Legitimizing the use of covert action in the eyes of the American people

afghanistan-cia-pqk-force_0Covert operations loomed large in Cold War debates about the legitimacy and morality of intelligence organizations. Since September 11, Washington agenda for taking the offensive to the United States’ enemies has revived such arguments. Indeed, there has been a fresh burst of enthusiasm for covert operations after a special team of Navy SEALs killed Osama bin Laden in May 2011. Information now available suggests an increase in covert activity in Iraq and Afghanistan and in infiltrating terrorist cells. Few days after 9/11, President Bush signed a top secret presidential finding that autorized the CIA to pursue Al Qaeda suspects around the world, which laid the foundations for the GST program which granted the CIA for maintaining secret prisons abroad or use illegal interrogation techniques (Kidde, 2012: 374). As the United States planed to pursue Al Qaeda and the Taliban in Aghanistan, the CIA recoursed to common strategy of providing and training local proxy armed groups they organised into Counterterrorism Pursuit Teams (CTPT) (ibid: 374). The involvement of the CIA in drone missile attacks in Pakistan and increasingly in Yemen also raises concerns about the practice area and the legality of covert actions. These events suggest that it may be time to reconsider once again the issues surrounding the legitimacy of covert action.

This essay will examine the legitimacy of covert action in the eyes of the American public opinion. How legitimize and make covert action acceptable for Americans ? In the 1970s, the Church Committee raised three questions reviewing the legitimacy of covert action: is covert action effective ? Is covert action under proper democratic control ? And finally, is covert action moral ? This article will first define covert action and look back at history trying to assess the effectiveness of covert action. It will then briefly consider the constitutional and procedural legitimacy of covert operations. To conclude, this paper will focus on the moral issues of covert action as a key element in its legitimization.

What is covert action ?

How to define covert action ? The fundamental objective of covert action is to influence foreign governments, non-state actors or individuals in support of a government’s policy goals while maintaining a lack of intended acknowledgement of the overall operation by the sponsoring government. According to the US law, covert action is “an activity of the United State government to influence political, economic, or military conditions abroad, where it is intended that the role of the [government] will not be apparent or acknowledged publicly” (Scott, 2004: 324). This definition does not include traditional counter-intelligence and counter-espionage, diplomatic, traditional military or law enforcement activities. As a Senate Report explained, “activities which may be undertaken in secret but where the role of the United States will be disclosed or acknowledged once such activities take place are not covert actions” (Radsan, 2009: 534). This definition excludes every action whose preparation is secret but whose clandestinity disappears as soon as American troops arrive on the ground (ibid: 534).

The American literature provides diverse typologies of covert action that generally distinguish between political action, economic action, propaganda and paramilitary activities. Political action is a diffuse category that involves actions from financial support to political groups to the creation of insurgencies. Some known examples of political action include the funding of forces loyal to the Shah of Iran in 1953, the efforts in 1961 to remove Rafael Trujillo from his leadership of the Dominican Republic, the overthrow of President Allende in Chile, or the support to opposition groups to oust President Ferdinand Marcos in the Philippines or President Manuel Noriega in Panama in the 1980s (Stempel, 2007: 127).

Economic action has been the least used type of covert action by the CIA. This type of covert action has Legitimizing the use of covert action in the eyes of the American people been employed against Allende government in Chile in the 1970s through the encouragement of labor strikes and depressing the world copper price (ibid: 126). As for propaganda, it refers to the diffusion of information in order to influence public opinion such as falsified documents or the establishment of clandestine radio stations like Radio Free Europe and Radio Free Liberty during the Cold War. In Guatemala in 1954, the CIA created a radio station that broadcasted news of a revolutionary army ready to overthrow the pro-Communist President Jacob Arbenz. Similarly in Iraq, U.S military officials paid newspapers to have stories placed in the press praising the merits of the American soldiers in enhancing security in Iraq (ibid: 125). Finally, paramilitary activities is a type of covert action that often overlaps with political actions and generally consists in assassinations and support for guerilla operations, such as in Vietnam, Indonesia, Nicaragua, Angola and more recently Afghanistan and Iraq.

