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On Drawing a Bright Line for Covert Operations

Published online by Cambridge University Press:  27 February 2017

Loch K. Johnson
Loch K. Johnson*
Affiliation:
University of Georgia
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Extract

This analysis of covert operations, as conducted by Western intelligence services, explores the problem of assessing their effects on international order and comity. Despite a tendency of commentators to overlook this form of intervention, the topic is important; in contemporary global relations, covert acts of hostility between nations occur with a high rate of frequency.

The study is organized into three sections. The first presents a “ladder of escalation” for covert operations, one based on a rising level of intrusion abroad as policy makers climb upward from low-risk to high-risk activities. The second section briefly surveys leading ethical, philosophical and practical issues involved in trying to evaluate the effects of secret intelligence activities. And the third section offers a set of guidelines for evaluating the propriety of proposed covert operations.

Type
Research Article
Information
American Journal of International Law , Volume 86 , Issue 2 , April 1992 , pp. 284 - 309
Copyright
Copyright © American Society of International Law 1992

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References

1 On the frequency of U.S. covert operations since 1947, see L. JOHNSON, AMERICA'S SECRET POWER: THE CIA IN A DEMOCRATIC SOCIETY 103, fig. 6.1 (1989). A recent, purportedly comprehen sive survey of security studies manages to ignore covert operations altogether, focusing instead on overt (especially forcible) forms of intervention. See Walt, The Renaissance of Security Studies, 35 INT'L SECURITY STUDS. 211 (1991). For a study sensitive to the question of nonforcible intervention (both overt and covert), see Damrosch, Politics Across Borders: Nonintervention and Nonforcible Influence over Domestic Affairs, 83 AJIL 1 (1989). As Damrosch notes: “Most of the scholarly literature on [foreign] intervention in [the] internal affairs [of other nations] has focused on forcible forms of influence." Id. at 3.

2 H. KAHN, ON ESCALATION: METAPHORS AND SCENARIOS 37 (1965).

3 Id. at 38.

4 On the nonintervention norm, see Damrosch, supra note 1, at 6-13.

5 See Report of the Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States, UN Doc. A/6799, at 161 (1967), quoted in Damrosch, supra note 1, at 10-11. On the use of covert propaganda and secret political financing, see L.JOHNSON, supra note 1, at 22-26; and G. TREVERTON, COVERT ACTION: THE LIMITS OF INTERVENTION IN THE POSTWAR WORLD (1987).

6 Damrosch, supra note 1, at 11.

7 On the advantages and risks of embassy break-ins, see the testimony of former Attorney General John Mitchell, in Intelligence Activities: Hearings Before the Senate Select Comm. to Study Governmental Operations with Respect to Intelligence Activities, 94th Cong., 1st Sess. (1975), Vol. 2, Huston Plan, at 123 (chaired by Sen. Frank Church, D., Idaho) [hereinafter Church Comm. Hearings]; Richard M. Nixon, response to Interrogatory No. 17, SENATE SELECT COMM. TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES, FINAL REPORT, S. REP. NO. 755,94th Cong., 2d Sess. (1976), BK. 4, SUPPLEMENTARY DETAILED STAFF REPORTS ON FOREIGN AND MILITARY INTELLIGENCE 157-58 [hereinafter CHURCH COMM. REPS.]; id.,BK. 1, FOREIGN AND MILITARY INTELLIGENCE 123; and author's interview with James J. Angleton, former CIA Chief of Counterintelligence, L.JOHNSON, supra note 1, at 297-98 n.5.

8 Damrosch, supra note 1, at 10-11.

9 Id. at 36.

10 Id. at 46.

11 On the Son Tay prison raid, designed to free U.S. POWs in Vietnam (unsuccessfully, since the prisoners had been evacuated by the North Vietnamese three weeks earlier—an unfortunate intelli gence failure), see H. KISSINGER, WHITE HOUSE YEARS 282 (1979); and B. SCHEMMER, THE RAID (1976). On the aborted Iran rescue attempt, see Halperin & Halperin, The Key West Key,FOREIGN POL'Y, Winter 1983-84, at 114.

