Four people with firsthand knowledge said defense personnel have already begun operating under "non-official cover" overseas, using false names and nationalities. Those missions, and others contemplated in the Pentagon, skirt the line between clandestine and covert operations. Under U.S. law, "clandestine" refers to actions that are meant to be undetected, and "covert" refers to those for which the U.S. government denies its responsibility. Covert action is subject to stricter legal requirements, including a written "finding" of necessity by the president and prompt notification of senior leaders of both parties in the House and Senate.O'Connell here is Assistant Secretary of Defense Thomas O'Connell, who oversees special operations policy. And a country "close to our borders" must be a reference to the Western Hemisphere, and the only country that can reasonably be said to fit that category is Cuba.
O'Connell, asked whether the Pentagon foresees greater involvement in covert action, said "that remains to be determined." He added: "A better answer yet might be, depends upon the situation. But no one I know of is raising their hand and saying at DOD, 'We want control of covert operations.' "
One scenario in which Pentagon operatives might play a role, O'Connell said, is this: "A hostile country close to our borders suddenly changes leadership. . . . We would want to make sure the successor is not hostile."
Operating under false cover, in and of itself, doesn't sound so nefarious. But as the Post piece notes, the whole thing has raised red flags in Congress, even for Republicans.
The discussion of allowing Special Operations Forces to carry out covert operations in a broader sense is an extremely hot topic these days in Washington, as evidenced by this January 4, 2005 CRS brief, "Special Operations Forces (SOF) and CIA Paramilitary Operations: Issues for Congress." Among many other things, this issue brief notes the legal implications of the military undertaking these functions:
Some experts believe that there may be legal difficulties if SOF are required to conduct covert operations. One issue is the legality of ordering SOF personnel to conduct covert activities that would require them to forfeit their Geneva Convention status to retain deniability. In order to operate covertly and with deniability, SOF could be required to operate without the protection of a military uniform and identification card which affords them combatant status under the Geneva Convention if captured. Another issue is that covert operations can often be contrary to international laws or the laws of war and U.S. military personnel are generally expected to follow these laws.And if we're oh-so-surprised about covert ops being "often" contrary to international law, you should take a look at another article that's embedded in the CRS brief (if you click on the footnote, it will open into the same Adobe document, or just click below.) That article, which is an academic research paper dated April 7, 2003, and written by Col. Kathryn Stone at the U.S. Army War College is called “ALL NECESSARY MEANS” – EMPLOYING CIA OPERATIVES IN A WARFIGHTING ROLE ALONGSIDE SPECIAL OPERATIONS FORCES. While not official policy, the author speaks in plain-spoken English about these matters, and is worth a read if you have the time and interest.
UPDATE: Andrew Cochran at the Counterterrorism Blog notes that a DOD release "denies some of the basic points of the story." Actually, the Pentagon's press statement seems to deny only two points, one of which is factual (the unit does not report directly to the Secretary of Defense), and the other more subjective/interpretative ("the Department is not attempting to 'bend' statutes to fit desired activities, as is suggested in this article.")
The piece in today's Times about William Arkin's new book is also worth looking at on this topic.