Alpena Community College Operation Neptune Spear Paper Textbook: All Chapters All Lectures Link (website): Tiffin Library Minimum of 5 reliable/academic/li

Alpena Community College Operation Neptune Spear Paper Textbook: All Chapters
All Lectures
Link (website): Tiffin Library
Minimum of 5 reliable/academic/library resources

Introduction
Choose an operation from chapter 2. Using open source material and the resources above as references, analyze a covert operation. Also, consider the elements of covert action that are discussed in the text.

You may also utilize some of the links and resources from all the weeks of this course if you would like.

Paper Structure
You are to make a report on the viability of the operation you chose. Below are some prompts to guide you:

Begin with assessing the objectives.
Assess the accounting of all necessary preparations, equipment, and logistics, etc.
Was there an established contingency basis?
Explain through your assessment, how the plan was executed, and explain the recovery phase, explaining how the personnel was accounted for and, how the objectives were achieved.
Provide an overall assessment of the success or failure of the operation.
What would you recommend have been done differently?

Writing Requirements (APA format)

8-10 pages (approx. 300 words per page), not including title page or references page
1-inch margins
Double spaced
12-point Times New Roman font
Title page (Spaced on the page according to APA standards)
Running header: SHORT TITLE IN CAPS with page number 1
Name of paper: – Only the first letter capitalized
Student’s name
Date submitted
Course number and name
References page

Grading and Assessment

This activity will be graded based on the Written Analysis Grading Rubric.

Learning Outcome(s): 1, 2, 3, 4, 5, 6, 7
1. Assess the theoretical effectiveness of intelligence and covert action with regard to analyzing governmental structure and national security policy.
2. Identify geographic location of nation/states.
3. Define the U.S. Intelligence Community.
4. List the different kinds of intelligence and examine how it is gathered.
5. Examine the history and structure of U.S. intelligence.
6. Identify and explain the intelligence cycle and apply the cycle to various situations.

7. Appraise ethical and moral issues in intelligence.

Course Topics:

Defining intelligence and the intelligence process

The Development of Intelligence The evolution of the U.S. Intelligence Community

The Intelligence Process Intelligence Collection Analysis

Counterintelligence

Covert Action

Policy Making

Oversight Nation-States T

ransnational Issues

Ethical and Moral Issues

Intelligence Reform The Covert Action Statute:
The CIA’s Blank Check?
Major Peter C. Combe II*
. . . [T]hese CIA directives are not sufficient. Administrations change, CIA
directors change, and some day in the future what was tried in the past may
once again become a temptation. Assassination plots did happen. It would be
irresponsible not to do all that can be done to prevent their happening again.
A law is needed.1
INTRODUCTION
In October 2015, a New York Times article described how U.S. government
attorneys had crafted a legal justification for the raid to kill or capture Osama
bin Laden.2 In the article, journalist Charlie Savage made the assertion that the
administration’s attorneys had what they considered a “trump card”; specifically, they maintained that the covert action statute allowed the president to
authorize an action that would violate international law.3 In short order the
* Judge Advocate, United States Marine Corps. Presently assigned as Operational Law Attorney,
International & Operational Law Branch, Judge Advocate Division, Headquarters Marine Corps.
LL.M., 2015, The Judge Advocate General’s School; J.D., 2008, University of Houston; B.S., 2003
Cornell University. Previous assignments include Legal Services Support Section – National Capital
Region, Marine Corps Base Quantico, Virginia, 2010-2014 (Deputy Officer in Charge, Legal Services
Support Section, 2013-2014; Senior Defense Counsel, 2012-2013; Defense Counsel, 2011-2012; Trial
Counsel, 2010-2011); Operational Law Attorney, International Security Assistance Force/United States
Forces-Afghanistan, 2013; Platoon Commander, Officer Candidates School, Marine Corps Base Quantico, Virginia, 2011. Member of the State Bar of Texas. This article represents the opinions of the
author, and does not represent the opinions or policy of the U.S. Marine Corps, the Department of
Defense, or the United States Government. © 2017, Peter C. Combe II.
1. Interim Report: Alleged Assassination Plots Involving Foreign Leaders, S. REP. NO. 94-465, at
282-83 (1975) (hereinafter, Church Committee Report). In 1975, in response to revelations of abuse,
including domestic spying and assassination plots, by various U.S. intelligence and law enforcement
agencies, both the House of Representatives and the Senate convened committess to investigate these
allegations and make recommendations to prevent them from reoccurring in the future. The Senate
Convened the Church Committee, which published its report in 1975. The House Permanent Select
Committee on Intelligence convened the Pike Committee (named after the Committee Chairman, Otis
G. Pike). While the Pike Committee Report was never published, it was leaked to the news media. See,
e.g., Investigation of Publication of Select Committee on Intelligence Report, 94th Cong. 2 (1976). The
1975 Church Committee interim report recommended a statutory ban on assassinations in light of
revelations concerning CIA assassination plots. The statutory ban never materialized, but Executive
Order 12333 (1981) represents an attempt to ban assassinations in response to these Congressional
inquiries. 50 U.S.C. § 3093 (first passed in 1991) represents a compromised attempt to provide a degree
of legislative branch oversight of executive branch covert actions – including those which may involve
lethal force.
2. Charlie Savage, How 4 Federal Lawyers Paved the Way to Kill Osama bin Laden, N.Y. TIMES
(Oct. 28, 2015), http://www.nytimes.com/2015/10/29/us/politics/obama-legal-authorization-osama-binladen-raid.html?hp&action⫽click&pgtype⫽Homepage&module⫽first-column-region®ion⫽topnews&WT.nav⫽top-news&_r⫽2.
3. Id.
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blogosphere erupted in criticism.4 International legal scholars argued that all
treaties are the law of the land, that the Central Intelligence Agency (CIA) is
bound by treaty obligations whether those treaties are “self-executing” or not,
and that customary international law is also the domestic law of the United
States.5 However, this position appears to be in contrast with the official view of
the CIA as expressed in a number of public fora.
Former CIA General Counsel Stephen Preston articulated the legal framework that is generally applicable to CIA covert actions.6 Preston indicated that
there are three overarching principles that apply to CIA operations: (1) all CIA
operations must be properly authorized under U.S. law; (2) all CIA activities
must comply with governing law and policy; and (3) CIA operations are subject
to strict internal and external scrutiny.7 Additionally, Preston indicated that
international law principles “may be applicable.”8 At least one international
legal scholar noted that this reasoning appeared to relieve the CIA from the
