Monday, December 28, 2009

CIA Paramilitary Operations: Issues for Congress

Oversight Issues
Congress may choose to review past or current paramilitary operations undertaken by the CIA
and might also choose to assess the extent of coordination between the CIA and DOD. P.L. 108-
458 required that a report be submitted to defense and intelligence committees by June 2005
describing procedures established in regard to coordination and deconfliction of CIA and DOD
operations. That report provided an opportunity to indicate how initiatives by the executive
branch have addressed relevant issues.

CIA has not maintained a sizable paramilitary force “on the shelf.” When directed, it has built
paramilitary capabilities by using its individuals, either U.S. or foreign, with paramilitary
experience under the management of its permanent operations personnel in an entity known as the
Special Activities Division. The permanent staff would be responsible for planning and for
maintaining ties to former CIA officials and military personnel and individuals (including those
with special language qualifications) who could be employed should the need arise. Few
observers doubt that there is a continuing need for coordination between the CIA and DOD
regarding paramilitary capabilities and plans for future operations. Furthermore, many observers
believe that the CIA should concentrate on “filling the gaps,” focusing on those types of
operations that DOD is likely to avoid. Nevertheless, they view this comparatively limited set of
potential operations to be a vitally important one that should not be neglected or assigned to
DOD. There may be occasions when having to acknowledge an official U.S. role would preclude
operations that were otherwise considered vital to the national security; the CIA can provide the
deniability that would be difficult, if not impossible, for military personnel.12

Potential Legal Considerations
Some experts believe that there may be legal difficulties if SOF are required to conduct covert
operations. One issue is the legality of ordering SOF personnel to conduct covert activities that
would require them to forfeit their Geneva Convention status to retain deniability. To operate with
deniability, SOF could be required to operate without the protection of a military uniform and
identification card which affords them combatant status under the Geneva Convention if
captured. Also, covert operations can often be contrary to international laws or the laws of war
and U.S. military personnel are generally expected to follow these laws.13

Traditionally, the public text of intelligence legislation has included few provisions regarding
paramilitary operations; levels of funding and other details are included in classified annexes
which are understood to have the force of law. The House and Senate Intelligence Committees do
have considerable influence in supporting or discouraging particular covert actions. In a few cases
Congress has formally voted to deny funding to ongoing covert operations. Special Forces,
however, fall under the House and Senate Armed Services Committees, and it is unclear how
Congress would handle oversight if covert operations are shifted to SOF as well as how disputes
between the intelligence and armed services committees would be dealt with.

Endnotes

12 See U.S. Congress, Senate Select Committee on Intelligence, Authorizing Appropriations for Fiscal Year 1991, 102nd
Cong., 1st sess., S.Rept. 102-85, pp. 42-48.

13 Cole Kathryn Stone, All Necessary Means—Employing CIA Operatives in a Warfighting Role Alongside Special
Operations Forces, U.S. Army War College Strategy Research Project, July 4, 2003, p. 13.

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