The effectiveness and suitability of covert action

Locating covert action within broader debates in international and moral politics should not eclipse critical questions about whether they work. Assessing their effectiveness is crucial but this is not an easy task. Two questions here are worth asking: which criteria should be used to evaluate the performance of a covert action and according to who ? It undoubtedly appears easier to justify a successful decision – even immoral – rather than a failing one, however moral and legal it may be. If we look back at history, the effectiveness of covert action is a much debated issue. Since the enactment of the National Security Act in 1947 which placed responsibility for covert action with the newly created CIA, covert actions have had a controversial history. Whereas covert actions have been existing for centuries in Europe, the United States has had a shorter history in developing intelligence capabilities. Nevertheless, covert action is a tool of the United States statecraft that finds its roots back to the Revolutionary War and was already used by the United States during the 19th century to extend its territory and protect its economic interests overseas (Daugherty, 2010: 1). Until the 20th century, little distinction was made between intelligence activities and covert action. The United States had no professional diplomatic community until the Rogers Act of 1924 and no formal intelligence organizations before the 1940s. In 1941, Franklin D. Roosevelt appointed William J. Donovan to create the Office of the Coordinator of Information, which then became the Office of Strategic Services (OSS) and conducted “covert actions” during World War II. After the war, President Truman transferred its functions to the State Department and enacted the National Security Act of 1947 which created the CIA (ibid: 124). The same year, the CIA recorded its first success when the Italian Christian Democrats won the elections over the Italian Communist Party thanks to its covert support. The Cold War marked the golden age of covert action, although tensions between its effectiveness and the requirements of democracy persisted, sometimes breaking into open hostility. Indeed, covert actions have regularly failed. After the disaster of the Bay of Pigs, clandestinity and deniability disappeared entirely, while “the chance of keeping (the action) tolerably secret diminished to the vanishing point” (Treverton, 1987: 999).

Unfortunately, major covert actions generally become public sooner rather than later and have been under strong criticism during the last decades. For its supporters, covert action generally represents discreet, inexpensive and effective forms of intervention that make more violent methods unnecessary. In spite of its defaults, covert action “ultimately produce results sufficient to make it an attractive adjunct to a president’s foreign policy” (Daugherty, 2010: 3). During the Cold War, the third option appeared as an efficient mean to thwart the communist threat in situations in which overt diplomatic or economic pressure failed to achieve the objectives of the United States while direct military intervention may be too risky. Covert action appears as a less confrontational action than aerial bombardment for instance, and offers an effective alternative to the harmful side effects and costs of military actions (Heriksen, 2010: 145). On the contrary, for critics, covert action often results in failures which strongly undermine the legitimacy of U.S intelligence and erode its foreign policy creating diplomatic tensions. Short-term successes often lead to long-term catastrophes. As Daugherty underlines, “the undesirable consequences of overthrowing governments frequently outweigh the shorter term gains” (Daugherty, 2010: 4). For instance, the 1954 eviction of Jacob Arbenz in Guatemala represented a key step in limiting the spread of Communism in Latin America but it brought a military dictatorship to power, resulted in the deaths of hundreds of thousand people and boosted anti-American feeling on the continent (ibid: 4). Similarly, the CIA role in the overthrow of Mossadegh became a factor in the fall of the Shah in 1979 and the establishment of a regime that has been a merciless and intractable enemy until now. Furthermore, another major criticism refers to the illusion that major results can be obtained for minimal outlay thanks to covert action: according to Prados, for the limited number of covert actions for which data is available, no action of this kind was ever achieved within its allocated budget: the Iran operation was supposed to cost $800,000 to $1,6 million, but the price expanded to $80 million (Prados, 2012: 366). Last but not least, covert actions nowadays are subject to serious operational difficulties because of new and highly performant recognition and locational techniques.

