Abstract
This chapter discusses the domestic legal basis of covert action and the accountability mechanisms that are in place to make covert action an effective aspect of U.S. foreign policy. The chapter provides an overview of key legislation and regulation and how it was historically put into place. It summarizes how Congress has interfered with PMOs over the years. It is argued that although no administration can hide a major PMO from Congress, there are also substantial congressional oversight limitations. First of all, there are a variety of evasive measures an administration can take to reduce the possibility and effectiveness of congressional interference into ‘secret wars.’ Secondly, there are often no strong incentives for the congressional oversight committees to rock the boat by interfering with an administration’s covert foreign policy.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
The OPC was staffed by CIA personnel, but its head was appointed by the secretary of state and reported to the secretaries of State and Defense. This CA outfit was in 1952 incorporated into the CIA when it was merged with the Office of Special Operations (OSO) to form the Directorate of Plans (later renamed Directorate of Operations). See Ranelagh 1986, 133–134.
- 2.
Senator Patrick Moynihan was one of the few legislators, who favored abolishing the CIA altogether. He introduced two legislations to close down the CIA and transfer its functions to the State Department in 1991 and 1995. Moynihan was apparently mostly concerned about the operational/CA role of the CIA, which interfered negatively with the diplomacy of the State Department. See McGarr 2015.
- 3.
The finding described the covert action as ‘provision of material, support and advice to moderate nationalist movements for their use in creating a stable climate to allow genuine self-determination in newly emerging African states.’ Quoted from Treverton 1987b, 155.
- 4.
Congress originally wanted to be notified of CA within 48 hours after start of a covert operation, but under special circumstances the president can delay notification even indefinitely. All of these provisions are a legislative response to the violations that happened during the Iran-Contra affair . President Reagan did issue a finding to sell arms to Iran , but it was issued more than half a year after the first arms shipment in January 1986. This finding was also not relayed to Congress until after the operation was exposed in November 1986.
- 5.
A CIA legal review of the prohibition of assassinations stated that killings that occur in covert actions such as PMOs are permissible with a few exceptions: ‘In contrast, paramilitary operations designed to kill every enemy soldier, with surrender to be refused even if offered, clearly would be prohibited. Nor would CIA condone the use by a supported group of car bombs to spread terror among an enemy population.’ See CIA 1996, 19.
- 6.
The presence of lawyers in the review process is hardly a guarantee that no US laws and regulations are violated in the process of carrying out a covert action . In fact, it is quite impossible for pro-insurgency PMOs to strictly conform to International Traffic in Arms Regulations (ITAR), in particular the requirements for the issuing of end-user certificates. There is also the issue that some PMOs have supported groups on the State Departments Foreign Terrorist Organization list or trained individuals associated with these groups, which is another violation of US laws.
- 7.
Regarding the Senate’s assessment of the CIA’s ‘enhanced interrogation techniques,’ see Senate Select Committee on Intelligence , Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, 13 December 2012. SSCI’s finding #3 was: ‘The interrogations of CIA detainees were brutal and far worse than the CIA represented to policymakers and others.’ This assessment has not resulted in the prosecution of any CIA or Bush administration official, who has authorized or has been involved in torture.
- 8.
CIA subcommittees were formed in the Armed Services and Appropriations Committees in the Senate and the Armed Services Committee in the House, which makes a total of six CIA subcommittees. See Ranelagh 1986, 479.
- 9.
L. Britt Snider has claimed in contrast that over 50 members of Congress were briefed about the secret war in Laos and that Congress had approved funding for the paramilitary operation. See Snider 2008, 270.
- 10.
The Clark Amendment was repealed in 1985 to allow CIA support to UNITA .
- 11.
The missiles only arrived in Afghanistan in September 1986.
- 12.
A particular victory for transparency in CIA covert operations was the public release of over 50,000 Iran -Contra documents and over 13 volumes of congressional hearings and documentation that is available for research. Some of the interesting discoveries in the Iran-Contra documents are published online on the website of the National Security Archive of George Washington University.
- 13.
Bush was vice president under Reagan and as such a member of the NSC . He was briefed on both the Contra and the Iran operations, as was also claimed by Oliver North . See Walsh 1997, 304. Special investigator Lawrence Walsh wanted to indict both Reagan and Bush for their involvement in Iran-Contra.
- 14.
The legislation stated: ‘It should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime.’ US Congress , Public Law 105-338, 105th Congress from 31 October 1998, Section 3.
- 15.
