CIA-JSOC Legal Authority Mixing


apologies for the lack of posting. I’ve been rather busy with one thing and another, mostly preparing documents for my upcoming PhD appraisal, and preparing for the Socio-Legal Studies Association Conference 2016 that is being held at Lancaster. I’m presenting in the poster competition on the framework for targeted killing. After the conference I’ll try and put my poster online, if anyone is interested.

As part of my research, I came across this interesting article in the footnotes of Gregory McNeal’s article Targeted Killing and Accountability. What it mentions are four authorities given to the CIA and the US military that expand the legal footing upon which they can fight Al Qaeda and associates. It also gives some wiggle room allowing joint CIA-JSOC activities to be carried out whilst possibly avoiding the legal hurdles each organisation faces. For more on what JSOC, or Joint Special Operations Command is, see here.

US Special Forces help Northern Alliance troops away from a CIA-operated MI-17 Hip helicopter at Bagram Airbase, Afghanistan, during Operation Anaconda, March 2002. Photo by MSgt Keith Reed

As a preamble, I’d just note that my knowledge of the US legal framework for the intelligence community isn’t complete, so best to corroborate anything I say here before quoting me. Also, with a lot of this information being secret, the journalistic basis for this might not be wholly informed, so this analysis comes to a set of potential, rather than definitive conclusions.

However, before these authorities is the US National Security Act 1947, s.102(d)(5) of which allows the CIA to engage in covert action. Executive Order 12333 signed by Ronald Reagan, defines covert actions as ‘Special Activities’ that are completely deniable by the US government, and also makes the CIA, which is the sole executor of covert actions accountable to congress.

Bush ‘War on Terror’ Speech to Congress. “0th September 2001. Photo by Eric Draper.

So, onto authorities: The first is a post-9/11 order signed by President Bush allowing the CIA to kill/capture Al Qaeda militants as covert actions. This is interesting, because it firstly puts the whole kill/capture programme into the hands of the CIA, rather than JSOC, even though at this point they were probably the only ones really skilled in it. However, as such operations would likely have been carried out by the CIA Special Activities Division Special Operations Group (The CIA’s paramilitary), who are made up of lots of ex-JSOC guys, the experience would have carried over. It’s also symbolic of Bush’s post 9/11 speech to Congress, where he declared War on Terror:

Our response involves far more than instant retaliation and isolated strikes. Americans should not expect one battle, but a lengthy campaign unlike any other we have ever seen. It may include dramatic strikes visible on TV and covert operations secret even in success.

It is the mention of covert operations, carries out at this point only by the CIA that shows the Bush-Cheney idea that the CIA should lead in the shadowy actions of the War on Terror. Maybe it’s got something to do with George H Bush being a former CIA director.

Osama bin Laden sits with his adviser and purported successor Ayman al-Zawahiri during an interview in Afghanistan, Barack Obama
Osama bin Laden and Ayman al-Zawahiri, current leader of Al Qaeda. REUTERS/Hamid Mir/Editor/Ausaf Newspaper for Daily Dawn (Foto: HO/Scanpix 2011)

The second authority is the ‘Al Qaeda Network Execute Order’, which reportedly allows JSOC to operate without Pentagon approval, in effect turning them into the private special forces army of the US President, and Secretary of Defence. This again is very interesting, because military operations are not subject to the same fine detail scrutiny of the Senate Intelligence Committee, infact JSOC isn’t subject to congressional oversight. So, this allows the President and Secretary of Defense to deploy JSOC to fight Al Qaeda without needing approval from the Pentagon, or to tell congress. But, at this point, only the CIA would be allowed to kill/capture Al Qaeda targets.

Secretary of Defense Donald Rumsfeld, 2003. Photo by Tech. Sgt. Andy Dunaway.

Third is an order signed by Donald Rumsfeld when he was Secretary of Defense. This allows the US military to attack Al Qaeda globally. So, now, this adds in the ability not only for JSOC to operate without Pentagon approval, or Congressional oversight, but also anywhere in the world. Talk about letting them off the leash! But, still only the CIA are approved to kill/capture Al Qaeda members.

Secretary of Defense Robert Gates, 2010. DoD photo by R. D. Ward.

So, the final authority in the piece is an order signed by Robert Gates when he was ‘SecDef’. Which orders the military to plan and co-operate on mission with the CIA. I’m guessing the basis of this was to really get down to sharing intelligence, and widening the target lists, but it ended up a little different. It resulted in joint CIA-JSOC operations, which allowed the wide authority which JSOC could operate under against Al Qaeda with the CIA approval for covert actions to kill/capture Al Qaeda members.

The most famous example of this is the Osama Bin Laden raid, Operation Neptune Spear. Technically, when JSOC carried out the raid, it was working under a CIA operation, and their presence was to be completely deniable if Seal Team 6 were caught carrying out the raid, according to Schaill’s Dirty Wars, if I remember correctly. Although how exactly you would come up with a believable cover story is beyond me.

White House Situation Room during Operation Neptune Spear, 2011. Photo by Pete Souza.

So what these authorities mean is that the Secret War on Terror, can go on targeting whoever the President and Secretary of Defense  want, without congressional oversight, with complete deniability, anywhere in the world. It sounds rather like a horrific dictator reinforcing his position with force. But I actually think it could be a positive step in targeting terrorists, if restricted correctly. Al Qaeda and other terrorist groups are split into cells, although ISIS is more concrete in its structure, this allows them to be extremely flexible, and outmaneuver traditional military tactics used against them, so this wide authority base may be necessary to defeat Al Qaeda and friends.

General McChrystal and a group of Marines from 1st Battalion, 3rd Marine Regiment, Afghanistan 2010. Photo by U.S. Army Sgt. David E. Alvarado. CC 2.0 License.

This flexibility on the behalf of the US is really exemplified by JSOCs operations in Iraq under General Stanley McCrystal. In order to defeat militant networks, McCrystal created a network of flexible forces that could plan operations and take out militant fighters faster than their organisations could replace then, resulting in those networks collapsing. It’s discussed in detail in Schaill’s Dirty Wars, I’ve yet to read Relentless Strike by Sean Naylor which is about JSOC, but I hear it’s good. It’s also discussed by McCrystal himself in this podcast.

Until next time!

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