Category Archives: Vol. 5 No. 2

Shadow Wars | This issue examines the law and policy regarding U.S. paramilitary operations, including use of drones, payment of contractors to spy, and training of local operatives to chase terrorists in what The New York Times has described as a “shadow war against Al Qaeda and its allies.”

The Evolution of Law and Policy for CIA Targeted Killing

Just suppose. The Attorney General, lanky as the President, walks into the Oval Office to join a meeting. The top law enforcement officer is slumped down with apparent bad news. He avoids eye contact with the Commander-in-Chief. “Mr. President,” he says looking down at the coffee table, “the ACLU believes our drone program is illegal.” Silence. (The President and the Attorney General both, of course, maintain links to the human rights community, an important part of their political base.) The President’s other advisers fidget and twitch. The Vice President adjusts the
coaster under his drink. Beads of perspiration form on some faces. The Secretary of State and the Secretary of Defense look for the exit; the law is not their thing.

The President is cool. “Could you be more specific,” he says, tapping his finger on a black briefing book.

The Attorney General looks up from the table. “The drone strikes in Pakistan. Remember, the program Leon was not supposed to talk about with the media.”

The President smiles. “Yes, I know that. But which laws are they talking about?”

After an awkward pause, the President, himself a highly sophisticated lawyer, suggests, “Let’s talk this through some more.” The Attorney General agrees. After the lawyer-to-lawyer exchange, the other advisers relax. Maybe the CIA drone strikes are not illegal after all. Or maybe the apparent illegality does not matter that much. The Vice President takes a sip of his drink. And the President asks for tea and coffee to be served. No one wants to leave the room after all. They open their briefing books instead.

This scenario emphasizes a simple point: President Obama, a Harvard Law School graduate, a former teacher of constitutional law at the University of Chicago and a Nobel Peace Laureate, must believe that he has the authority to order the CIA to fire missiles from drones to kill suspected terrorists. Not everyone agrees with him, though.

White House Decisionmaking Involving Paramilitary Forces

The standard framework for understanding presidential decision making in projecting American power and influence into other countries is to assume that the Administration develops diplomatic, military or covert options which the President then assigns to State, Defense or the CIA (sometimes in combination). This framework is incomplete, because diplomacy is carried on not only by officers of the United States but also by an “invisible presidency” of informal emissaries. Military operations are conducted not only by members of the U.S. Armed Forces – whether conventional or special operations forces – but also by others with arms (paramilitaries) with whom American armed forces or intelligence agents propose to have (or already have) a formal or informal working arrangement. Covert operations are supplied, financed and conducted not only by the CIA (and recently the Pentagon), but also by private organizations with ties to the government, such as in the Iran-Contra Affair, when arms dealers were granted extraordinary access to intelligence resources and stocks of military weapons.

Intelligence Analysis and Planning for Paramilitary Operations

Paramilitary operations – “PM ops” in American spytalk – may be defined as secret war-like activities. They are a part of a broader set of endeavors undertaken by intelligence agencies to manipulate events abroad, when so ordered by authorities in the executive branch. These activities are known collectively as “covert action” (CA) or, alternatively, “special activities,” “the quiet option,” or “the third option” (between diplomacy and overt military intervention). In addition to PM ops, CA includes secret political and economic operations, as well as the use of propaganda. Often
used synergically, each form is meant to help nudge the course of history – insofar as this is possible – in a direction favorable to the United States. Since the creation of the modern U.S. “intelligence community” by way of the National Security Act of 1947, PM ops have been conducted by the Central Intelligence Agency (CIA), known by insiders as “The Agency.”

This article offers a brief history of America’s paramilitary activities, with special attention to the relationship between intelligence analysis – the attempts by the CIA and its fifteen companion agencies to understand contemporary world events and forecast how they will unfold – and the use of paramilitary forces to achieve U.S. foreign policy goals.