A Response to Bill Nelligan

Earlier this morning, Mr. Nelligan posted about the secret OLC memo about Anwar Al-Awlaki as well as the secret panel that designated him a target.  Bill asked two questions: “what is the government obliged to explain to the public after taking such actions,” and “how do such events explain the Obama foreign policy, especially in relation to the rule of law?”  I will not begin to answer the second question, for I simply find it too taxing.  I will, however, take up Bill’s request for “a renewed debate” and address his first concern.

I want to make a standalone statement before going any further: The OLC memo should be released, as least in portions.

With that obligatory statement made, I will now elaborate on what the government is obliged to explain to the public after taking covert actions.  The key to covert action is that the role of the government should not be easily visible.  Ideally, knowledge of government involvement is only by a few.  In fact, covert action is expressly defined in the National Security Act 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” (italics are mine).  It is crucial that governments do not publicly acknowledge their role. Why is this?

Abe Shulsky and Gary Schmitt answer this question about covert actions in their book on intelligence:

[T]here may be cases in which a good deal of information about operations becomes public, but for diplomatic or other reasons, governments involved avoid officially acknowledging their connection with them.  … [I]t is less provocative and less disruptive to diplomatic relations not to acknowledge an operation even if the country adversely affected by it is well aware of one’s involvement.  The target country, either in the interests of good relations or because it cannot effectively prevent it, may ignore the covert action; it is much harder for it to do so if the government conducting it publicly acknowledges what it is doing.

Covert actions are considered the “Third Option” by the Executive, the 1st being diplomacy and the 2nd being military force.  It is important to keep in mind here that the overwhelming majority of covert action is not military in nature.    This could include propaganda (disseminating information that has been created with a specific political outcome in mind), political activity (such as supplying newsprint to anticommunist parties), economic activity (such as German counterfeit operations during WWII to undermine Western currencies), coups, or paramilitary operations.  As the level of violence associated with covert action increases, plausible deniability decreases.

At the root of Bill’s question is the obvious reality that the U.S. Government cannot realistically deny the existence of its drone program.  Why withhold OLC memos or similar documents to maintain plausible deniability when everybody knows we take certain actions?  This seems to be especially the case when counterterrorism advisor John Brennan makes speeches at Harvard and State Department Legal Advisor Harold Koh gives similar legal explanations publicly.

The answer comes down to the difficulty posed by international law.  Although no international acceptance has been given to covert action, the target country may consider the use of military personnel in such an activity to be an act of war.   This is why the CIA, not the DoD, conducted the strike against Al-Awlaki, and that is why we have to maintain plausible deniability.  The question is not whether everybody knows we did it.  The root of the policy decision is having the ability to legally deny that we did it due to “act of war” concerns by the host state.  This answer’s Bills question about “what grave threat the federal government imagines might occur upon the release of its legal rationale for taking action against al-Awlaki.”

I am aware that, as Bobby Chesney points out, “host-state consent appears not to have been an issue in the al-Aulaqi strike, judging from the many reports indicating that the Saleh administration has been trumpeting its role in helping to locate al-Aulaqi in this instance” and that this is “likely is not so much a matter of law as it is a matter of controlling policy guidance, expressed in the form of findings (governing covert action) and execute orders (governing military operations under color of the AUMF, at least) that may differ in terms of the latitude they permit.”

My point stands, however, that the government has good reason not to disclose covert actions in general to the public.  Bill’s post brings to the fore another point: covert action has become so ubiquitous a tool in the Presidential toolbox that it is perhaps becoming misused.  Covert action is now being used to express policy, not to accomplish a task.  Essentially, the actual working of the program is less important than its existence.  Covert actions used to stay buried for years, and this has not been so recently.  Bill is right that in today’s media environment, covert actions are much harder to take without the American public becoming aware of it, and it is right to ask what obligation the government has to explain them.



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Jake Sternberger

Jake Sternberger is a Contributing Writer at Keystone Politics and currently serves as the President of the Dickinson College Democrats. Opinions are his own. @JakeSternberger on Twitter.

2 thoughts on “A Response to Bill Nelligan”

  1. Jake, this is an excellent response. You’ve given me some reading, too, which is awesome. Now, a question I might ask in light of your contentions: have the obligations of government to release information about covert operations changed in the digital age? In an era where secrecy has become exponentially more difficult to maintain, should the government simply work harder to maintain it, or should it reconsider what is secret in the first place?

  2. Perhaps I’m being too naive and simplistic in this approach, but to me this memo is not overly important. I trust that if the government felt as though it were safe to release documents pertaining to national security, they would. And if it’s not safe, they wouldn’t. I’d rather be safe then more informed on how the CIA killed al-Awlaki. If the Obama administration deems it proper to release certain memos and documents, and if they decide such a release would not jeopardize national security in any way, then I’m sure they’ll be released. Until then, I think we should all just be happy that the United States has been so successful thus far in engagements with al Qaeda.

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