12 The Reagan administration evidently believed, and wanted to spread the word, that the assassina tion plot in 1984 against Pope John Paul II had been an operation by the Soviet secret service, the KGB, even though the U.S. intelligence community had no compelling evidence to this effect. See remarks by Donald Gregg, a former CIA officer on the NSC staff, in Johnson, Making the Intelligence ‘Cycle’ Work, 2 INT'L J. INTELLIGENCE & COUNTERINTELLIGENCE 17(1986-87). On a CIA counterin telligence scheme to falsify and distribute copies of Soviet Premier Nikita Khrushchev's “secret speech” denouncing the Stalin era, see Hersh, The Angleton Story, N.Y. Times, June 25, 1978, §6 (Magazine), at 13.

13 President George Bush, White House press release, Washington, D.C. (Aug. 15, 1989).

14 A memorable illustration of Soviet practice in this regard was reported by Bob Woodward of the Washington Post. According to him (on the basis of interviews with then CIA Director William Casey), the KGB obtained the quick release of three Soviet hostages held by Hezbollah terrorists in Lebanon by seizing a relative of one of the Hezbollah leaders, castrating him, stuffing his testicles in his mouth, shooting him in the head, and dumping his body at a Hezbollah site with the warning that more of the same would occur if the hostages were further detained. B. WOODWARD, VEIL: THE SECRET WARS OF THE CIA, 1981-1987, at 416 (1987).

15 On the CIA's paramilitary operations in Laos, see W. COLBY & P. FORBATH, HONORABLE MEN: MY LIFE IN THE CIA 191-202 (1978); and V. MARCHETTI &J. MARKS, THE CIA AND THE CULT OF INTELLIGENCE 205-06 (1974).

16 See, e.g.,﹜.RICHELSON, SWORD AND SHIELD: THE SOVIET INTELLIGENCE AND SECURITY APPARA TUS (1986); COMPARING FOREIGN INTELLIGENCE: THE US, THE USSR, AND THE THIRD WORLD (R. Godson ed. 1988); and R. SHULTZ & R. GODSON, DEZINFORMATSIA: ACTIVE MEASURES IN SOVIET STRATEGY (1984).

17 See, for example, the series of lead articles in 3 ETHICS & INT'L AFF. (1989); Hulnick & Mat- tausch, Ethics and Morality in United States Secret Intelligence, 12 HARV. J. L. & PUB. POL'Y 509 (1989); J. NYE, ETHICS AND FOREIGN POLICY: AN OCCASIONAL PAPER (Aspen Institute Human Studies, No. 1, 1985); Godfrey, Ethics and Intelligence, 56 FOREIGN AFF. 624 (1978); Falk, CIA Covert Action and International Law, 12 SOCIETY 39 (1975); and Damrosch, supra note 1.

18 See the useful summary of these issues in M. J. Smith, Ethics and Intervention, 3 ETHICS 8C INT'L AFF. 1 (1989).

19 On the operational codes of foreign-policy leaders, see Johnson, Operational Codes and the Predic tion of Leadership Behavior, in A PSYCHOLOGICAL EXAMINATION OF POLITICAL MAN 80 (M. Herman ed. 1977).

20 Quoted in V. MARCHETTI & J. MARKS, supra note 15, at 167.

21 Should the CIA Fight Secret Wars?, HARPER'S, September 1984, at 1, 37 (round-table discussion, remarks of George Ball).

22 Quoted inCHURCH COMM. REPS., supra note 7, BK. 1 at 9.

23 Quoted in id. at 9.

24 Should the CIA Fight Secret Wars?, supra note 21, at 44 (remarks of Ray Cline).

25 Liddy, Lecture at University of Georgia (May 4, 1986) (based on author's notes).

26 See, respectively, Beitz, Covert Intervention as a Moral Problem, 3 ETHICS & INT'L AFF. 48 (1989); and Colby, Public Policy, Secret Action, id. at 63, 69.

27 See M. WALZER, JUST AND UNJUST WARS (1977).

28 See, e.g., Colby, supra note 26, at 69. Damrosch, supra note 1, at 37, writes: “the nonintervention norm must not become a vehicle for exalting the abstract entity of the state over the protection of individual rights and fundamental freedoms."

29 See Smith, supra note 18, at 21.

30 On proportionality, see Colby, supra note 26, at 65, 66.

31 See, respectively, Treverton, Imposing a Standard: Covert Action and American Democracy, 3 ETHICS & INT'L AFF. 27, 32 (1989); and Buultjens, The Ethics of Excess and Indian Intervention in South Asia, id. at 82.

