Side-stepping the Law

Seymour Hersh got the story first, and like his scoop on Abu Ghraib, his piece on Pentagon efforts to set up its own covert ops unit looks like it will have legs. In today's Washington Post we get some more details on Rumsfeld's new intelligence apparatus, designed to circumvent both the CIA and Congressional oversight.

Pentagon officials emphasized their intention to remain accountable to Congress, but they also asserted that defense intelligence missions are subject to fewer legal constraints than Rumsfeld's predecessors believed. That assertion involves new interpretations of Title 10 of the U.S. Code, which governs the armed services, and Title 50, which governs, among other things, foreign intelligence.

Under Title 10, for example, the Defense Department must report to Congress all "deployment orders," or formal instructions from the Joint Chiefs of Staff to position U.S. forces for combat. But guidelines issued this month by Undersecretary for Intelligence Stephen A. Cambone state that special operations forces may "conduct clandestine HUMINT operations . . . before publication" of a deployment order, rendering notification unnecessary. Pentagon lawyers also define the "war on terror" as ongoing, indefinite and global in scope. That analysis effectively discards the limitation of the defense secretary's war powers to times and places of imminent combat.

Under Title 50, all departments of the executive branch are obliged to keep Congress "fully and currently informed of all intelligence activities." The law exempts "traditional . . . military activities" and their "routine support." Advisers said Rumsfeld, after requesting a fresh legal review by the Pentagon's general counsel, interprets "traditional" and "routine" more expansively than his predecessors.

"Operations the CIA runs have one set of restrictions and oversight, and the military has another," said a Republican member of Congress with a substantial role in national security oversight, declining to speak publicly against political allies. "It sounds like there's an angle here of, 'Let's get around having any oversight by having the military do something that normally the [CIA] does, and not tell anybody.' That immediately raises all kinds of red flags for me. Why aren't they telling us?"

We've seen this kind of legal side-stepping before, notably with Alberto Gonzales's efforts to find a way around those pesky laws prohibiting torture. And while it doesn't seem to me that that giving the Pentagon the authority to run its own covert operations is a good idea, I'll echo Kevin Drum here and suggest that such an important decision deserves to be debated in public, not implemented in secret. If anything, given the poor track records of those pushing for these additional capabilities, there deserves to be an extra amount of transparency now, not less.