When al Qaeda launched the 9/11 attacks, it also thrust the United States on a decade-long (and counting) search for the best way to combat the unconventional threat posed by terrorism. That search evolved into a competition of sorts between the military’s Special Operations Forces (SOF) and the paramilitary operatives of the Central Intelligence Agency (CIA) for the prestige and resources that went with leading the fight against terrorism. Within less than a decade, however, various officials involved in counterterrorism policy were trying to combine the two groups of operators in a way that maximized the advantages and minimized the risks and constraints of each group.
Many critics of the George W. Bush administration’s wholehearted push into the realm of shadow wars – covert operations in countries with which the United States was not at war – assumed that the situation would improve when Barack Obama became President. To the surprise of many, if not most, of his campaign supporters, however, President Obama has, in some ways, become an even more ardent supporter of shadow wars than his predecessor. And, as this article will show, just about every indication points to a further expansion of this hybrid military and intelligence activity in countries beyond war zones. It is imperative, therefore, that we more clearly understand how these shadow wars are being conducted and by whom, and whether they are subject to adequate oversight and accountability.
Words are imperfect instruments for conveying ideas, and interpreting the intended meaning of words is often a challenge, especially when more than two centuries have passed since the words were written and their meanings have evolved over the years. For example, the terms “executive power” and “declare war” had widely understood meanings when the Constitution was written. In his classic 1922 study, The Control of American Foreign Relations, Quincy Wright explained that “when the constitutional convention gave ‘executive power’ to the President, the foreign relations power was the essential element in the grant, but they carefully protected this power from abuse by provisions for senatorial or congressional veto.” Wright referred to the writings of Locke, Montesquieu, and Blackstone5 as “the political Bibles of the constitutional fathers,”6 adding: “In foreign affairs . . . the controlling
force is the reverse of that in domestic legislation. The initiation and development of details is with the President, checked only by the veto of the Senate or Congress upon completed proposals.”
To the surprise of many, it turns out that Canada’s chief security intelligence agency – the Canadian Security Intelligence Service (CSIS) –may not legally collect covert intelligence abroad. That is at least one interpretation of a Canadian Federal Court decision issued in October 2007, but only released publicly in 2008. At issue was whether the court had the jurisdiction to issue a warrant under the Canadian Security Intelligence Service Act (CSIS Act) in investigations concerning Canadians taking place overseas. CSIS had sought the warrant because the targets of the investigations, as Canadians, potentially enjoyed privacy rights under Canada’s constitutional bill of rights, the Canadian Charter of Rights and Freedoms.
Faced with this conundrum, there were two plausible courses of action open to the court. First, it could have concluded that the CSIS Act’s warrant provisions extended only as far as authorizing searches and seizures in Canada. While this approach would have left open the question whether constitutional rules applied to CSIS’s extraterritorial conduct, it would have allowed the court to avoid the incongruity of a Canadian court “legally” authorizing an invasion of privacy taking place in a foreign jurisdiction whose own laws would probably be violated by the action.
Second, the court could have reached even further and concluded that CSIS itself has no statutory authorization to conduct extraterritorial investigations, pursuant to its core, statutory mission to collect intelligence relating to threats to the security of Canada. This approach would avoid the constitutional question entirely, but with the consequence of greatly limiting the scope of CSIS’s basic jurisdictional competence.