Chalabi lasted only a month in this position because of his great unpopularity in Iraq and his reputation as a fraudster. See Smith 2004.
- 16.
Congress did go along with the CIA’s extraordinary rendition program, despite concerns over its impact on transatlantic relations and human rights abuses, and it even retroactively legalized warrantless wiretapping by providing immunity to participating telecommunications providers.
- 17.
Marc Ambinder and D.B. Grady have argued that by fashioning counterterrorism as a ‘war’ Congress has been removed from the loop since ‘Congress cannot by its nature and expertise or the Constitution tell the commander in chief how to conduct a war. And if Congress has deemed the inchoate battle against terrorism to be such a war, there is little it can do, in retrospect, to regather or reclassify certain types of operations as distinct from this war.’ See Ambinder and Grady 2013, 120. Indeed, the PMO in Somalia and the covert war against Iran have been justified as aspects of the war on terror .
- 18.
Sometimes legislators will pretend that they have never been briefed on certain information after it is leaked to the public. For example, SSCI chairman Senator Barry Goldwater claimed that the CIA never briefed him on the mining of Managua and SSCI chairman Senator Diane Feinstein claimed that she was never accurately briefed on the CIA’s use of ‘enhanced interrogation techniques.’ Since the briefings themselves are classified and might have occurred informally there is no way for the public to prove the legislators wrong when they claim that they were not informed.
- 19.
Zegart quoted CIA officer Robert Baer (who was a key operative in the Kurdish uprising in Iraq ), who told her in an interview: “I used to joke that we treat Congress like mushrooms: keep them in the dark and feed them shit…I knew [House Intelligence Committee Chairman] Goss’s chief of staff, but no one ever called me.” See Zegart 2011, 8–9.
- 20.
There are actually separate control systems for Sensitive Compartmented Information (SCI) relating to highly classified collection sources and methods, SAPs that are mostly used for R&D and acquisition programs, and a covert action control system. It seems that all of them use similar access control measures and regulations, but they are separate channels or compartments. Certain highly sensitive military activities such as ‘clandestine operations’ might be managed as SAPs , a major example being Operation Neptune Spear, which was the SAP codename for the Abbottabad raid.
- 21.
The Senate abolished term limits in 2005 and the House limits HPSCI membership to four terms or eight years.
- 22.
This is documented in an angry report by the US Senate Committee on the Judiciary, Fast and Furious: Obstruction of Congress by the Department of Justice, 115th Congress, 7 June 2017.
- 23.
The FBI ’s letter to deny the request is available at https://oversight.house.gov/wp-content/uploads/2017/05/Reply-Letter-Director-Comey-Memos.pdf.
- 24.
There is a big debate on the involvement of the State Department in ‘color revolutions’ around the world. While it is true not all color revolutions were sponsored by the State Department, there are a few cases where the US government did acknowledge that US diplomats exceeded normal diplomacy by enabling opposition groups. In 2014 it surfaced that the State Department covertly funded until 2010 the development of a ‘Cuban Twitter’ service called ZunZuneo, which was meant to create a communications channel for opposition groups. The State Department even sent out messages that were clearly subversive by ridiculing the Castro brothers. The State Department has funded a lot of other technologies for enabling pro-democracy activists and even expended millions in training activists in online activism (the use of social media ) and in evading government surveillance. Many of the activists, who played a key role in the Arab Spring , had received training from State Department-supported programs through NED, NDI, and IRI.
- 25.
According to the Citizens’ Commission on Benghazi report, the CIA was trying to buy up MANPADS left over from the Libyan civil war, which were then stored in the CIA Annex until they were to be shipped to Turkey . It would follow that a main objective for the attack on the CIA Annex was to capture the weapons stored there. See Citizens’ Commission on Benghazi 2016, 27–28.
- 26.
Project MKULTRA was a secret research program led by the CIA in collaboration with universities, hospitals, and other institutions aimed at investigating ‘mind control,’ which involved illegal and unethical human experimentation on sometimes unwitting or involuntary test subjects.
References
Ambinder, Marc, and Grady, D.B. 2013. Deep State: Inside the Government Secrecy Industry. Hoboken, NJ: John Wiley & Sons.
Axe, David. 2013. Shadow Wars: Chasing Conflict in an Era of Peace. Washington, DC: Potomac Books.
Bobich, Joshua A. 2007. “Note: Who Authorized This?!: An Assessment of the Process of Authorizing Covert Action.” William Mitchell Law Review 33 (3): 1111–1142.
