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Joshua FoustBack to OpinionJoshua Foust

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.