Intelligence

Special Ops, CIA Mix In War, Stir Legal Questions

Special Ops, CIA Mix In War, Stir Legal Questions - from TBO.com

By RICHARD LARDNER rlardner@tampatrib.com
Published: Feb 29, 2004

TAMPA - Since the Sept. 11 attacks, the Bush administration progressively has blurred the line distinguishing CIA activities from military operations handled by U.S. Special Forces, according to military lawyers and national security analysts.
Although the integration has produced powerful antiterrorism capabilities, the merger has raised a number of complex political and operational issues that need be addressed to ensure this potent combination remains within legal and ethical bounds, they said.

The issues are especially relevant to U.S. Special Operations Command, based at MacDill Air Force Base. SoCom manages close to 50,000 special forces and has emerged as one of the military's most prominent players in the global war on terrorism.

``The president has committed us to a pre-emptive strategy, and that might require us to put forces in places and under circumstances that require new and creative ways of doing business,'' said retired Army Col. Michael Pheneger, former intelligence director at SoCom.

In Afghanistan, CIA units and Special Forces were on the ground a few weeks after the attacks in New York and the Pentagon. That cooperation continued in Iraq.

CIA paramilitary operatives work undercover, operating much like Special Forces and using some of the same equipment.

Meanwhile, Defense Secretary Donald Rumsfeld has boosted SoCom's budget and given the command expanded authority to go after terrorist networks. Rumsfeld has been criticized for operating with too few controls and for intruding on the CIA's territory.

Defense officials said the issue is not about turf and control. It's about allowing Special Forces to react quickly when information is received so a critical target can't slip away.

Boundaries Being Erased

The working relationship is not a new one, with joint operations between the military and CIA dating back decades. Before al-Qaida and other terrorist groups emerged as major threats, more effort was made to separate the two communities, which are governed by separate legal authorities and have different cultures and methods of operation.

``What you're looking at are different resources, each with unique capabilities,'' Pheneger said. ``If you can orchestrate these capabilities, that's the way to go. But there are issues to be resolved.''

A significant issue relates to denial. The CIA exists in large part to conduct missions unacknowledged by the U.S. government. Yet the more often Special Forces support those covert operations, the greater the risk of linking them to the United States, according to Army Col. Kathryn Stone, staff judge advocate at U.S. Southern Command in Miami.

``As the size of the operation increases, secrecy becomes more problematic, particularly if military or paramilitary forces are involved,'' Stone wrote last year in an Army War College study. ``Forces mean people and people talk.''

CIA activities must comply with U.S. law, but much of what the CIA does is intended to skirt international law. The Defense Department is bound by both, according to Stone.

Although the war on terrorism is not a traditional war as defined by the Geneva and Hague conventions, U.S. military forces must comply with these rules as they fight in Iraq, Afghanistan and elsewhere. As the CIA and Special Forces work together, the military must be careful to remember the distinction, said Stone, who discussed her study in an interview.

Jennifer Kibbe, a national security analyst with The Brookings Institution in Washington, argued existing U.S. laws are too vague to cover a war in which the enemy is not linked to a country. The lack of clarity has allowed the Pentagon too free a hand, she said, citing Rumsfeld's interest in establishing ``hunter-killer'' teams.

There's less control over the military's planning system than the CIA's, she said.

``The way the military's system works is very different. They can come up with a mission and go ahead and execute it,'' Kibbe said. ``Their covert actions can be completely developed in-house.''

The danger, she said, is if U.S. forces track a terror suspect into a country such as Yemen or Somalia but end up capturing or killing the wrong person. Such an error would undercut worldwide support for the war, she said.

Questions Of Identity

Appearance is important on the integrated battlefield. CIA paramilitary personnel must blend into the environment. To do so, they operate without uniforms or identification as U.S. government employees. They are in the cold.

Accordingly, CIA operatives have no expectation of protections under the Geneva Conventions that govern the treatment of prisoners of war, Stone said. CIA operatives accept this possibility as part of the job.

The laws of war require military personnel to distinguish themselves, even when conducting covert operations.

W. Hays Parks, a senior Defense Department lawyer, wrote that neither the war on terrorism nor being a Special Forces member eases the requirement that full uniforms be worn. Even a minor deviation from that rule must be approved at the highest levels, Parks wrote in an article published last fall in the Chicago Journal of International Law.

Military personnel cannot be forced to purposefully hide their military identities, particularly if doing so would cause them harm, Stone said. If commandos were captured with CIA personnel during a combat operation, a variety of difficult scenarios could emerge, she said.

What if the Special Forces received Geneva Convention protections and the CIA operatives did not? What if the enemy could not distinguish between the two and decided they were all unlawful combatants? How would senior government officials react in either case? Would they demand protection for the soldiers but not for the CIA operatives?

These are critical questions, said Stone, noting the Bush administration's decision to classify Taliban and al-Qaida members as enemy combatants, not necessarily entitled to POW status.

It's possible American forces might be treated the same by a hostile nation, and commandos need to be prepared for that, Stone said.

``It's like having surgery,'' Stone said. ``There needs to be informed consent.''

Parks wrote that U.S. forces must be ``fully aware of the risks they may face if captured if they fail to comply with the laws of war.''

The CIA wouldn't comment on the integration of its personnel with Special Forces. Special Operations Command did not respond to a request for comment.

Communication Is Key

In advance testimony delivered to the Senate Armed Services Committee in July, Gen. Bryan Brown, SoCom commander, said the integration of Special Forces with conventional troops in Iraq ``was a major success.'' Brown didn't mention CIA involvement.

An after-action report on the Iraq war prepared last year by the 3rd Infantry Division offers a glimpse into the highly classified world of special operations.

In Iraq, the Special Forces- CIA commingling included conventional forces and ``was unparalleled in modern history,'' the division's report said.

The alliance produced many benefits and a few headaches.

The 3rd Infantry's size and armored power provided Special Forces and intelligence operatives, referred to in the report as ``other government agency elements,'' with a ``mobile and secure base'' from which they could operate.

``Overall, the relationship was a positive one in spite of the cultural differences between SOF and conventional forces that often create friction points between these elements,'' the report said.

Reluctance to share information was a problem. Special Forces and CIA personnel did not want to disclose much about their secret operations with the division staff for fear the mission would be compromised. This prevented the staff from learning details that might have given them an edge in combat, the division's report said.

Communication on the battlefield is critical. According to Pheneger, if an American division commander were ordered to take out an important target but detected Special Forces in the area, he would be faced with a difficult choice: Hit the target and risk harming U.S. forces or pass on the target until the Special Forces were out of the area.

Situations such as this needed to be practiced during military exercises, Pheneger said.

Guidelines Needed

Stone, the Southern Command attorney, said use of CIA operatives and Special Forces should continue because it's an effective way to fight terrorism. She recommends guidelines be developed to better manage these operations and to improve the exchange of information.

Elizabeth Rindskopf Parker, CIA general counsel from 1990 to 1995, said the challenge is to develop laws and policies reflecting the new nature of warfare.

Enemies are declared and troops assembled, even though no formal declaration of war has been issued.

``It's not the absence of a declaration that is problematic here, but rather the nature of the present `war on terrorism,' which lacks bounds of time and space,'' she said. ``It's for that reason there is a blurring. There's a blurring by what we mean by war.''

Reporter Richard Lardner can be reached at (813) 259-7966.

February 29, 2004 at 10:21 AM in CIA | Permalink | TrackBack (40) | Top of page | Blog Home