CIA COVERT OPERATIONS AND INTERNATIONAL LAW BY RICHARD A. FALK

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP88-01315R000200030001-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 24
• Document Creation Date: December 16, 2016
• Document Release Date: October 14, 2004
• Sequence Number: 1
• Publication Date: September 12, 1974
• Content Type: REPORT

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CIA COVERT OPERATIONS
AND INTERNATIONAL LAW
By Richard A. Falk
in one respect, international law has always been rele-
vant to the conduct of illegal covert activities in foreign
societies. The "guilty" government will not question the
sovereign prerogatives of the target society to take appro-
priate punitive measures to apprehend and punish the perpe-
trators. The U-2 incident illustrates this relevance very
vividly.,, After the U-2 was shot down and Francis Gary Powers
captured on May 1, 1960 the United States issued a cover
story, not realizing that Powers survived the crash, about
a weather plane having accidently strayed from course. When
the Soviet Premier Nikita Khrushchev "blew" the cover story,
catching the whole Government from Eisenhower on down in a
humiliating lie, the United States finally acknowledged that
the U-2 was on a spy flight, that Powers was a CIA contract
employee, and that the Soviet Government was entitled to
apprehend and punish Powers, as well as make an international
protest about the violation of its sovereign air space. And,
indeed, by the middle of May Eisenhower had promised the
Soviet leader that U-2 flights over the Soviet Union had been
permanently suspended. (See account by David Wise, The Poli-
tics of Lying, pp. 33-36; see also Kirkpatrick, pp. 207-209.)
Implicit in the American response was the illegal status of
the U-2 flights and its consequent impropriety.. Perhaps,
more to the point, was the residual willingness to comply with
international law, if and only if, the CIA link is discerned
by irrefutable evidence and the cover story blown. That is,
so long as the secret is kept or the cover story holds, the
inhibitions of international law are cast aside.
Perhaps, even an additional set of qualifications are
necessary. It should be recalled that the Soviet Union dis-
played the capacity to shdb?., the U-2 down and, therefore,
the flights would have become operationally untenable in any
event. Furthermore, more remote, less territorial, espionage
satellites (SAMOS) were on their way toward being made opera-
tional in any event. (See RAF chapter.) And, finally, the
Soviet union had geopolitical clout; U-2 overflights of other
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adversaries such as Cuba and North Vietnam, countries without
shootdown capabilities or geopolitical clout, continued even
though their existence was discovered by the target society
governments and angry protests formally made. Therefore, we
can safely conclude that the residual relevance of interna-
tional law is both a matter of last resort and of only modest
importance. The central question posed by this paper is
whether this low status for international law is desirable
in relation to the spectrum of CIA covert activities abroad?
What is surprising, I think, is that the international
law argument against covert activities is so rarely raised.
Even critics of the impact of secrecy upon the conduct
of foreign policy by the United States have refrained from
arguing that the CIA should be curtailed because its activi-
ties are so flagrantly in violation of international law
standards. Rather, the argument for curtailment is made to
rest exclusively upon domestic Constitutional considerations
of accountability and of the associated claim that dangerous
erosions of democratic traditions take place because public
officials are encouraged to deceive and lie to their own
citizenry so as to maintain "the cover." (Some IC content
because need for cover arises from the "illegal" status as
well as from its "immoral" and "unpopular" character.) For
instance, in an influential article Nicholas deB. Katzenbach
recommends that "We should abandon publicly all covert opera-
tions designed to influence political results in foreign
countries.... We should confine our covert activities over-
seas to the gathering of intelligence information." (Katzen-
bach, "Foreign Policy, Public Opinion and Secrecy," Foreign
Affairs, 52:1-19, 15 '1973). Katzenbach declares that he is
"prepared tb take some losses in our foreign policy if by
doing so we can restore the fundamentals of representative
democracy to our foreign policy." (Id.,p. 19) in the back-
ground, also, is Katzenbach's more pragmatic concern to "gain
that public consensus without which no foreign policy can
hope to succeed" (Id., p. 1) which he believes calls for an
abandonment by CIA of its covert operations abroad. My point
here is that Katzenbach, although a former professor of inter-
national law, never saw fit, even en passent, to comment that
"another reason" to give up covert operations is that they
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violate international law. (Katzenbach not alone in this,
even among international lawyers known for their liberal
views, e.g. Franck.) Why is this?
There is not much doubt, as we argue in a later section
of the paper, that several standard typesof CIA covert opera-
tion violate international law standards to which the United
States Government is formally committed, violations which if
committed by rival governments would be denounced by our of-
ficials as "illegal." Is it, perhaps, that the illegality of
secret operations is not noticed because there is no reason
to expect governments to be responsive to international law
when they. are not even held accountable to domestic legal
processes?
