Regulating Covert Action: Practices, Contexts and Policies of Covert Coercion Abroad in International and American Law

260 Pages·1992·17.929 MB·English

by  W.michael Reisman

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REGULATING
COVERT ACTION
PRACTICES, CONTEXTS, AND POLICIES
OF COVERT COERCION ABROAD IN
INTERNATIONAL AND AMERICAN LAW
W Michael Reisman
and James E. Baker
Covert activity has always been a significant
element of international politics. When it has
served their interests, governments have
secretly disseminated propaganda in other
countries, manipulated foreign economies,
and abetted coups against their adversaries.
What are the circumstances, if any, in which it
is lawful, under international law or United
States law, to resort to covert action either
directly or through local proxies? When is it
right to do so?
This book is the first to assess the lawfulness
of covert action under international law. It
includes as well a chapter on United States
law and a candid discussion of the implica
tions for democratic states that covert opera
tions pose. W. Michael Reisman and James E.
Baker identify different types of covert
actions, discussing a variety of cases that
include the Trujillo assassination in 1961, the
Rainbow Warrior in 1985, and the raid on
libya in 1986. After explaining the complex
operations of the international legal system,
they explore trends in decision making and
the conditions that accounted for them -
whether the covert operations were proactive,
defensive, or reactive. They examine in detail
the procedures followed in the United States
to authorize and oversee covert activity and
propose guidelines for political leaders who
may contemplate using covert techniques. An
appendix reviews twenty years of allegations
of covert aggression brought to the attention
of the United Nations Security Council.
Regulating
Coven
Action

