Is JSOC About to Become More Transparent on Drone Strikes?

One frequently sees the claim that CIA drone operations should be handed over to the military because the military is more transparent. I have frequently disparaged that argument, not because the CIA is in fact transparent but rather because direct action undertaken by JSOC isn’t transparent either. But might that change soon? According to a story by Julian Barnes and Siobhan Gorman in the Wall Street Journal today, JSOC is seeking just such a change. They report that JSOC’s Commander, Lt. Gen. Joseph Votel, has grown frustrated with DOD’s inability to defend itself in a detailed way when a strike occurs and claims of civilian casualties begin circulating, and has sought and obtained support from CENTCOM Commander General Lloyd Austin in an effort to change things in Yemen and Somalia. The question will soon be on Secretary Hagel’s desk (the story also indicates that if approved by Hagel the issue would then move up to the NSC, which I think merely illustrates that this is an issue in which other agencies (particularly CIA) also have equities, and that its political and diplomatic salience in any event warrants White House attention). So what we likely are talking about here is a DOD-specific policy constraint that currently exists in whatever ExOrd authorizes JSOC’s direct action activities in Yemen or elsewhere. There’s certainly nothing in statute that requires DOD to be silent about such activity. Compare that last point with the oft-raised question whether CIA can be transparent about its drone strikes. There’s nothing in law that requires CIA to be silent about itsdrone strike activity either, as Marty Lederman has explained in detail here. Nonetheless, government officials seem to assert otherwise with some frequency, and sure enough this move appears in today’s WSJ story too. Further down in the article, Julian and Siobhan move beyond the issue of DOD becoming more transparent with its own strikes, and make a fleeting but important reference to the CIA drone strike program:

And meaningful transparency would require an operational shift of authority for conducting the bulk of strikes from the Central Intelligence Agency to the Pentagon.

It’s not entirely clear whether the Votel/Austin initiative to increase DOD transparency also entails an effort to spur the transfer of CIA ops to DOD; the statement quoted above is not attributed to any particular person, after all. At any rate, it is worth underscoring once more that there is no direct statutory impediment to acknowledging CIA drone operations. It may be, of course, that CIA as a matter of policy, culture, or both simply wants nothing to do with running such a program without the veil of deniability. (It is interesting, in that regard, to note that the covert action statute (50 USC 3093(a)(5)) famously specifies that covert action cannot violate the Constitution or federal statutes, while conspicuously omitting reference to international law; if CIA were asked to conduct drone strikes overtly, and thus without benefit of 50 USC 3093(a)(5), might this give the institution some additional heartburn?) A final interesting note is the manner in which this article underscores one of my favorite themes: the operational convergence of CIA and DOD activities:

Some officials at the U.S. Counterterrorism Center worry the military will be too slow to pull the trigger, a former top intelligence official said. But a senior U.S. official said the concerns have largely subsided as the CIA and military have gravitated toward the model in which the CIA still plays a major role in developing and locating targets, while the Pentagon carries out most strikes.

Does it follow that the US will eventually get the CIA out of the drone strike business via hybridization? Not exactly:

A variety of U.S. officials have said the CIA would maintain the ability to strike some targets in situations when the U.S. wanted to preserve its ability to deny involvement.