requirement to comply with international law. This conclusion was based on
Preston’s reference to international law “principles,” as opposed to rules, and
his indication that such principles “may” be applicable to a given CIA operation.9 Current CIA General Counsel Caroline Krass expressed a similar view in
written responses to queries from Congress in advance of her confirmation
hearing. Specifically, Krass indicated that 50 U.S.C. § 3093 stated that the
president may not authorize an action that would violate the Constitution or any
4. One commenter on the blog OPINIO JURIS has proposed that imprisonment may change an
attorney’s views on international law vis-à-vis U.S. law, thus implying that the administration and
attorneys are guilty of criminal malfeasance in their actions and legal advice. Benjamin Davis,
Comment to Contra CIA, Non-Self-Executing Treaties Are Still the Supreme Law of the Land, OPINIO
JURIS (Oct. 29, 2015, 9:01 PM), http://opiniojuris.org/2015/10/28/contra-cia-non-self-executing-treatiesare-still-the-supreme-law-of-the-land/. Another commenter viewed the administration’s legal reasoning
as so flawed that the he was moved to profanity. Benjamin Davis, Comment to So It’s Settled: The
President Can Violate Customary International Law, OPINIO JURIS (Oct. 29, 2015, 8:54 PM), http://
opiniojuris.org/2015/10/29/so-its-settled-the-president-can-violate-customary-international-law/
#comments.
5. Deborah Pearlstein, Contra CIA, Non-Self-Executing Treaties Are Still the Supreme Law of the
Land, OPINIO JURIS (Oct. 28, 2015, 2:45 PM), http://opiniojuris.org/2015/10/28/contra-cia-non-selfexecuting-treaties-are-still-the-supreme-law-of-the-land/.
6. Stephen Preston, Gen. Counsel, Cent. Intelligence Agency, Remarks at Harvard Law School: CIA
and the Rule of Law (Apr. 10, 2012).
7. Id. External scrutiny mentioned by Preston includes the House and Senate Intelligence Committees, the FISA Court, the National Security Council, the Director of National Intelligence, and the
Department of Justice.
8. Id.
9. Deborah Pearlstein, CIA General Counsel Speech on Hypothetical Uses of Force, OPINIO JURIS
(Apr. 11, 2012, 11:10 AM), http://opiniojuris.org/2012/04/11/cia-general-counsel-speech-on-hypotheticaluses-of-force/. Preston also indicated that the CIA applies the four basic principles in the law of armed
conflict – military necessity, distinction, proportionality, and humanity – as a matter of execution but
did not say that the CIA follows those principles out of a sense of legal obligation. Preston specifically
addressed the Osama bin Laden raid and mentioned that it was conducted in compliance with the law of
armed conflict; however, Preston did not discuss other international law norms, such as sovereignty and
non-interference in the internal affairs of other states. Preston, supra note 6.
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THE COVERT ACTION STATUTE
31
statute of the United States.10 Krass further indicated that the covert action
statute did authorize the CIA to perform covert actions that would violate some
forms of international law.11 International legal scholars in the blogosphere
retorted that all treaties are the “supreme law of the land,” and that the president
and CIA are bound to follow them.12 The legal positions described by Savage,
that the CIA can “violate international law,” and by international law scholars
that the CIA is bound to abide by all international law, lack nuance, are unduly
broad, and somewhat misleading characterizations of the domestic legal
landscape.
In short, the covert action statute provides domestic authorization to violate
some international law.13 The question that must be asked is what international
law may the CIA violate when conducting covert actions, and which international law is it bound to obey? In answering this question, I will attempt to
provide a legal analysis that could have been applied to reach the conclusion
described with a critical lack of distinction by Savage, and lambasted by
international legal scholars. In short, the CIA is bound to obey international law
in the form of both self-executing treaties, and in the form of non-self-executing
treaties or Customary International Law (CIL) which have been implemented
by statute. However, the covert action statute provides domestic legal authority
to violate customary international law and non-self-executing treaties that have
not been implemented through legislation by Congress.
This article will present a legal basis for this conclusion. Part I will address
the standing of treaties under U.S. constitutional law. Part II will examine the
covert action statute and its application to three areas of international law:
self-executing treaties, non-self-executing treaties, and customary international
law. Finally, Part III will address the covert action statute’s application to
potential international law questions posed by the bin Laden raid.
I. THE U.S. CONSTITUTION AND THE SUPREMACY CLAUSE
The supremacy clause of the U.S. Constitution provides, in pertinent part,
