Covert Action and the Global War on Terrorism

Actionable Intelligence, demands for a greater role of Special Operations soldiers in the global war on terrorism (GWOT), covert and clandestine operations – where does it all fit in? What does it really mean for the U.S. military?

Make no mistake: There is an upsurge of momentum that is vastly expanding the role of the U.S. military's Special Operations Command troops. Their achievements in both Afghanistan and in Iraq do not singularly a! ccount for their recent unprecedented role in military operations. 

By mandate, training and doctrinal capability the men of the U.S. Special Operations Command – particularly the elite commandos of Delta Force, Naval Special Warfare Development Group (formerly SEAL Team 6) and Special Operations Aviation Regiment 160 – are well-prepared for recent combat missions they have carried in both theaters such as the capture of Saddam Hussein. However, there is more to their re-emergence in daily combat operations while their global anti-terrorist scope of operations widens. 

The fact remains that they are the quintessential fit for this new kind of war. Special Operations Command troops are a scrupulous model for the leaner and more flexible military that Secretary of Defense Donald H. Rumsfeld is fighting to create. 

Rumsfeld's other battle is to change the intransigent mindset of the old-school Army planners still trapped in a Cold War mentality. He has taken on the task of weaning those who still cling to the last vestiges of the “old days” from their ingrained, “fixed-battlefield” perspectives.

There are also many officials outside the Pentagon opposing the increased use of Special Operations troops. Currently, there is a growing concern among numerous elected officials and key defense personnel in and out of uniform, fueled by recent successes in Iraq. Critics fear that expanding the global role of these unique and highly-trained soldiers, as Rumsfeld intends and plans to do, could be risky for U.S. foreign policy.

So what does Secretary Rumsfeld intend to do with the best fighters that our country can muster, where does he intend to send them, and what will they do? Also, what U. S. and, perhaps, international laws govern the actions that Rumsfeld wants these soldiers to engage in?

The secretary's plan is to use our Special Forces soldiers rather than CIA personnel for covert action missions – which by definition are secret and therefore “deniable” should anything go wrong. Rumsfeld prefers the use of soldiers over CIA personnel primarily to avoid red tape and external influences that DoD cannot control. What this translates into is DoD has positioned itself to conduct covert operations abroad without local governments’ consent and with practically no congressional oversight.

Rumsfeld's plan is already coming under severe criticism from members of Congress and other observers both on ethical and legal grounds.

A central argument against the plan hinges on critics' belief that if Rumsfeld gets his way, he and other hard-liners in the Bush administration will secretly attack and undermine other regimes that may be on the administration's hit list – in the absence of public debate that could rule out such actions.

It is likely that the Pentagon will win any political or legal challenge to the Rumsfeld plan. That’s because there are ample legal precedents for this unorthodox approach to fighting terrorism.

“Covert action” is a clearly defined term, and it is not what many may casually assume. It is identified as “actions that seek 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 publicly acknowledged.” 

It is necessary to recognize the distinction between “covert action” and another key concept, that of “clandestine operations.” The latter refers to the secrecy of the operation itself, while “covert” refers to the secrecy of the sponsor of the operation. 

For example, a particular military operation conducted secretly only to preserve or exploit tactical surprise (and which may later be acknowledged after the fact by the U.S. government) would not constitute a “covert action.” There is a fine but discernable line that cannot be blurred in these demanding undertakings.

Covert operations are inherently defined by the notions and concepts of deniability. Although deniability can be valuable, it is also poses a quandary for developed societies founded on the rule of law. Why? Because deniable policies, by intent, theme and definition are inherently deficient in the rules of accountability citizens demand of a democratic government. Ultimately, due to such operations being, “covert” and hidden from the public, neither the reasoning for such missions nor their potential consequences can be debated in a public forum.

The conditions that define the meaning of “covert action” were included in the Intelligence Authorization Act for fiscal year 1991. This legal guidance stemmed from an earlier controversy triggered by a U.S. covert action in the mid-1980s – the Iran-Contra Scandal – where the Reagan White House secretly sold arms to Iran in violation of federal law and pumped profits from the sales to the CIA-backed anti-Sandinista “C! ontra” rebelsin Nicaragua.

The 1991 act required that there must be a written presidential “finding” (retroactivity precluded as ex-post-facto) that must state that the covert action is important to the U.S. national security. As well, it must be justified as being outside the constraints of “traditional military activity.” 

The second applicable stipulation, which is still in force, is that the administration must notify the House and Senate Intelligence Committees of the action as soon as possible after issuing the finding. This must occur before the operation has begun unless “extraordinary circumstances exist” – such as a state of war and other urgent circumstances that must be immediately acted on. If the president finds that such circumstances do exist, he only needs to inform the committees “in a timely fashion.”

Further complicating implementation of the Rumsfeld plan is the challenge of separating what is generally considered “traditional military activity” from the proposed “covert action.” This is a tall order in the current war on terrorism, where there is still an extensive debate as to whether there actually is a war. (Ask a few of our soldiers on the mean streets of Baghdad their opinions on this question!) 

Since our current operations against al Qaeda pass what I term the “common sense” test on confirming that it is a war, then there is a legal precedent for “covert action” against the terrorists. President Bush and Secretary Rumsfeld in my view are justified in acting without having to mitigate their actions with a presidential finding, or informing Congress. 

Of equal legal significance, Senate Joint Resolution 23, which authorized the use of force in responding to the 9/11 terrorist attacks, authorizes the president:
“To use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Secretary Rumsfeld wants the legal power to conduct “covert actions” in order to identify, locate and kill terrorists. I'd say he already has it.
We do not know specifically what the elite commandos of Task Force 121 are doing in the ongoing “hammer and anvil” operation against al Qaeda along the Afghanistan-Pakistan border. We do not know whether our “black SF” troops have secretly infiltrated the autonomous tribal areas where Osama bin Laden and his henchmen are believed to be hiding.

But under the post-9/11 rules, we do know that what they are doing is both authorized and legal.

By J. David Galland

J. David Galland is Deputy Editor of DefenseWatch. He can be reached at [email protected]