Actually, the published literature gives little insight
into why the international law dimension of covert operations
is never mentioned. Undoubtedly, one reason for the neglect
is that until recently when more carefully documented dis-
closures made their way into the public arena most of those
with access to the relevant patterns of conduct were them-
selves policy-makers. One notices that the prevailing tone
among policy-makers, whether of liberal or conservative per-
suasion, leads them to premise their evaluations of foreign
policy initiatives on domestic arguments and on their degree
of success rather than on their degree of conformity to moral
or legal norms. Even the Bay of Pigs Operation in 1961 was
regarded as fiasco not because the United States had taken
covert part in an aggression against a foreign government
with whom we were at peace, but because the CIA sponsored an
invasion by anti-Castro exiles that failed so miserably to
accomplish its strategic mission.. (RAF chapter; Marks and
Marchetti, 122f) (This same indifference to normative issues
is evident throughout the Task Force Study analyses of the
Indochina War, Pentagon Papers, Gelb introduction, even
Stevenson's 'regret' connected only to issue of integrity,
see Wise, pp. 37-38.)
Closer to a real explanation for the neglect comes from
CIA enthusiasts who do not doubt that covert operations may,
on occasion, be "illegal" or involve "imnoral" practices, but
accept their occurrence as essential to the furtherance of
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national purpose in the world or to offset similar initia-
tives by America's geopolitical rivals. In effect, the
pro-CIA position, and I believe the only tenable rationale,
is to say for one reason or another engaging in covert opera-
tions is more important for the country's well-being than
complying with internatinnal law. (See Copeland, p. 12;
Kirkpatrick, Braden, Bissell app. to Marks and Marchetti.)
Is this true?
I would like to consider whether in addition to Mr.
Katzenbach's domestic rationale for giving up covert opera-
tions the United States should give them up because their
character-is violative of international law. In general, I
will defend the view that such a ground of renunciation is
itself persuasive, although I will consider some of the dif-
ficulties with the position and even acknowledge a certain
qualification upon it. The remainder of this paper is
divided into the following sections:
I. The International Law Case against CIA's Covert
Operations;
II. Problems with the International Law Case;
III. A Qualification upon the Rationale for Compliance
with International Law;
IV. Toward a National Policy on International Law
Standards.
The International Law Case_Against_CIA Covert Operations
The international law case is in a sense self-evident
and is partially conceded by the insistence of CIA upon
secrecy and its related practice of defending itself against
allegations by cover stories (i.e., lies). Part of the ex-
planation of the secrecy/deception pattern arises because the
behavior is inherently objectionable to a segment of domestic
and, even more so, world public opinion, but another part
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clearly does reflect an implicit awareness that covert activi-
ties by CIA in foreign societies violates their fundamental
international law rights as sovereign states. Surely, the
United States Government claims the legal right to insulate
American society against covert activities carried out under
the direction of a foreign government, especially if that
activity were to cross the line of intelligence-gathering and
involve attempted interference and manipulation of domestic
political processes.
International law rests on the fundamental proposition
that the government of every sovereign state has complete
jurisdiction over events taking place within its territory
and that, correspondingly, a foreign government has no legal
right to act beyond such explicit grants of right as are made
in the course of exchanging diplomatic representatives or
agreeing to a foreign military presence. ::t is. true that in
a wide array of contexts CIA covert activities occur with the
consent of foreign governments and are designed to sustain
such a government in power against its domestic enemies. As
Marks and Marchetti accurately observe, "For the most part,
the agency's aim was not to overthrow particular Latin Ameri-
can governments but rather to protect them from local insur-
gent movements." (p. 123) is the consent of the constituted
government in the target society a sufficient gal answer
to allegations that covert activities violate international
law? (Note the comparable claim that Sihanouk consented to
U.S. bombardment of his territory provided the policy was
kept secret; see Hughes report.) in such a situation, then,
the secrecy and cover story are maintained not to avoid a
U-2 kind of confrontation, but to protect the effectiveness
of the operation on behalf of the foreign government.
The international law issue here is complicated and
controversial. it is a special instance of the broader
question as to whether a foreign government can legitimate
intervention in its internal affairs by giving its consent.