that “. . . all Treaties made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land, and the Judges in every
State shall be bound thereby . . .” The supremacy clause has three primary
dimensions, each governing a different aspect of conflicts or inconsistencies in
10. S. SELECT COMM. ON INTELLIGENCE, 113TH CONG., ADDITIONAL PREHEARING QUESTIONS FOR MS.
CAROLINE D. KRASS UPON HER NOMINATION TO BE THE GENERAL COUNSEL OF THE CENTRAL INTELLIGENCE
AGENCY 6-7.
11. The freedom to violate a non-self-executing treaty would apparently be limited to those not
implemented by statute. See, e.g., id. The distinction drawn by Krass appears uncontroversial to the
House and Senate Intelligence Committees, given her confirmation by a vote of 95-4. 160 CONG. REC.
S1612-13 (daily ed. Mar. 13, 2014).
12. See, e.g., Pearlstein, supra note 5.
13. The author concedes that no domestic statute can provide international legal sanction to violate
international law, and that U.S. officials who violate international law may be subject to punishment in
international tribunals.
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law. The first dimension deals with federal statutes vis-à-vis the U.S. Constitution. Not surprisingly, the Constitution prevails over inconsistent or conflicting
federal statutes.14 The second dimension of the supremacy clause is that of
federal law vis-à-vis state law.
As a general rule, federal law preempts inconsistent or contrary state law,
such that the inconsistent state law may no longer remain in effect.15 This
proposition applies to preemption of state laws not only by the Constitution, but
also by federal statutes.16 However, the Constitution places limits on this federal
preemption through the structure of the federal government itself.17 As pertains
to the topic at hand, because treaties made by the federal government stand on
equal footing as federal statutes, they must preempt inconsistent or conflicting
state statutes.18 The remaining question is what to make of federal statutes
vis-à-vis treaties made by the federal government?
Federal statutes and treaties stand on equal footing under the Constitution.19
Because of this, the “later in time” rule provides that a treaty may be abrogated
by a subsequent, inconsistent statute; and that a statute may be superseded by a
later-in-time treaty.20 However, a later-in-time statute will not be construed as
abrogating a treaty provision unless the statutory intent is clearly expressed in
either the language of the statute or in the statutory history.21 Finally, treaties are
subject to judicial review to the same degree as statutes passed by Congress.22
In reviewing treaties, U.S. courts have long found a distinction between “selfexecuting” treaties on the one hand, and “non-self-executing” treaties on the
other. The basic distinction is that self-executing treaties create enforceable
domestic legal obligations upon ratification, while non-self-executing treaties
may create international obligations but do not have the force of law in
domestic courts unless and until implemented by Congress.23 This basic understanding provides the backdrop against which to view various forms of interna-
14. United States v. Butler, 297 U.S. 1 (1936). The same constitutional preemption can also apply to
other government functions such as executive branch actions. See generally, Marbury v. Madison, 5
U.S. 137, 180 (1803).
15. See, e.g., City of New York v. FCC, 486 U.S. 57, 63-64 (1988).
16. See, e.g., Alden v. Maine, 527 U.S. 706, 731 (1999).
17. See Garcia v. San Antonia Metro. Transit Auth., 469 U.S. 528, 550 (1985) (explaining that the
principal means chosen by the Framers to protect the states from federal overreach were “the delegated
nature of Congress’ Article I powers” and “the structure of the Federal Government itself”).
18. See Santovicenzo v. Egan, 284 U.S. 30, 40 (1931). Santovicenzo did not address the question of
treaty provisions that conflict with state constitutions; however, there is every reason to believe that the
principles applied in other cases involving conflicts between federal statutes and state constitutions
would be applicable such that the federal treaty would prevail.
19. Cf. Whitney v. Robertson, 124 U.S. 190, 193-94 (1888). While not expressly discussed by the
court, this makes intuitive sense as both statutes and treaties have to some extent been vetted and
approved by both of the “political branches.”
20. See id.; Edye v. Robertson, 112 U.S. 580, 597-98 (1884); Cherokee Tobacco, 78 U.S. 616, 621
(1871).
21. See e.g., Lem Moon Sing v. U.S., 158 U.S. 538, 549 (1895).
22. See, e.g., In re Metzger, 46 U.S. 176, 188 (1847).
23. See, e.g., Whitney, 124 U.S. at 194.
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THE COVERT ACTION STATUTE
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tional law vis-à-vis the covert action statute. In assessing whether the covert
action statute provides a domestic justification to violate international law, the
