Law exacerbates and enables war. For the most part it provides a code or system for legitimizing state violence. At least, this is the case with US Special Forces operating around the globe. It’s partly misleading to characterize their activities as “illegal”. For the most part they operate within an opaque set of rules and regulations. That’s why an overly legalistic critique of the war on terror can miss the point. Drone wars, assassinations, night raids, extraordinary rendition…whatever the “dark side” activity you chose, at one time it was on the books (and still probably is). Opaque, shadowy, and vague…no doubt. But somewhere in the halls of Congress there is a presidential finding or military executive order that authorized it. Of course, that doesn’t mean it’s legal in an international context—but domestically the U.S. war machine was nearly always “lawyered up”.
Let’s start with the difference between covert action and clandestine operations. They’re not the same.
Covert action is a doctrinal and legal term that refers to an activity whose sponsorship is secret and deniable. According to Title 50 of the US Code, a covert action is: “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”. It requires a presidential finding and for the White House to brief the House and Senate Intelligence Committees on its contents. This must occur before the proposed activity, unless there are extraordinary circumstances. This law came into force to prevent “Bay of Pigs” or “Iran-Contra”-type scandals.
Clandestine operations are different because the sponsor is not concealed—only the integrity of the mission is. Crucially, they do not require a presidential finding if “future hostilities” are “anticipated” in the country where they are taking place. Nor is the administration required to report the clandestine operation to Congress. This is because such operations are defined as “Traditional Military Activities” and offer the intelligence committees no real-time oversight controls. As Scahill explains, “Under US law, the military is not required to disclose the specific actions of an operation, but the US role in the “overall operation” should be “apparent” or eventually “acknowledged”(p.92).
The consequence of this legal distinction is enormous. Rumsfeld and Cheney were at war against the planet earth—the world was a battlefield, and therefore hostilities were anticipated “everywhere”, necessitating dozens if not hundreds of potential “Traditional Military Activities”.
More specifically, these types of clandestine operations are known as Advance Force Operations (AFOs), which are “military operations conducted by forces which precede the main elements into the area of operations to prepare for follow-on operations”. Unlike CIA operations, such as drone strikes in Pakistan, AFOs can be carried out with minimal external oversight for a long period of time.
Then there’s the distinction between Title 50 (CIA) and Title 10 (military) authorities. Under Rumsfeld and President Bush, the National Command Authority (NCA) frequently used Title 50 authorities for organizations other than the CIA by delegating military assets to CIA operations, as with JSOC, in order to get around international law or to supersede Congress’ ability to declare war. This is known as “sheep dipping”. But it still meant the House and Senate intelligence committees were briefed. As already explained, Title 10 operations conducted in “Preparing the Battlespace” had even fewer congressional reporting requirements. With the 2001 Congressional AUMF (authorizing the President to use military force against al-Qaeda and its affiliates) in hand, the NCA could direct military operations anywhere in the world without having to classify them as covert actions.
Key documents for the staging of a borderless battlespace:
- 2001 Authorization for Use of Military Force (US Congress)]
- 2004 Al Qaeda Network Execute Order (Donald Rumsfeld)
- 2009 Joint Unconventional Warfare Task Force Execute Order (David Patreaus)
Cheney and Rumsfeld were key architects in lawyering up the war on terror. They exploited a legal grey area as part of their desire to create an uncountable force capable of killing and capturing within minutes and hours, rather than days and weeks. They wanted Special Ops to start hitting globally, and parsed out JSOC from the military’s chain of command, the Special Operations Command. Rumsfeld signed an executive order on September 16, 2003 that established JSOC as the principal counter-terrorist force of the U.S., and this document contained a preauthorized list of 15 countries where counter-terrorist action might be taken. Special Operations Command (SOCOM), a newly established, freestanding command, would be the lead combatant commander. Rumsfeld pushed Bush to add language into National Security Presidential Directive-38 (classified in 2004) that would codify SOCOM’s global role in finding, fixing, and finishing off terrorist suspects across the globe, far away from any declared battlefield.
Also in 2004, Secretary of Defense Donald Rumsfeld signed a secret order that would streamline JSOC’s ability to conduct operations and hit targets outside of the stated battlefields of Iraq and Afghanistan, known as the Al Qaeda Network Execute Order, or AQN ExOrd. This allowed for JSOC operations anywhere in the world. It reportedly named 15-20 countries where al-Qaeda operatives were known to be operating. The CIA put up some resistance, seeing it as another encroachment on its mandate as the lead agency tracking al Qaeda after 9/11. Special Ops were also inserted into US embassies under the cover of Military Liaison Elements (MLE), which drew the ire of the beleaguered State Department. Furthermore, Stephen Cambone, Under Secretary of Defense for Intelligence, issued new guidelines that asserted the right of Special Ops forces to conduct clandestine HUMINT operations before alerting Congress. As Scahill writes, “Combined with the Copper Green program, this effectively meant that JSOC was free to act as a spy agency and a kill/capture force rolled into one” (p.171). At the end of 2004, Donald Rumsfeld penned a classified memo to his top advisors (including Cambone and Douglas Feith). He wrote that he was concerned the phrase “preparation of the battlespace” may be outdated. Today, Rumsfeld declared, “the entire world is the battlespace”.
Under the Obama administration, the 2009 ExOrd signed by David Patreaus was a continuation of the 2004 AQN ExOrd. This new order further emboldened JSOC, and allowed them to operate in denied areas without bureaucratic and legal obstacles. In September, Patreaus signed a seven-page secret order authorizing small teams of Special Operations Forces to conduct clandestine operations off the stated battlefields of Iraq and Afghanistan. The directive was known as a Joint Unconventional Warfare Task Force (JUWTF) Execute Order – and “served as a permission slip of sorts for US military Special operations teams to conduct clandestine actions without the president’s direct approval for each operation” (p. 282). As Scahill adds “Patreaus 2009 ‘ExOrd’ continued and solidified the Bush-era justification for expanding covert wars under President Obama” (p. 2820.
The 2009 ExOrd made it clear that the US military, not just the CIA, was able to conduct such secret operations. It also authorized intelligence gathering by American troops, foreign business people, academics, and a host of others. It was a huge widening of the net. And it was perfectly legal.