32 See Treverton, supra note 31; and Colby, supra note 26.

33 Hulnick & Mattausch, supra note 17, at 522.

34 See, e.g., R. JOHANSEN, THE NATIONAL INTEREST AND THE HUMAN INTEREST: AN ANALYSIS OF U.S. FOREIGN POLICY 386 (1980).

35 See Buultjens, supra note 31.

36 Colby, supra note 26, at 69.

37 Rep. L. Mendel Rivers (D., S.C.), quoted in McCarry, 01’ Man Rivers, ESQUIRE, October 1970, at 171.

38 On Reagan's move away from “evil empire” rhetoric toward more cordial relations with his Soviet counterpart, see the two-part series by Newhouse, Annals of Diplomacy: The Abolitionist,NEW YORKER, Jan. 2 and 9, 1989, at 37 and 51, respectively (the President's first public rejection of the "evil empire” label occurred on May 31, 1988); on Carter's reaction to the Soviet invasion of Afghan istan, see his own account in J. CARTER, KEEPING FAITH 471-89 (1982).

39 See Kirkpatrick, Dictators and Double Standards,COMMENTARY, November 1979, at 34; and, with a far different conclusion, Damrosch, supra note 1.

40 Sec Johnson, The CIA and the Media, 1 INTELLIGENCE & NAT'L SECURITY 143 (1986).

41 For Colby on the decline of the Soviet ideological threat (several years before the glasnost era), see Interview with William E. Colby, U.S. NEWS & WORLD REP., July 3, 1978, at 37, 39. On Casey's aggres sive approach to the use of strategic intelligence, see Alpern, America's Secret Warriors,NEWSWEEK, Oct. 10, 1983, at 38; and Morris, William Casey's Past, Atlanta Const., Aug. 31, 1987, at Al 1, col. 4. See also CIA Director Stansfield Turner's higher tolerance for the Marxist regime in Nicaragua than that expressed by his successor, William Casey: From an Ex-CIA Chief: Stop the ‘Covert’ Operation in Nicaragua, Wash. Post, Apr. 21, 1983, at CI, col. 2.

42 See Johnson, Covert Action and Accountability: Decision-Making for America's Secret Foreign Policy, 33 INT'L STUDS. Q. 81, 87 (1989).

43 Conversations with Air Marshal Sir Ewan Jamieson (in charge of New Zealand's counterintelli gence at the time of the investigation into the Rainbow Warrior bombing), Conference on Military Strategy, Georgia Institute of Technology, Atlanta, Georgia (Aug. 24-26, 1989).

44 Johnson, supra note 42, at 87.

45 As one illustration of the distinction made in government circles between peacetime and wartime use of strategic intelligence, the reporting requirements of the Hughes-Ryan Act were considered null and void when the President was acting under the provisions of the War Powers Resolution (though this exemption was removed by legislators in 1980 with passage of the Intelligence Oversight Act, more formally known as the Accountability for Intelligence Activities Act, tit. V of Intelligence Au thorization Act for Fiscal Year 1981, Pub. L. No. 96-450, §407(b)(l), 94 Stat. 1975, 1981 (1980), 50 U.S.C. §413 (1988) (amending National Security Act of 1947).

46 Mount, Spook's Disease,NAT'L REV., Mar. 7, 1980, at 300, 300.

47 See P. WYDEN, BAY OF PIGS: THE UNTOLD STORY (1979).

48 Beitz, supra note 26, at 49.

49 On this “Gang of Eight” leading legislators, see L. JOHNSON, supra note 1, at 222-29. The 1991 intelligence oversight amendments, tit. VI of Intelligence Authorization Act, Fiscal Year 1991, Pub. L. No. 102-88, 105 Stat. 429, 441 (adopted Aug. 14, 1991), continue this procedure. Id. at 443, §503(c)(2).

50 For the 1980 Intelligence Oversight Act, see supra note 45. On the strict adherence to this law before the Iran-contra violation, see H.R. REP. NO. 705, 100th Cong., 2d Sess. 54 (1988). On the debate over prior notice, see L. JOHNSON, supra note 1, at 225-28. The 1991 Intelligence Oversight Authorization Act, supra note 49, permits the executive branch more leeway on reporting ("in a timely fashion"—though only in times of “extraordinary circumstances"; 105 Stat, at 443, §503(c)(2) and (3)).

