Covert Action

Teaching Covert Action to Law Students

By Peter deLacy
Thursday, August 8, 2019, 9:26 AM


I qualify as a “practitioner” in this area; post-9/11, most of my legal work was as an operational lawyer at the CIA’s Office of General Counsel working with CIA officers and managers responsible for implementing sensitive programs. Lawyering in this context is never dull— the real-world fact patterns alone guarantee that. This type of lawyering also involves a range of substantive legal knowledge (e.g., the legal doctrine of covert action) and experience, client communication and counseling skills, and a genuine professional appreciation for the significance of covert action in terms of governmental authority. My goal was to bring this more holistic perspective alive for law students.

Law school instruction on covert action is important for a range of reasons. Covert action authority represents a significant legal construct that law students wishing to be conversant in the substance of national security need to understand—in terms of the real-world scope (influencing political, military and economic conditions abroad) and the range of risks and the legal obligations. The concept of covert action remains a timely topic in discourse surrounding the toolkit of U.S. foreign policy and national security, and there is an increasing overlap between covert action and non-covert action activities (e.g., U.S. special forces). Additionally, lawyering in this context involves and in certain ways accentuates fundamental attributes of national security lawyering, in particular, client communication skills and professional responsibilities. And (compared to many other areas of national security law) the National Security Act of 1947 provides relevant statutory black letter law.

Against that backdrop (and the reality that I had about 100 minutes of classroom time), my “what to teach” resolved to the following three objectives (phrased in terms of what students would be able to do if I was successful). I have annotated these with my practitioner thoughts.

1. Analyze and understand how legal authorities (including the Constitution, National Security Act of 1947 and Executive Order 12333) directly affect and shape the planning and conduct of covert action activities. Based on my experiences, this objective involves three practice pointers. First, it underscores the underlying need for legal authority in the covert action arena. The need for positive authority in governmental action is a key practice element and is often presumed rather than explicitly identified. Second, students should intellectually experience how specific elements of the National Security Act (as well as related executive orders and other statutes of general applicability) can shape—that is, constrain as well as facilitate—the conduct of covert action activities. This naturally requires students to get their “intellectual hands” dirty with statutory analysis and issue spotting in “applying the law” to proposed operational activities. Third, at a practical level, the distinction between law and policy is an important element that lawyers need to master. The ability of national security lawyers to accurately make and communicate this distinction for their clients is a central lawyering skill—often underestimated but of overwhelming importance.

2. Better understand how legal issues may arise in the conduct of covert action activities. Given the limited case law and publicly available information on covert action, teaching about practical legal aspects of covert action in the law school context is challenging. Moreover, what is generally available tends to present more extreme or sensational activities and issues. This is not to understate the significance of the existing case law or shy away from historical controversies involving covert action programs. Rather, it is to note that the scarcity of publicly available source materials potentially narrows a student’s aperture (and understanding) as to the scope of covert action and how quotidian legal issues arise in these programs. Getting students to better understand how extreme issues arise as well as providing context to appreciate more routine issues results in a more complete understanding of what it means to be a lawyer in this context.

3. Appreciate the various roles that a national security lawyer plays and the ethical context in which the lawyer must fulfill these roles. While a baseline understanding of black letter law surrounding covert action is warranted, covert action offers an ideal opportunity to consider lawyering skills. A lawyer supporting covert action plays a variety of roles, including drafting documents, providing legal guidance, and assisting in both informal and formal oversight. A lawyer plays these roles to fulfill the responsibility of ensuring that covert action activities are undertaken in accordance with U.S. law and the Constitution.

What knowledge and skills does a lawyer need to succeed in these roles? What type of communication and fact-finding skills does a lawyer need in the operational environment? How far should a lawyer go not only in offering guidance on black-letter law issues but also toward providing broader counsel? What are the inherent risks associated with fulfilling these roles? How does a lawyer mitigate unintended consequences in this practice? As these questions suggest, there is good potential for a robust classroom discussion on lawyering skills in this area. The discussion around these questions is also a useful mechanism to begin to orient students to ethical issues and obligations present in this practice. For example, lawyers in this arena maintain ethical obligations, including oversight and reporting responsibilities, which require them to maintain a professional independence from the specific programs or activities for which they are providing counsel.

Early on, I determined that the best approach was to use a fictional, but realistic, scenario to guide students toward more consciously considering what it means to practice law in this area. This allowed me to be more practice focused and to avoid classified information (for me, this involved both a need to not include actual classified information and my own sensitivity around appearing to confirm or deny alleged CIA covert actions). The scenario used has students preparing to attend an initial planning meeting for a potential covert action program in which the lawyer will need to provide legal input on whether covert action is a legally available option, along with the types of legal issues or concerns presented by specific types of operational proposals.

In addition to raising potential covert action legal issues, the scenario is intended to realistically represent an operational lawyer’s engagement on covert action-related issues. This helps students think beyond the general issue of whether covert action is a legally available option and begin to identify specific legal issues that might shape the conduct of such a program and that need to be flagged for policymakers or operators.

This approach also introduces students to the realities of providing appropriately caveated legal analysis in situations where information is incomplete, precedent or case law may be limited and legal input is needed on a time-sensitive basis. In doing so, it is a useful mechanism to begin to sensitize students to attendant ethical considerations. And, importantly, it is not a crisis scenario; the goal is for students to appreciate what day-to-day lawyering in the proverbial trenches involves. A crisis scenario typically raises decision-making to more senior levels. In the process, it becomes less approachable for students thinking about their initial careers (i.e., less senior line attorneys) in the national security field.

The underlying fictional scenario—which students read in advance—provides a range of potential foreign policy objectives and potential intelligence, military and covert action responses. Students adopt the role of an operational lawyer in the CIA about to attend a meeting with operational officers to brainstorm a range of potential intelligence or covert action activities. This approach (shaped by a handful of questions that students prepare) requires students to substantively explore how the statutory requirements and criteria for covert action might apply in actual prospective activities and primes students in advance to consider what law and policy issues might arise in the conduct of such activities. In class, the answers to the questions are collectively reviewed, ostensibly in preparation for the operational meeting. Students are then provided five operational scenarios and work in small groups of three students to issue spot law and policy issues, as well as to discuss what guidance they should provide operators or policymakers. The remainder of the class is devoted to a facilitated discussion of each operational proposal focused on each learning objective.