There are no very clear guidelines available in this class
of instances. if there is an on-going civil war, then some
international lawyers consider foreign governmental inter-
vention on behalf of either side, even if requested, as
illegal (RAF, Legal order in a Violent World). More broadly,
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the argument is made that any secret authorization of foreign
military and para-military action violates the principle of
national self-determination that inheres in a state (or
society) rather than in its overnment. Finally, if the
covert activities to which consent has been given are them-
selves aspects of conduct that violates international law,
then the CIA is an accessory to the illegal behavior of the
foreign government. For example, suppose the CIA, at the re-
quest of the government in state A, helps recruit and finance
an army for an attack on state B, then the entire operation
is illegal under international law and the United States and
the government of state A are the guilty parties. Another
more esoteric situation is created if the CIA, at the request
of the government in state A, helps with commission of "crimes
against humanity," (Nuremberg status), i.e.,_ provides weaponry
or counsels tactics that involve indiscriminate and inhumane
destruction of civilians, even if the victims are citizens of
the country wherein the action occurs; such a situation
existed for more than a decade, on a massive scale, comprising
the so-called 'secret war' in Laos (Marchetti, 118-9). The
Phoenix Program--with its full panopoly of counter-terror--
is the most celebrated instance of CIA involvement in the
commission of crimes against humanity on a systematic basis
(brief account in Marchetti and Marks, 245-6; other contexts
as. well). Therefore, our first category of instancesin-
volves the CIA role in al inq~ abetting, and conspiring with
foreign governments which are themselves violating.rules of
international law. (we are leaving aside--as not clearly
enough covered by IC--the role of CIA in helping governments
defend themselves against internal and external enemies; the
strongest IC case is violation of self-determination, the
weakest IC case is where state A is engaged in valid self-
defense or where there is foreign participation of a comparable
scale on the side of an insurgency.)
A more familiar pattern of CIA conduct involves a spectrum
of covert activities carried on without the consent of the con-
stituted government in the foreign society or in direct oppo-
sition to its wishes. The spectrum ranges from intelligence-
gathering activity to participation in a coup designed to seize
political power from the government presently in power. In the
middle of the spectrum are efforts to influence the outcome of
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elections in a foreign society such as "the green light"
reportedly given on September 23, 1970 by the Nixon Adminis-
tration "to do all possible--short of a Dominican Republic-
type action--to keep Allende from taking power" in Chile
(Marchetti, p. 350). There are bizarre cross-purposes occa-
sionally manifest, as when the CIA took some part in over-
throwing the Diem regime in South Vietnam during 1963 even
though the Saigon government was itself our ally whose exist-
ence was itself stabilized by earlier CIA interventions;
(Cp. Col. Conem's disclosures re role in coup with Marchetti
114) sort of like the famous claim by an American soldier at
Bien Tre--"we had to destroy it to save it"--so the U.S.
government had come to the view that it had to destroy the
Saigon regime in order to save it. The international law
argument here is unambiguous--it is clearly violative of
non-intervention norms and prohibitions upon the use of force
to engage in military or para-military activities in a foreign
society for purposes hostile to the well-being of the consti-
tuted government. It is also important to appreciate that
published reliable sources make it plain that such military
and para-military role has been played by CIA in a large
number of countries since the formation of the agency in
1947, especially since the Korean War allowed the Cold War
mentality to dominate foreign policy goals.
One extreme instance of such a CIA undertaking was the
authorization of a para-military operation under the direc-
tion of Colonel Edward Lansdale to disrupt the public order
of North Vietnam way back in 1954 in the immediate aftermath
of the Geneva Accords; here, the interventionary dimension
was aggravated by the effort to disrupt an international
peace agreement, negotiated after seven years of bloody war-
fare, adherence to which the United States had given its
solemn pledge (see B. Smith separate declaration).
Among other significant instances of para-military
intervention by the CIA to overthrow a legal government in a
foreign society are the following: the anti-Mossadegh coup
of 1953 in Iran; the anti-Arbenz coup of 1954 in Guatamala;
the unsuccessful anti-Sukarno coup of 1958 in Indonesia; the
unsuccessful anti-Castro invasion of Cuba at the Bay of Pigs
in 1961; the unsuccessful harrassment of Chinese administra-
tion of Tibet throughout.jthe 1960's; anti-Papandreou coup of
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1967 in Greece; and the anti-Sihanouk coup of 1970 in
Cambodia.
These are among the most publicized instances, but there
are growing indications that CIA covert activities occurred
in many additional countries where the United States was eager
to encourage a change of government policy and personnel,
perhaps less dramatic than a coup, but a substantial inter-
ference with the "political independence" of a sovereign state.
Andreas Papandreou, the son of the Greek liberal leader
George Papandreou, was asked by Laughlin Campbell, the head
of CIA in Greece at the time in 1961, to help persuade his
father to accept a constitutional innovation called "the
kindred party system" designed to keep a conservative premier,
Constantinos Caramanlis, in power. When Andreas told him that
his father was "not about to commit political suicide to
please you" the CIA operative changed-his tone from affability
to anger. Andreas Papandreou reports that Laughlin said: "Go
tell your father that in Greece we get our way. We can do
what we want--and we stop at nothing." (A. Papandreou,
Democracy at Gunpoint: The Greek Frontier, Garden City, N.Y.,
Doubleday, 1970, p. 108; see also N. Sihanouk, My War with
the CIA, New York, Pantheon, 1973 for detailed account by a
principal victim of sustained CIA intervention culminating
in a successful coup, producing foreign invasions, massive
destruction, and a bloody, continuing internal war.)