51 See, e.g., Elliott Abrams Is Guilty, N.Y. Times, Oct. 11, 1991, at A14, cols. 1-2 (unsigned editorial, citing to this effect State Department official Elliott Abrams, convicted of lying to Congress about the illegal supply of weapons to the contras during the Iran-contra affair). For an argument against any serious legislative oversight of intelligence, see Seabury, A Massacre Revisited, 7 FOREIGN INTELLI GENCE LITERARY SCENE 1, 2 (1588).

52 Treverton, supra note 31, at 43.

53 For Poindexter's statement, see 8 Hearings Before the Senate Select Comm. on Secret Military Assistance to Iran and the Nicaraguan Opposition and House Select Comm. to Investigate Covert Arms Transactions with Iran, 100th Cong., 1st Sess. 159 (1987) (chaired by Sen. Daniel K. Inouye, D., Haw., and Rep. Lee H. Hamilton, D., Ind.) [hereinafter Inouye-Hamilton Hearings].

54 ’ Id. at 240-41; see alsoREPORT OF THE CONGRESSIONAL COMMITTEES INVESTIGATING THE IRAN-CONTRA AFFAIR, S. REP. No. 216 & H. REP. No. 433,100th Cong., 1st Sess. 333 (1987) [hereinafter INOUYE-HAMILTON REP.]. For an overview of the Iran-contra affair, see T. DRAPER, A VERY THIN LINE: THE IRAN-CONTRA AFFAIR (1991).

55 See, for example, Vice Admiral Poindexter's testimony, Inouye-Hamilton Hearings, supra note 53; INOUYE-HAMILTON REP., supra note 54, at 16, 339; and REPORT OF THE PRESIDENT'S SPECIAL RE VIEW BOARD (1987) (Tower Commission report).

56 As Justice Brandeis put it in his famous dictum, “The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power.” Myers v. United States, 272 U.S. 52, 293 (1926).

57 Fund-raising letter to “Fellow American,” signed by John M. Poindexter, Rear Admiral, USN (Ret.), and reading in part: “I must now face the liberals’ accusations surrounding the Tran-Contra affair.’ And as I stand, one man, alone against the massive onslaught of liberal special interests who want to imprison me for serving my country, I must turn to you for help. . .” (undated, but received by the author in August 1989).

58 SeeINOUYE-HAMILTON REP., supra note 54, at 431-585 (Minority Report).

59 See W. COHEN & G. MITCHELL, MEN OF ZEAL (1988); and Drew, Letter from Washington,NEW YORKER, Mar. 30, 1987, at 111. The case against North was dismissed by a U.S. district court in 1991 after the Iran-contra independent prosecutor announced that he would abandon the prosecution because the immunity granted to North by Congress in 1987 (to gain his testimony in hearings) had created too great an obstacle. See Johnston, Judge in Iran-Contra Trial Drops Case Against North after Prosecutor Gives Up, N.Y. Times, Sept. 17, 1991, at Al, col. 6, A12, cols. 3-6.

60 See the Bush administration's $9 million request to Congress (September 21, 1989) for open support of the anti-Sandinista candidate in Nicaragua's approaching presidential election. Shepard, Bush Seeks $9 million for Nicaraguan Opposing Ortega in Presidential Bid, Atlanta J. & Const., Sept. 22, 1989, at A4„col. 1.

61 For the Vance and Clifford testimonies, see Church Comm. Hearings, supra note 7, Vol. 7, Covert Action, at 50-55. For the Church Committees’ conclusion, see CHURCH COMM. REPS., supra note 7, BK. I at 159; for the Inouye-Hamilton Committees’ conclusion, see INOUYE-HAMILTON REP., supra note 54, at 383.

62 The Chairman of the Senate Select Committee on Intelligence, David L. Boren (D., Okla.) has suggested that, in times of extraordinary circumstances, the executive branch should be allowed to report to just the Speaker and House Minority Leader and their Senate counterparts, a “Gang of Four.” See Senator Boren's remarks, Association of Former Intelligence Officers (Mar. 28, 1988), quoted in the Association's newsletter, PERISCOPE, Spring 1988, at 8. This recommendation was also advanced in the “Minority Report” of the Inouye-Hamilton Committees, INOUYE-HAMILTON REP., supra note 54, at 585.

63 See the former Secretary's account in his memoirs, C. VANCE, HARD CHOICES: CRITICAL YEARS IN AMERICA'S FOREIGN POLICY 598-413 (1983).