The inevitability of publicness

Covert action is supposed to remain unknown from the public. During more than twenty-five years after World War II, Americans regarded covert activities with a “don’t ask, don’t tell mentality” (Stempel, 2007: 129). Indeed, the majority of nations until now never have openly discussed covert action. Nevertheless, since the scandals of the 1970s, the Watergate and later the Iran/contra affair, Americans are more suspicious of their government. This scepticism has been reinforced by the prominence of investigative journalism. As Treverton writes, “The media now contain more people asking hard questions (…) and probing for leak” (Treverton, 1987: 1002). It is more and more difficult for the US government to keep covert action programs secret. Memoirs, intrusive journalism, defectors, whistle-blowers, judicial investigations but also declassification of archives are all sources which threaten the secrecy of covert action. Furthermore, one consequence of 9/11 is that much more has become known about covert operations, as the need to evaluate and reconsider them is increasingly growing. According to Prados, leaks are unavoidable, as a covert operation involves many distinct actions and actors, each with its own possibility of revelation (Prados, 2012: 365). Indeed, leaking has become routine in Washington. Officials at the top of government leak information for the recompense of “ being pandered to by journalists more famous than they” or to rally opposition (Treverton, 1987: 1002). Furthermore, covert actions are hardly secret to the target populations and if the leak does not come from Washington, the affair will eventually comes out in the foreign press.

The simple lesson is that sooner or later, covert operations will be disclosed. This lesson leads directly to moral issues. Thus, the prime concern of any president considering covert action should be “what happens if-or more likely, when-it becomes public?” (Treverton, 1987: 1010). As covert-action will not remain secret, the program’s goals should be compatible with American values, interests but also foreign policy, in such a way that when the program will become public knowledge, the American people think it was a valuable objective. Another warning signal calling on the executive not to use covert action is the response to the question: does this covert action contradict foreign American policy ? If it does, it is highly unlikely that the operation will resist the test of disclosure (ibid: 1011). Taking the Iran/contra scandal as an example, it was very unlikely that trading arms with a nation sponsoring terrorists and with little respect for human rights would be accepted either by the American people or by the US allies.

Constitutional and political legitimacy

One of the first consideration to legitimize the use of covert action by the US government is: can these secret operations be made to coincide with the requirements of governance in an open democracy ? The American system regarding covert action is unique and no other country deals with covert action similarly. I will here examine briefly the legal and regulatory framework of covert action and review its major deficiencies.

After the National Security Act of 1947 it was accepted that Congress had given the President complete authority to conduct covert action. Since the creation of the Directorate of Plans – known as the Directorate of Operations from 1973 to 2005 and as the current National Clandestine Service – covert action programs have been managed by the CIA. Although no statutory authority existed for covert action, Congress was not involved in covert action before the 1970s and this lack of interest was amplified by a bipartisan consensus that this domain was a matter of presidential discretion, supported by the principle of “plausible deniability”. As Radsan writes, “Congress, with faith in the Executive, assumed the CIA’s activities were conducted in a manner that maximized benefits and minimized risks” (Radsan, 2009: 520).

Nevertheless, several intelligence and foreign policy mistakes in the 1960s deteriorated Congress trust in the Executive and prompted it to take a more active role. In 1974, the Hughes-Ryan legislation was passed and gave explicit statutory support to covert action, marking the beginning of Congress involvement into these activities. The legislation prohibited funds from being spent on a covert action unless the President considered that the operation was important to the national security of the United States and provided a finding to the appropriate committees of the Congress. This legislation ended the doctrine of plausible denial for the President and increased Congress power to block an action it considered inappropriate.

In 1975, the Senate created the Select Committee to Study Governmental Operations with respect to Intelligence Activities, known as the « Church Committee ». The Committee concluded that covert action should be used only for serious threat to United States national security in exceptional circumstances and must not be used as a “vehicle for clandestinely undertaking actions incompatible with American principles » (Radsan, 2009: 524). In 1980, the Intelligence Oversight Act reduced the number of oversight committees from eight to two, consolidating the House Permanent Select Committee on Intelligence (HPSCI) and the Senate Selected Committee on Intelligence (SSCI) in order to increase the chances of maintaining secrecy. After the Iran-Contra affair, both the President and Congress established entities to study the scandal and suggested remedial measures to the intelligence community. In 1991, the Intelligence Authorization Act was passed, the last piece of major legislation on the process of covert actions. This Act provided the first statutory definition of covert action and reinforced reporting requirements, such as the obligation for a written finding (ibid 531). An important element of this legal framework is that the Act applied its requirements to « any department, agency, or entity of the United States Government” which implies that the SOF should follow the same regulations for presidential findings and congressional notification when acting covertly (Kidde, 2012: 379).

