For PBS: Putting the War on Terror under the law

In early Feb­ru­ary, a Depart­ment of Jus­tice Office of Legal Coun­cil White Paper that sum­ma­rized the White House’s legal rea­son­ing for the war on ter­ror­ism leaked to the pub­lic. While the White Paper lim­ited its dis­cus­sion to why the White House can order lethal strikes against Amer­i­can cit­i­zens, it also con­tains some wor­ry­ing hints about how the gov­ern­ment views its con­flict with al Qaeda.

The White Paper derives the government’s strike author­ity from three sources: the orig­i­nal Autho­riza­tion for the Use of Mil­i­tary Force, passed after the Sep­tem­ber 11th 2001 attacks, the President’s duty to defend the nation under Arti­cle II of the con­sti­tu­tion, and the right to self defense con­tained in inter­na­tional human­i­tar­ian law.

When the AUMF gives the Pres­i­dent author­ity to “use all nec­es­sary and appro­pri­ate force” against any­one asso­ci­ated with al Qaeda, it sug­gests the U.S. is at war with al Qaeda (and in fact, the White Paper also argues that the U.S. is in a state of armed con­flict with al Qaeda).

All of which is under­stand­able, to a degree. If Con­gress has declared a de facto war against al Qaeda and not restricted the means, loca­tions, or tim­ing of that war, then the Pres­i­dent has a duty to lead.

But does it make sense to have a secre­tive intel­li­gence agency lead that war? The CIA is well suited to some forms of para­mil­i­tary oper­a­tions – that’s how it began. The Office of Strate­gic Ser­vices, founded by Franklin Roo­sevelt in the midst of World War II, was the first Amer­i­can intel­li­gence agency. It was dis­banded shortly after the war’s end, and its func­tions were split between the Depart­ments of War and State. When the National Secu­rity Act was passed in 1947, how­ever, rem­nants of the OSS were com­bined to form the Cen­tral Intel­li­gence Agency.

While the CIA was birthed from war, war was not its pri­mary func­tion. While it has engaged in vio­lence since its incep­tion the Agency is pri­mar­ily focused on gath­er­ing and ana­lyz­ing intel­li­gence, and then pre­scribed to act in extra­or­di­nary cir­cum­stances when other agen­cies can not. That is to say, it is pri­mar­ily an intel­li­gence agency with a para­mil­i­tary func­tion, not a para­mil­i­tary agency sup­ported by an intel­li­gence function.

There’s lit­tle ques­tion the con­flict with al Qaeda is not a tra­di­tional war; it takes place in the shad­ows and largely in secret. This should not mean, how­ever, that these hos­til­i­ties should be kept from the mil­i­tary and left in the hands of intel­li­gence agencies.

For one, push­ing the CIA to the fore­front has resulted in a dan­ger­ously unbal­anced out­look and focus. More­over, the CIA has proven inept at hold­ing agents account­able; a 2011 inves­ti­ga­tion by the Asso­ci­ated Press found that “[CIA] offi­cers who com­mit­ted seri­ous mis­takes that left peo­ple wrongly impris­oned or even dead have received only minor admon­ish­ments or no pun­ish­ment at all.”

In con­trast, the mil­i­tary has a much more rig­or­ous sys­tem of account­abil­ity through the Uni­form Code of Mil­i­tary Jus­tice. Though far from per­fect,  even for clan­des­tine mis­sions the mil­i­tary reviews and rep­ri­mands troops who either com­mit crimes or kill the wrong peo­ple. Unlike any­one in the CIA who has killed inno­cent peo­ple, sol­diers who have done so face life in prison.

The mil­i­tary also has a branch devoted to clan­des­tine (“hid­den”) war­fare: the Joint Spe­cial Oper­a­tions Com­mand. JSOC con­ducts many secret raids, kill mis­sions, and even flies drones – much like the CIA. But unlike the CIA, JSOC is bound by stricter rules of engage­ment and its troops are held to higher stan­dards of con­duct. In addi­tion, because it is a fairly recent inven­tion (it was formed in 1980), its bureau­cracy is more flex­i­ble and adapt­able to new chal­lenges and missions.

If the U.S. is going to be in an armed con­flict against al Qaeda for the long haul – and it prob­a­bly will – it needs to do so under the bounds of the law. After all, a major rea­son why al Qaeda is such a threat isn’t that it can destroy the coun­try (it can­not) but rather because of how it sews chaos by break­ing the government’s monop­oly on vio­lence.  By allow­ing the oper­a­tives of the CIA to engage in mis­con­duct with­out con­se­quence, the gov­ern­ment sets a wor­ry­ing prece­dent that it is above review or the law.

Fur­ther­more, shift­ing pri­mary respon­si­bil­ity for the war against al Qaeda to the mil­i­tary would impose greater account­abil­ity and a more explicit legal frame­work on the gov­ern­ment. Though it would also limit action, and would be fiercely resisted by the CIA, it is not a bad deci­sion. The CIA should play a sup­port­ing role to the mil­i­tary in wartime, not under­take its own war.

Of course, this dis­cus­sion assumes that war is the appro­pri­ate frame­work for coun­ter­ing the chal­lenges and threats posed by al Qaeda. It prob­a­bly is not but sadly this is unlikely to change any­time soon. In the mean­time, we should be look­ing at how we evolve our exist­ing war to restrain it by the force of law.

This was orig­i­nally pub­lished at PBS.org.