Obama’s first term, the nation seemed “little concerned about their government's escalation of clandestine warfare.” This is less true today than six months ago, I maintain, especially with regard to the administration’s drone program. There are growing questions about the strategic success of the drone war (I quote Jane Harman and Stanley McChrystal, but could have cited many others). And there are growing concerns about its legitimacy, both abroad (think of Ben Emmerson’s investigation, and the recent Gallup poll finding that 92% of the people in Pakistan disapprove of American leadership), and at home (I quote Rand Paul, Anne-Marie Slaughter, Richard Durbin, Diane Feinstein, and John McCain). I then speculate that President Obama is losing support for his drone wars at home because “he committed the same sins” as the Bush administration, namely, (a) excessive secrecy, (b) the failure to secure congressional support, and (c) excessive reliance on secret legal interpretation to expand wars abroad.
There are many interesting issues raised by Mazzetti’s book that I was unable to include in the general-audience review for TNR. Here are two additional thoughts provoked by the book:
1. The Way of the Knife raises questions about the proposal, first reported by Dan Klaidman, “to shift the CIA’s lethal targeting program to the Defense Department.” Mazzetti tells some harrowing tales of DOD/JSOC targeted killing mistakes in Yemen, including the accidental killing in May 2010 of Jaber al-Shabwani, a deputy governor and ally of Yemeni president Saleh, and the mistaken killing of Abdulrahman Al-Awlaki, the AQAP leader’s 16-year old Denver-born son, in October 2011. Mazzetti suggests that these mistakes were based on JSOC’s relatively poor intelligence in Yemen compared to CIA. And he says that the White House “took the hunt for Anwar al-Awlaki away from the Pentagon and gave it to the CIA” because of the CIA’s impressive record of success in Pakistan. One comes away from Mazzetti’s book with the distinct impression that the all-important intelligence support for drone strikes is far superior in CIA than JSOC. This is presumably what Senator Diane Feinstein was referring to when she expressed reservations in March about the proposed switch from CIA to DOD:
We’ve watched the intelligence aspect of the drone program: how they function. The quality of the intelligence. Watching the agency exercise patience and discretion. . . . The military [armed drone] program has not done that nearly as well. That causes me concern. This is a discipline that is learned, that is carried out without infractions. . . . It’s not a hasty decision that's made. And I would really have to be convinced that the military would carry it out that way.
As I and others have noted, it is not obvious what the proposed switch from CIA to DOD entails. But Mazzetti’s book makes one hope that CIA will maintain full control over the intelligence side of drone strikes (which is, as several officials have conveyed to me, over 99% of drone operations).
2. Mazzetti pretty much gives the lie to the idea that JSOC doesn’t do “unacknowledged” operations. We know that JSOC participates with CIA in Title 50 covert actions – think of the Bin Laden raid. Mazzetti calls this process “sheep-dipping.” He reports on another joint CIA-JSOC Title 50 operation in Pakistan, a 2006 helicopter raid in Damadola, Pakistan. Sheep-dipped SEALs took off in helicopters from Afghanistan, stormed a compound looking for senior al Qaeda operatives, and brought prisoners back to Afghanistan, all without the Pakistan government’s knowledge. He suggests that covert JSOC operations took place regularly in Pakistan. These operations are presumably reported to both the Intelligence Committees and the Armed Services committees.
But one also gets the sense – in talking to officials, and in reading between the lines of various publications, including Mazzetti’s book – that JSOC does unacknowledged (not just clandestine, but unacknowledged) operations outside of Title 50. This is perfectly consistent with Title 50 to the extent that the operations are “traditional military activities.” But one wonders what will happen to JSOC soldiers, and how the USG will react, if they are captured or harmed in such unacknowledged operations. And one wonders, more broadly, about the legitimacy of the secret world of JSOC operations, which on the whole are even less transparent, and have a less settled and public legal basis, than CIA covert actions. Mazzetti gives us a peek into the world of JSOC, but only a peek. We know that JSOC operates, in various guises and with various missions, in many dozens of countries. But we (in the public) don’t really know what they are doing or where. (Yesterday, the WP reported that JSOC has troops in Mali.)
Here is a prediction: One day a super-secret and perhaps unacknowledged JSOC operation will make a notorious mistake that will cause the United States awkward embarrassment, and that will lead to a public investigation, far beyond the secret reporting to the Armed Services committees, into JSOC authorities and actions that will not show JSOC in a great light. I do not make this prediction because I think JSOC is acting illegitimately – I am sure that the lawyers are being careful and that the relevant committees are in the loop. But history suggests that over time, secret and dangerous operations tend to result in mistakes, blowback, and lots of retrospective hand-wringing about lines of authority, legality, and the like. The CIA has experienced this quite a lot, and I worry, after reading Mazzetti’s tales about the far flung, aggressive, secret, and ever-expanding JSOC role, that JSOC is due.
(Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, and a founder of the Lawfare blog.)