The United States is the only government in the world that submits covert action to such scrutiny by a legislative body, which ensures that additional perspective and expertise will objectively assess and improve a program. This congressional oversight is part of United States’ constitutional system of checks and balances in which the people are sovereign and the executive accountable to the citizens for its actions (Daugherty, 2010: 8). Nevertheless, the process for approving covert action should become more transparent to the public. Covert action reactivates the debate about the balance between security and democracy: too much detail about covert action being shared with the public could certainly damage American national security. Moreover, there is surely a risk that some members of the Congress are unable or unwilling to maintain confidentiality and will expose ongoing covert operation, therefore prejudicing the goals of the operation but also compromising human lives (Eyth, 2002: 65). But while secrecy is necessary for effective covert action, the internal decision-making process is still too opaque.

By providing more transparency and removing some worthless enigma of the covert action process, the executive would increase public support for the third option, which remains incoherent and fuzzy. As Prados writes, “the truth remains that there is no reasonable technique of cost benefit analysis to apply to proposals for covert operations” (Prados, 2012: 362). Covert action programs are not traditional intelligence programs but are elements of a government’s national security policy and as such are truly presidential. Ultimately, the decision to undertake a covert action depends on the president, his understanding of the situation and his attachment to an oversight process, which may lead to the exclusion of a true expertise, risks assessment and collective wisdom (Daugherty, 2010: 5). Similarly, blanket findings signed by the President which do not contain any details also raise concerns. Furthermore, the House and Senate Intelligence Committees’ authority can be circumscribed in numerous ways. The US law does not explicitly define the amount of disclosure to Congress and the scope of covert activities, which leaves the door open for significant presidential discretion (Eyth, 2002: 60). Very few people are involved in the process of approving covert action and several exceptions to the law exist that a written finding must be reported to the Congress, for instance in case of “extraordinary circumstances affecting vital interests of the United States” (Radsan, 2009: 532). Nonetheless, Congress is an essential reality check on what the American people will support if a covert action becomes known to the public, and should not be bypassed. As Radsan writes, “members of Congress, unlike a sole president, are a better approximation for the mood all over the country” (ibid: 547). The public, embodied by the Congress, should systematically – at least indirectly through congressional committees – be consulted in order to ensure the existence of the democratic principle of checks and balances.

Furthermore, some activities still escape the covert action label and are only subject to routine decision-making without “special authorisation”. As mentioned above, the US law excludes « traditional military activities » and « routine support » from the definition of covert action. For instance, covert operations conducted by SOF in countries with which United States is not at war to “prepare the battlefield in anticipation of future military hostilities do not require a presidential finding (Kibbe, 2012: 381). Yet, the US military and intelligence agencies are more and more integrated, while congressional oversight remains locked into an obsolete paradigm (Wall, 2011: 141). While the CIA approach is more and more militarised, the attribution of the proper roles between the US military forces and intelligence agencies complicate the debate over the legitimacy of covert actions. As Prados writes about Pakistan, “when the drones are striking, on average, every three days, that is aerial interdiction, not a targeted covert operation” (Prados, 2012: 370). The distinction between the intelligence-gathering activities carried out by the Central Intelligence Agency (CIA) and the clandestine operations of the Department of Defense is increasingly blurred. In this context, critics accused the Bush administration of shifting more covert activity from the CIA to the military in an intentional strategy to exploit the “traditional military operations” ambiguity and escape congressional oversight, since the military oversight is far less constraining. Similarly, the intelligence committees accuse the DoD of labeling its clandestine operations as operational preparation of the environment in order to avoid congressional oversight (ibid: 102).

