Clearly, there is room for certain reforms of secrecy, accountability, and oversight structures, but reform should proceed under two fundamental premises. First, there are legitimate government secrets. Second, accountability and oversight are the responsibility of the political branches alone, not of unelected and unappointed individuals such as Edward Snowden. These two premises are, importantly, not merely claims of politics or national security necessity; they are propositions about legitimacy and its terms. Moreover, this is not simply a call for transparency in the form of more speeches and statements by senior officials, though those have been a vital tool of articulating national security law and its evolution, and of defending its legitimacy. It is about reform at the statutory level — and one might begin with Title 50’s definition of “covert action” as a prelude to oversight processes that flow from it.
This might seem a strange starting point to those familiar with the functioning of the covert action statute since it was overhauled following the 1970s-era Church Committee hearings. The statute, at Section 413b(e), defines “covert action” 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” (the definition then lists certain exclusions). Covert actions are subject to official secrecy or at least official non-acknowledgment, on the one hand, but also subject to corresponding official oversight and accountability to Congress on the other. The accountability and oversight process is robust and appears to have worked pretty well over the past 30 years. It ensures that the president has to know and approve the substance of these activities and that senior leadership in Congress will know about them as well. It might not seem obvious that this stands in need of reform, and less still that it ought to be one of the first steps.
But three factors come together to create weaknesses in the covert action accountability regime: precision stand-off weapons; increased strategic reliance on discretely targeted counterterrorism uses-of-force that are enabled by new technologies; and the blurring of different kinds of counterterrorism uses-of-force that do not neatly fit into categories of the statutory definition. Most obviously, the existing categories do not adequately address precision weapon technologies in counterterrorism operations. As everyone knows today, these operations have a range of public knowledge about them that includes ‘truly secret’; ‘mostly secret and unacknowledged’; ‘widely known but still unacknowledged’; ‘everybody knows and the US government talks about it under a shredded fig leaf’; and finally, ‘merely preposterously unacknowledged’.