Review of “Shadow Wars”

September 24, 2012 | By William C. Snyder

“Particularly since 9/11, the lines between the military and the intelligence community have gotten fuzzy,” observes Rosa Brooks, a Georgetown University Law Professor, on September 20, 2012 in an article entitled, “Shadow Wars: What’s the difference between a spook and a special operator?” in Foreign Policy Magazine.

In our Prosecuting Terrorists course, we talk a great deal about the breakdown of “The Wall” between law enforcement and the intelligence community.  That term became popularized in the debate about amendments to the Foreign Intelligence Surveillance Act (FISA), which is covered to differing extents in our coursesNational Security Law and Counterterrorism Law.  Thus, they both examine the new fuzziness in the lines between intelligence and law enforcement.

Those latter two courses, unlike the former, also address the issues examined by Professor Brooks’s article.  The legal limits between the military and the intelligence community have been an issue at least since the National Security Act of 1947 created the Central Intelligence Agency (CIA), and the practical limits were contested before then.  Much of the intelligence community is within the Department of Defense, and the two have shared surveillance platforms (e.g., U-2, A-12/SR-71).

The legal issues presented by blurring the distinction between the military and the intelligence community is perhaps best seen in the context of targeting killings.  Some targeted killings, apparently, are performed from unmanned aerial vehicles (UAVs) operated by the U.S. Air Force, and others from similar vehicles operated by the CIA.  The legal regime governing killings by the military in an active war zone and by the intelligence community elsewhere are not the same.

In time, I believe that the line between the military and law enforcement will become more of an issue because of cyberspace.  A theft or break-in at a local business normally would have been a matter for the local police.  Now, however, the break-in may occur via networked computers from the far side of the world.  Protecting the homeland, including private property in the homeland, from outside destruction traditionally has been the province of the military.   The military will be a natural resource to call upon in cyberspace for additional reasons: 1) the break-ins or thefts are often the work of foreign government agencies; 2) the aggregate loss of data poses a threat to national security; and 3) in the National Security Agency (NSA), the military has the expertise that law enforcement lacks.  And, since the the NSA is a part of the intelligence community, we really face the blurring of lines between all three: the military, law enforcement, and the intelligence community.

For now, Professor Brooks raises these issues:

The increasing fuzziness of the line between the intelligence community and the military creates confusion and uncertainty: Who decides which agency should take the lead, and on what basis? How are activities coordinated and de-conflicted? What’s the chain of command? What law governs each entity’s activities? Must the CIA comply with the laws of war? Does covert military activity risk depriving the military personnel involved of protection under the Geneva Conventions? No one seems to know — or at least, no one’s saying.

Although it is not meant to provide in-depth analysis or answers, I recommend her article to my students for the purpose of identifying issues.