Moral and ethical legitimacy

In 1975, the Church Committee focused on three questions in an attempt to legitimize covert action: is covert action effective ? Is covert action under proper democratic control ? And above all, is covert action moral ? Under which moral principles and justifiable circumstances should the executive use covert action, despite principles of democratic representativity, state sovereignty and non-interference ? Several scholars have made the argument that covert action must be considered in terms of Just War theory. This doctrine aims at ensuring that war is morally justifiable through a set of criteria and is divided into two categories: the jus ad bellum – which could refer to the question: “are the reasons to conduct a covert action moral ? – and the jus in bello – which could answer to the question “is the way to conduct covert actions moral” ? According to the Just War theory and as discussed earlier, a war – to understand as a covert action – is moral when it is undertaken by a legitimate authority. Furthermore, according to the doctrine, covert action is “just” when the action is perceived as a just cause – such as self-defence against an imminent threat. Covert action must also pursue a legitimate aim; must be carried out as a last resort and be conducted moderately and proportionally to the threat. In addition, there must be a serious prospect of success with minimal damage to innocent people and the consequences of the action must be carefully weighed in order that the intervention does not cause suffering and destruction graver than the evil to be eliminated.

First, in order to be moral in the eyes of the American people, covert action must be perceived as a just cause. American attitudes are certainly different according to the magnitude and the nature of the threat. For instance, during the Cold War, the Soviet threat was considered as a significant and imminent danger for the US national security. Most of Americans clearly shared the concerns of their leaders with the USSR threat and their congressional representatives generally agreed with significant increases in defense spending and covert actions (Treverton, 1987: 1003). Similarly, when the covert operation in Afghanistan in support of the Mudjahidins appeared in the press, it remained on the front page only for few days and did not create a national scandal: the operation was perceived as relatively legitimate by the American people and as a legitimate response to the Soviet menacing expansionism. “The end justifies the means” gives a good summary of this argument. Undertaking covert action is generally justified as vital for US national security and critical threats to American security require firm response, whatever the means used to counter it. Nevertheless, are the targets of covert actions genuine threats to American national security ? In the past, US policy makers expressed more preventive motivations for their actions than curative reasons. For instance, in Latin America, US executive knew that communists were not yet dominant in these countries but they were scared that they would take over in the future and lead more countries to turn to communism. The executive justified the use of covert action as a way to counter the “possibility” of communist takeovers, but they did not respond to an objective threat. The overthrow of Allende in Chile did not meet the logic of a Just War against an enemy which was threatening the direct interests of the US: it was only a preventive war and was certainly not undertaken as a last resort (Downes & Lilley, 2010: 304).

Furthermore, the nature of the enemy targeted by covert action is of primary importance and raises the issue of “just cause” and “legitimate aim”. It is certainly difficult to ignore the advantages of covert action when the intervention focuses on an enemy that is erratic and capable of inflicting great harm. A covert action directed against an hostile government is far more likely to be accepted by the American public than when aimed at neutral or democratic nations. Covert actions undertaken to change the policies of a democracy, for instance, appear as very risky and could lead to severe internal – but also diplomatic – consequences, generating a lack of trust on the part of the population against its government (Daugherty, 2010: 2). Inter-democratic covert action contradicts the idea that democracies should be able to resolve conflicts with other democracies via negotiations and compromises. In addition, the impression that the CIA acted against national sovereignty and non-interference contravenes the basic postulate of liberal international theory which states that nations have the right to be free from foreign intervention. Violation of these rights is costly for the United States that appears not to keep his word and trampling on the values it stands for in the world. Notwithstanding, the CIA argues that counter-terrorism actions led by the CIA are often conducted in areas where weak states cannot enforce their own sovereignty, which can therefore be legitimately violated by the United States to combat terrorism (Kibbe, 2012: 392).

The principle of legitimate goals is also essential in legitimizing covert action. Many would argue that promoting the cause of dialogue, reconciliation and democracy is essentially worthwhile. Covert action as an instrument of political will to engage in dialogue and pacification is undoubtedly justifiable. Furthermore, acting in the name of democracy appears as inherently moral. Nonetheless, very few examples support this argument. As demonstrated by the history of covert actions, democracy is doomed to fail when it is imposed from the outside. Covert operations to establish democracy have had minimal positive results, if not negative impacts. There is hardly one case of a representative democracy resulting from such an operation (Prados, 2012: 366). On the contrary, there are various cases of authoritarian regimes being put in power by covert actions and carrying fierce repression and violations of human rights, like in Guatemala, Chile or Indonesia. There is something profoundly absurd about helping to oust governments that came to power through fair elections in the name of democracy, as the CIA did in Chile.