CIA. 1996. “Covert Action, Loss of Life, and the Prohibition on Assassination, 1976–96.” CIA’s Office of General Counsel. http://nsarchive2.gwu.edu/NSAEBB/NSAEBB431/docs/intell_ebb_001.PDF.
Citizens’ Commission on Benghazi. 2016. “Betrayal in Benghazi: A Dereliction of Duty.” Accuracy in Media Inc., 29 June. http://www.aim.org/wp-content/uploads/2016/06/AIM-Citizens-Commission-on-Benghazi-FINAL-REPORT-June-2016.pdf.
Clark, J. Ransom. 2015. American Covert Operations: A Guide to the Issues. Santa Barbara: Praeger.
Cogan, Charles. 1993. “Covert Action and Congressional Oversight: A Deontology.” Studies in Conflict & Terrorism 16 (2): 87–97.
Daugherty, William J. 2004a. Executive Secrets: Covert Action & the Presidency. Lexington: University of Kentucky Press.
Daugherty, William J. 2004b. “Approval and Review of Covert Action Programs Since Reagan.” International Journal of Intelligence and Counterintelligence 17 (1): 62–80.
Davidson, Lawrence. 2009. Foreign Policy, Inc.: Privatizing America’s National Interest. Lexington: University of Kentucky Press.
DeYoung, Karen. 2013. “Congressional Panel Approve Arms Aid to Syrian Opposition.” Washington Post, 22 July.
Ely, John Hart. 1995. War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath. Princeton: Princeton University Press.
Eyth, Marcus. 2002. “The CIA and Covert Operations: To Disclose or Not to Disclose – That Is the Question.” BYU Journal of Public Law 17 (1): 45–72.
Hastedt, Glenn. 2013. “Evaluating Congressional Oversight of Intelligence.” E-International Relations, 23 August. http://www.e-ir.info/2013/08/23/evaluating-congressional-oversight-of-intelligence.
Herb, Jeremy. 2013. “GOP Rep. Threatens to Impeach Obama if American Troops Are Killed in Syria.” The Hill, 27 June. http://thehill.com/policy/defense/308193-gop-rep-threatens-impeachment-if-us-troops-killed-in-syria.
Hicks, D. Bruce. 2005. “Lifting the Arms Embargo on the Bosnian Muslims: Secret Diplomacy or Covert Action?” International Journal of Intelligence and Counterintelligence 18 (2): 246–261.
Kibbe, Jennifer. 2007. “Covert Action and the Pentagon.” Intelligence and National Security 22 (1): 57–74.
Kibbe, Jennifer. 2012. “Conducting Shadow Wars.” Journal of National Security & Policy 5: 373–392.
Koh, Harold. 1987. “Why the President (Almost) Always Wins in Foreign Affairs: Lessons from Iran-Contra.” Yale Law Journal 97: 1255–1342.
Kurlantzick, Joshua. 2016. A Great Place to Have a War: America in Laos and the Birth of a Military CIA. New York: Simon & Schuster.
Lohbeck, Kurt. 1993. Holy War, Unholy Victory: Eyewitness to the CIA’s Secret War in Afghanistan. Washington, DC: Regnery Gateway.
Lowenthal, Mark. 2015. Intelligence: From Secrets to Policy. Washington, DC: CQ Press.
Mazetti, Mark. 2009. “U.S. Says C.I.A. Destroyed 92 Tapes of Interrogations.” New York Times, 2 March.
McCarthy, Andrew C. 2016. “Hillary Clinton’s Benghazi Debacle: Arming Jihadists in Libya … and Syria.” National Review, 2 August. http://www.nationalreview.com/article/438605/hillary-clinton-benghazi-scandal-arming-syrian-rebels.
McGarr, Paul. 2015. ‘ “Do We Still Need the CIA?” Patrick Moynihan, the Central Intelligence Agency and US Foreign Policy.’ History 100 (340): 275–292.
McManus, Doyle, and Toth, Robert C. 1985. ‘Setback for Contras: Mining of Harbors “a Fiasco”. ’ Los Angeles Times, 5 March.
Miller, Greg, and DeYoung, Karen. 2015. “CIA Faces 20% Cut in Syria.” Washington Post, 14 June.
Ott, Marvin C. 2003. “Partisanship and the Decline of Intelligence Oversight.” International Journal of Intelligence and Counterintelligence 16 (1): 69–94.
Pious, Richard M. 2012. “White House Decisionmaking Involving Paramilitary Forces.” Journal of National Security & Policy 5: 465–480.
Priest, Dana, and Arkin, William. 2010. Top Secret America: The Rise of the New American Security State. New York: Little, Brown & Co.