examination must begin with the language of the statute itself.
II. THE COVERT ACTION STATUTE VIS-À-VIS INTERNATIONAL LAW
The covert action statute provides that the president may authorize “covert
actions,” which are defined as “. . . activities of the United States Government
to influence political, economic, or military conditions abroad, where it is
intended that the role of the United States Government will not be apparent or
acknowledged publicly.”24 The covert action statute requires both a finding by
the president to support the conduct of covert actions,25 and detailed reporting
of all covert actions to the House Permanent Select Committee on Intelligence
and the Senate Select Committee on Intelligence (hereinafter, Intelligence
Committees).26 The Central Intelligence Agency (CIA) is the default U.S.
agency tasked to perform covert actions, and the president must specify in
reports to the Intelligence Committees any other agencies participating in covert
actions.27 In many ways, the covert action statute “operationalizes” the constitutional separation of powers between the president and Congress. As explained
in Justice Jackson’s seminal concurrence in the Youngstown Steel case, there are
three degrees of presidential authority:
(1) Presidential authority is at its maximum when operating within a power
granted by the Constitution, and pursuant to a grant of authority by
Congress;28
24. 50 U.S.C. § 3093(a), (e) (2014).
25. Subsections (b) and (c) of the covert action statute dictate the required timing of any Presidential
findings and reports to Congress. As a general rule both the finding, and reporting to the intelligence
committees will take place prior to the contemplated covert action, but circumstances may dictate that
either, or both the Presidential finding and reporting to Congress take place in a timely manner after the
covert action has been conducted. 50 U.S.C. § 3093(b), (c) (2014). Apparently, in the case of the bin
Laden raid the administration determined to report to Congress after the raid was complete; however,
CIA Director Leon Panetta (presumably in compliance with the default rules) had already briefed
Congress prior to the execution of the raid. Savage, supra, note 2.
26. 50 U.S.C. § 3093(a) (2014).
27. Id.; 50 U.S.C. 3036(d) (1947). The CIA tasked function in 50 U.S.C. 3036(d)(4) to “perform
such other functions and duties related to intelligence affecting the national security as the President . . . may direct,” is generally regarded as authorizing CIA covert action and is sometimes referred
to as the “fifth function.” The other four functions are to (1) collect intelligence through human and
other appropriate sources, (2) to correlate and evaluate intelligence related to national security, (3) to
appropriately disseminate intelligence, and (4) to provide overall direction and deconfliction in the
collection of national intelligence. Id.
28. In Justice Jackson’s formulation, in these circumstances, the President can “be said . . . to
personify the federal sovereignty.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 636 (1952).
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(2) the President operates in a “zone of twilight” when operating in the
absence of Congressional action;29 and
(3) the President’s power is at its minimum when operating in the face of
Congressional opposition, in which case the only powers the President
may exercise are those expressly granted to the President, and not granted
to Congress, in the Constitution.30
In this context, the President enjoys broad, almost plenary powers, to conduct
foreign relations.31 The covert action statute authorizes actions to influence
conditions abroad, and thereby falls squarely within the President’s foreign
relations powers pursuant to Article II of the Constitution. To determine the
extent of Presidential authority to perform such actions, it is necessary to
examine the portion of the covert action statute that purports to allow the CIA to
violate international law.
A. Language of the Covert Action Statute
In pertinent part, the covert action statute reads, “[a presidential] finding may
not authorize any action that would violate the Constitution or any statute of the
United States.”32 It is a basic tenet of statutory construction that analysis of the
meaning of any statute begins with the language of the statute.33 Furthermore, it
is a “cardinal canon” of statutory construction that “a legislature says in a
statute what it means and means in a statute what it says there.”34 Thus, where
the statutory language is clear and unambiguous, then the statute must be
enforced according to its own terms.35
The language of the covert action statute provides that no covert action may
“violate the Constitution or any statute of the United States.”36 By this language
it seems clear that Congress intended that the President could authorize, and that
the CIA could perform actions which would violate other forms of law.37 For
instance, if Congress meant that the presi…
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