Indeed, Chile’s identity as a democracy was widely recognised by US policy makers in the 1970s, although this perception did not translate into restrained behavior or respect (Downes & Lilley, 2010: 269). Covert actions seem to have contributed more to suffering in many nations than to the US quest for democracy. Unfortunately, the US goals undertaking covert actions have often been related more to greedy interests and desires for power than to democratic goals.

The morality of covert action also concerns the characters they involve working with, such as amoral governments and erratic armed groups. The nature of those who are to receive American assistance via covert actions is not a detail. The argument here is often to choose the lesser of evils in order to preserve American interests. Because supporting movements has often relied upon recruiting prominent individuals, the CIA has tended to become connected with oligarchs, like in China and Indonesia in the 1950s or Chile in the 1970s. This phenomenon is similarly observed regarding recent CIA operations against resistance movements in Afghanistan or Pakistan (Prados, 2012: 365). Secondly, since relationships between

the supported movements and the United States are supposed to remain secret, the CIA is in a weak position to force them to act according to American purposes and will unavoidably become associated with their actions when the intervention will become public knowledge (Treverton, 1987: 1012). For instance, the aid to the Contras in Nicaragua has been denounced because of their non-observance for human rights. Similarly, the backing to UNITA forces in Angola by the US in the 1980s originally intended to counter the Soviet Union and Cuba, but was perceived as a signal to the rest of the world that the US were supporting the apartheid regime in South Africa (ibid: 1012). Today, in weak countries without strong political institutions and opposition parties, the CIA has no other choice – once again – to forge affinities with recruited tribes in Somalia or in Afghanistan that do not meet the criteria of “democratic” allies.

Finally, to be moral, covert action must also be conducted proportionally to the threat considered. The means by which covert action is carried out are central in the debate on the morality of covert action. Nowadays, the “war on terror” against terrorist groups seems to justify the use of drastic methods to counter unstable and barbarous enemies. For instance, under the expanded authority, the CIA can eliminate individuals on the basis of « pattern of life » analysis – when various sources of intelligence prove that someone’s actions over time have made it “obvious that they are a threat » (Kidde, 2012: 375). Critics argue that record of covert operations has included many human rights violations and bloody tactics. Nevertheless, defenders of covert action retort that their enemies were equally ruthless. According to them, vital necessity can justify actions such as the employment of torture, renditions or arbitrary detention and these methods proved their efficiency in acquiring the actionable intelligence that conducted the successful attack on bin Laden. The Bush administration have constantly made the argument that the viciousness and cruelty of the Islamic terrorists required an unconditional response that made all these debatable modes of operation acceptable. Nonetheless, apart from the fact that the legitimacy of this kind of methods is very questionable, the necessity of these practices is also far from being obvious. According to Prados, there was no urgency at the issue of bin Laden, since his hunt lasted almost ten years. As the author writes, “there is absolutely no reason to believe that over ten years the same information could not have been elicited by conventional methods” (Prados, 2012: 362).

Conclusion

Covert actions can be an efficient and powerful tool for US security but its lack of legitimacy undermines its efficiency and right to exist. Questioning the legitimacy of covert action is indispensable at a time when the United States faces new and challenging enemies and conduct a controversial “war on terror”. Covert action has too often been a way to conceal controversial and unscrupulous policies that are very likely not to be accepted by the American people when revealed. The principle of “covertness” aims at preserving the national interests and security of the United States, not disguising dirty policies and dishonest alliances. The CIA should be allowed to continue conducing important covert operations secretly even if entire Congress or the public is not consulted to ensure the effectiveness of the operation and safety of the individuals involved. The benefits obtained from secret intelligence gathering would be lost by involving more people than necessary. Nevertheless, policy makers should keep in mind that covert actions will not remain covert for long and that when disclosed to the public, its cause, goals and modalities will then be subjected to a merciless public opinion, which will be uncompromising with regard to the legitimacy of such an action.

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