Ranelagh, John. 1986. The Agency: The Rise and Decline of the CIA From Wild Bill Donovan to William Casey. New York: Simon & Schuster.
Reisman, W. Michael, and Baker, James E. 1992. Regulating Covert Action: Practices, Contexts, and Policies of Covert Coercion Abroad in International Law and American Law. New Haven: Yale University Press.
Rhodan, Joe. 2015. “Pentagon Program to Train Syrians Cost $2 Million Per Fighter, Report Says.” Time, 5 November. http://time.com/4102375/syria-rebels-training-program-pentagon-cost-2-million/.
Schwarz, Jon. 2015. “A New Biography Traces the Pathology of Allen Dulles and His Appalling Cabal.” The Intercept, 2 November. https://theintercept.com/2015/11/02/the-deepest-state-the-safari-club-allen-dulles-and-the-devils-chessboard/.
Singer, Peter W. 2003. Corporate Warriors: The Rise of the Privatized Military Industry. Ithaca: Cornell University Press.
Smith, Michael. 2004. “Ministers Were Told Premier was Seen as Stooge.” Daily Telegraph, 24 September.
Snider, L. Britt. 2008. The Agency and the Hill: The CIA’s Relationship with Congress, 1946–2004. Washington, DC: Center for the Study of Intelligence.
Solomon, John, and Shapiro, Jeffrey Scott. 2015. “Clinton State Department Approved Weapons Shipments to Syria Despite Ban.” Washington Times, 20 October.
Treverton, Gregory. 1987a. Covert Action: The Limits of Intervention in the Postwar World. New York: Basic Books.
Treverton, Gregory. 1987b. ‘Covert Action: From “Covert” to Overt.’ Daedalus 116 (2): 95–123.
Truman, Harry S. 1963. “Limit CIA Role to Intelligence.” Washington Post, 22 December.
Turse, Nick. 2017. “Will Obama’s Legacy as Commander-in-Chief Continue Under Trump?” The Nation, 5 January. https://www.thenation.com/article/american-special-forces-are-deployed-to-70-percent-of-the-worlds-countries/.
US Congress. 1947. “Act of July 26, 1947.” Public Law 80-253.
US Congress. 1974. Public Law 93-559 from 30 December.
US Congress. 1982. “H.J.Res.631 – Further Continuing Appropriations Act, 1983.” 21 December.
US Congress. 1998. “Public Law 105-338, 105th Congress.” 31 October, Section 3.
US Congress. 2014. H.J.Res.124 – 113th Congress.” Public Law 164.
US Senate. 1976. “Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities United States Senate: Together with Additional, Supplemental, and Separate Views.” U.S. Senate Select Committee on Intelligence. 26 April.
US Senate. 1991. “S.1325 Intelligence Authorization Act, Fiscal Year 1991, 102nd Congress.” 19 June.
US Senate. 1997. “Report of the Commission on Protecting and Reducing Government Secrecy, 103rd Congress.” 3 March.
US Senate. 2014. “The Benghazi Report: Review of the Terrorist Attacks on U.S. Facilities in Benghazi, Libya, September 11–12, 2012.” Senate Select Committee on Intelligence, 113th Congress, 15 January.
US White House. 1976. “Executive Order 11905.” 18 February.
US White House. 1981. “Executive Order 12333.” 4 December.
US White House. 2011. “United States Activities in Libya.” Washington Post. http://www.washingtonpost.com/wp-srv/politics/documents/united-states-activities-libya.html?tid=a_inl.
Walsh, Lawrence E. 1997. Firewall: The Iran-Contra Conspiracy and Cover-Up. New York: W.W. Norton & Co.
Wettering, Frederick. 2011. ‘(C)overt Action: The Disappearing “C”.’ International Journal of Intelligence and Counterintelligence 16 (4): 561–572.
Zegart, Amy B. 2011. Eyes on Spies: Congress and the United States Intelligence Community. Stanford, CA: Hoover Institution Press.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2018 The Author(s)
About this chapter
Cite this chapter
Krishnan, A. (2018). Accountability in Paramilitary Operations. In: Why Paramilitary Operations Fail. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-71631-2_5
Download citation
DOI: https://doi.org/10.1007/978-3-319-71631-2_5
Published:
Publisher Name: Palgrave Macmillan, Cham
Print ISBN: 978-3-319-71630-5
Online ISBN: 978-3-319-71631-2
eBook Packages: Political Science and International StudiesPolitical Science and International Studies (R0)