Regulating
Covert
Action
Practices, Contexts,
and Policies of
Covert Coercion
Abroad in
International and
American Law
W. Michael Reisman
James E. Baker
Yale University Press
New Haven and London
Copyright© 1992 by Yale University. All rights reserved. This book may not be
reproduced, in whole or in part, including illustrations, in any form (beyond that
copying permitted by Sections 107 and 108 of the U.S. Copyright Law and
except by reviewers for the public press), without written permission from the
publishers.
Set in Times Roman and Eras type by Composing Room of Michigan. Printed in
the United States of America by Vail-Ballou Press, Binghamton, New York.
Library of Congress Cataloging-in-Publication Data
Reisman, W. Michael (William Michael), 1939-
Regulating covert action : practices, contexts, and policies of covert coercion
abroad in international and American law I W. Michael Reisman, James E.
Baker.
p. em.
Includes bibliographical references and index.
ISBN 0-300-05059-3
1. Duress (International law) 2. Reprisals. 3. Retorsion. 4. Aggression
(International law) 5. Duress (Law)-United States. 6. Intelligence service
Law and legislation-United States.
I. Baker, James E., 1960- . II. Title.
JX4486.R45 1992
341.5'8-dc20 91-24639
CIP
The paper in this book meets the guidelines for permanence and durability of the
Committee on Production Guidelines for Book Longevity of the Council on
Library Resources.
10 9 8 7 6 5 4 3 2
Contents
Acknowledgments vi
Introduction 1
1. The Problem: Its Conceptions and Contexts 4
2. The Constitutive Process of International Law: Prescription and
Application 17
3. International Legal Regulation of Proactive Covert Operations 26
4. International Legal Regulation of Reactions to Covert Activity 78
5. Countermeasures and Covert Actions 89
6. United States Internal Procedures 116
7. Covert Operations in the Future: Projections and Some Modest
Guidelines 136
Appendix: Twenty Years of Alleged Covert Aggression Brought to the
Attention of the Security Council 144
Notes 153
Suggested Readings 199
Index 241
Acknowledgments
The U.S. Institute of Peace invited us to undertake this study and provided
an honorarium for the initial paper from which this book then developed. The
authors also benefitted from the many comments of the participants at the
Institute of Peace conference. In addition, we are grateful for the comments of
Mahnoush H. Arsanjani, Myres S. McDougal, Andrew R. Willard, H. Brad
ford Westerfield, James Nendza, Robert 0. Kimball, William E. Odom, and
William T. Cozean. Cheryl A. DeFilippo supervised the final preparation of the
manuscript.
W. Michael Reisman was a fellow at the Institute of Advanced Study in
Berlin in 1990 when much of the writing was done and is grateful to the institute
and its library staff for the help extended. He delivered earlier versions of parts
ofthis manuscript in lectures at the Free University of Berlin and the University
of Wiirzburg. The library staff at the Yale Law School and the Seeley-Mudd
Collection were also very helpful.
After substantive work on the manuscript was completed, James Baker
joined the Legal Adviser's Office of the Department of State. The views ex
pressed in this book are those of the authors and not necessarily those of the
Department of State or Yale University.
Extracts from the following article have been adapted and incorporated in
this work: W. Reisman, No Man's Land: International Legal Regulation of
Coercive Responses to Protracted and Low Level Conflict, 11 Hous. J. Int'l L.
317 (Spring 1989).
vi
Introduction
The core of this work originated as a discussion paper presented at a meeting
of the Institute of Peace concerned with low-intensity warfare. That particular
meeting took place several days after reports of a mysterious (and some might
say providential) fire at the chemical weapons plant in Rabta, Libya, and two
weeks before the revelation of Iraqi nuclear activity. Subsequent reports sug
gested that Colonel Qaddafi himself may have staged the fire to deflect the
growing international concern about the production of chemical weapons in
Libya. Meanwhile President Saddam Hussein threatened in advance Iraqi re
taliation for attacks on his various nuclear, biological, and chemical activities.
All these events gave an acute and painful relevance to the subject, while
showing how much of it is viewed through reflecting mirrors. After Iraq in
vaded Kuwait, it was reported in the U.S. media that President Bush had
established as a goal the removal of Saddam Hussein from power.
We were anxious to undertake this assignment not because we like the idea of
covert action-we do not-but because this moment in international politics
presses scholars to rethink many assumptions that have crystallized over the
past forty years. These assumptions may have begun to deform our perception
of and appreciation for the potential of emerging trends and to undermine the
formulation of responsible proposals for this new environment.
In the initial presentation as well as in this expanded version, we have not
aspired to codify a general authoritative legal rule on the lawfulness or un
lawfulness of the different covert uses of international politics' strategic
1
2 Introduction
modalities. The available data do not support such a single answer and our basic
conception of decision making does not view the formulation of a rule, were it
possible, as a solution to the intellectual, legal, and moral problems presented.
Rather, the focus has been on an exposition of the authoritative international
and national policies that have been expressed, the ways they have been applied
in practice, the contexts of past decisions, and, not without a certain diffidence,
a "guesstimate" of the likely configurations in the future in which covert actions
of various sorts may be contemplated.
Jurists frequently present the law in a single statement. But this conflates
what happened in the past, the reasons for it, what may happen in the future,
and what the jurists may want. McDougal and Lasswell have described this
particular pathology as a "normative ambiguity. "1 As far as material is avail
able, our research has sought to distinguish among events that occurred in the
past, the conditioning factors that accounted for them, our estimates of likely
future behavior in comparable or different environments, and our conception of
normative arrangements that might better serve the common interest.
Although fundamental policy decisions concerning many types of covert
action are not always clear in international law, in the United States there has
been a remarkably consistent national policy in favor of maintaining a compe
tence to conduct a wide range of covert operations. To be sure, a number of
political battles have been fought over particular covert actions, but, none of
them involved an absolute congressional prohibition. Rather, some restrictions
were introduced. The periodic crusades initiated by the media in the United
States and conducted by Congress have resulted in a shift in authority over such
actions to Congress rather than a proscription. The national debate has, thus,
focused not on the lawfulness of covert action but on the constitutional alloca
tion of competence to control it. This makes it all the more important to
reconsider whether and to what extent a covert competence should be main
tained.
The special research problems encountered in studying this subject are
formidable. A few sensational fiascoes have been well publicized and some
commentators have concluded from them that all covert actions are unnecessary
or counterproductive or doomed to fail, though failure is often defined in quite
different ways by different writers. Successful operations, some, perhaps,
spectacularly so, may remain unknown. Other reports are incomplete or them
selves infected by "disinformation." There is a large, almost "voyeuristic"
literature on covert operations. Some of it provides some useful data; some is
part of the genre of violence-pornography. We have not tried to emulate it nor to
write either an expose or a defense of covert action, but only to sample trends in
order to test normative formulas, propose certain hypotheses, infer implica
tions, and suggest some policy guidelines for the future.