64 See Johnson, Strategic Intelligence: An American Perspective, 3 INT'L J. INTELLIGENCE & COUNTERIN TELLIGENCE 299, 323 (1990).

65 On U.S. intelligence ties with Noriega, see Drugs, Law Enforcement and Foreign Policy: Hearings Before the Senate Subcomm. on Terrorism, Narcotics, and International Operations, 100th Cong., 2d Sess. 234-43 (1989); on Barbie, see Saxon, Klaus Barbie, Lyons Nazi Leader, Dies, N.Y. Times, Sept. 26, 1991, at C19, col. 4; and on CIA ties with organized crime in the 1960s, see SENATE SELECT CoMM. TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES, ALLEGED ASSASSINATION PLOTS INVOLVING FOREIGN LEADERS: INTERIM REPORT, S. REP. NO. 465, 94th Cong., 1st Sess. (1975). On refusing intelligence cooperation with regimes engaged in human rights violations, see Farer, Low-Intensity Conflict and International Order: The Prospect for Consensus 63 (paper, U.S. Institute of Peace Project on Strengthening World Order and the United Nations Charter System against Secret Warfare and Low-Intensity Conflict, 1990).

66 On the phenomenon of banishing intelligence and other experts from high councils when key decisions are being made (and related policy-making pathologies), see I. JANIS, GROUPTHINK (2d ed. 1982); Jervis, Intelligence and Foreign Policy, 11 INT'L SECURITY 141 (1986-87); and Betts, Analysis, War, and Decision: Why Intelligence Failures Are Inevitable, 31 WORLD POL. 61 (1978).

67 On this theme, see Damrosch, supra note 1, esp. at 37-50; and Farer, supra note 65.

68 However, in the two exceptional cases mentioned in the preceding paragraph, if the regime leader is killed during the destruction of the chemical-biological and nuclear facilities (in the first instance), or during his arrest (in the second instance), this unintended result is defensible in light of the need to protect large civilian and innocent populations—a consequentialist verdict that in these situations seems compelling. On the illegality of assassinations, see Exec. Order No. 12,333, signed by President Ronald Reagan on December 4, 1981, 1981 PUB. PAPERS (RONALD REAGAN) 1128. The order continued a prohibition against assassination initiated by President Gerald R. Ford, Exec. Order No. 11,905, February 18, 1976, 1976-77 PUB. PAPERS (GERALD R. FORD) 349. Since President Bush has never revoked the order, it remains in force. See Parks, Memorandum of Law: Executive Order 12333 and Assassination,ARMY LAW., December 1989, at 4. Pointing to Article 2(4) of the UN Charter, one authority maintains: “Assassination is unlawful killing, and would be prohibited by international law even if there were no executive order proscribing it.” W. Hays Parks, Chief, International Law Branch, International Affairs Division, Department of the Army, id.

69 S. REP. NO. 465, supra note 65.

70 Interview with the author, McLean, Virginia (May 1, 1991).

71 Fisher, The Fatal Flaw in Our Spy System, Boston Globe, Feb. 1, 1976, at A9, col. 4.

72 Remarks, Rep. Steven J. Solarz (D., N.Y.) (C-Span television broadcast, May 22, 1988).

73 For evidence on this point, see generally Beitz, supra note 26; L. JOHNSON, supra note 1; J. PRADOS, PRESIDENTS’ SECRET WARS: CIA AND PENTAGON COVERT OPERATIONS SINCE WORLD WAR II (1986); G. TREVERTON, supra note 5; and P. WYDEN, supra note 47. * Of the Board of Editors. The author was General Counsel for the Office of the U.S. Trade Representative in the mid-1970s. Some of the arguments and reflections in this article are derived from this and similar experience. The author would like to express gratitude for the counsel arid advice on various drafts of this article from Professors William Davey, Francis Jacobs, Richard Lauwaars, Meinhard Hilf, Marc Maresceau, Mitsuo Matsushita, Henry Schermers, Eric Stein and Pieter van Dijk. In addition, the author would like to express his gratitude for information received from Carlos Bernal of Mexico; Thomas Cottier of the Government of Switzerland; Professor Yuji Iwasawa of Osaka City University, Japan; Professor Autar K. Koul of the University of Delhi, India; and Matthew Schaefer (regarding Australia). The author would also like to recognize the able research assistance of Yves Renouf and Daniel Nelson, students at the University of Michigan Law School.