The statement by Laughlin Campbell--not an idle bluff as
Papandreou makes clear in his well-evidenced account of sub-
sequent tragic developments in Greece--summarized the ethos
of CIA and made a mockery of the contemporaneous public dip-
lomacy of John F. Kennedy and his ideological lieutenants who
were writing and talking so glowingly about their commitment
to democratic government and their acceptance of pluralism
and, the dynamics of national self-determination. The CIA
revealed the nailed fist beneath the velvet glove, a commit-
ment to a very different kind of world order system, and
above all an endorsement to policies designed to deny other
countries the enjoyment of their political independence, i.e.,
a clear violation of the United Nations Charter, Article 2(4),
which as a .duly ratified treaty is by the U. S. Constitution
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made part of "the supreme law of the land." Therefore, a
second category of instances involves the international law
violations that arise from the s ectrum of covert activities
carried on in a foreign society without the knowledge and
consent of the territorial government and inconsistent with
its political independence as a sovereign state.
One of the major areas of development for international
law over the past three decades has been the promotion of an
international law of human rights. The general aspiration
is proclaimed in Articles 55 and 56 of the U.N. Charter, and
has been given more specific content in the Universal Declara-
tion of Human Rights. The norms in these documents, supported
by an overwhelming consensus of governments including the
United States, express a set of agreed limitations as to the
limits of coercion a government may rely upon in relation to
its own population. Although these legal documents cover a
wide range of civil liberties associated with. human dignity,
the most minimal legal commitment is expressed in Article 5:
"No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment." (For convenient text,
see Brownlie, el., Basic Doc., pp. 144-186, Art. 5 of Decla-
ration at 146.)
The relevant point here is that the CIA role in both
category 1 and category 2 violations has also consistently
adopted as a means the deprivation of human rights of indi-
viduals that stood in the way of CIA objectives. We have
already had occasion to comment on the Phoenix Program, but
it is clear beyond doubt that the CIA in a series of coun-
tries has opposed regimes that were basically upholding human
rights and helped replace them with regimes that relied upon
torture as a routine technique of governance. The instances
of Guatemala, Greece, and South Vietnam are well known. The
Chilean instance is still shrouded in doubt as to detail,
but the basic thrust of CIA efforts is clear: first, if pos-
sible prevent Allende from coming to power through the elec-
tive process; second, if the first line failed, then encourage
all developments that would lead to the downfall of Allende as
soon and as decisively as possible. The tragic outcome is
now familiar to all, graphically expressed by Gabriel Garcia
Marquez as follows: "...implanting the hell-dark seeds
brought from Brazil, with all of the machines of terror,
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torture, and death, until in Chile there would be no trace
of the political and social structures which had made Popular
Unity(Allende's winning populist coalition) possible."
(Marquez, "The Death of Salvador Allende," Harper's_, March
1974, pp. 46-53, at 53; see also IDOC-North America, "Chile:
The Allende Years, The Coup, Under the Junta," No. 58, Dec.
1973.)
The Chile case illustrates what is a general commitment
of CIA policy to the support of right-wing governments that
repress, no matter how mercilessly, suppressions of human
rights and to illegal forms of covert activity to oppose pro-
gressive governments no matter how respectful of human rights.
The irony, of course, is that the CIA only succeeds in situa-
tions where the left-oriented regime has not moved in a
totalitarian direction and, hence, allows political opposi-
tion to operate and mobilize its forces. Allende, for
instance, was vulnerable to CIA tactics precisely because he
upheld the human rights of his opposition.
The international law contention here is relatively
simple: in a series of separate country situations, in a
wide array of patterns, the CIA has directly and indirectly
contributed to the violation of human rights of individuals
and groups on a massive scale. Therefore, a ,third category
of instances involves the international law violations of
human rights standards which are perpetrated in foreign
societies with the knowledge, consent, and participation of
the CIA.
A closely related issue has to do with military conduct
violative of the rules of war embodied in the Hague and
Geneva treaties which form the backbone of the law of war.
As Marchetti and Marks document, the Special Operations Divi-
sion (SOD) of the CIA, carries out its para-military and
military roles without any deference to the laws of war:
"The Para-military operator...is a gangster who deals in
force, in terror, in violence. Failure can mean death--if
not to the operator himself, then to the agents he has re-
cruited. The SOD man wages war, albeit on a small and secret
level, but none of the rules of warfare apply." (p. 109)
A former CIA operative described his training experience
this way: "...we received training in tactics which hardly
conformed to the Geneva Convention. The array of outlawed
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weaponry with which we were familiarized included bullets
that explode on impact, silencer-equipped machine guns, home-
made explosives and self-madb napalm for stickier and hotter
Molotov cocktails.... What did a busload of burning people
have to do with freedom? What right-did I have, in the name
of democracy and-the CIA to decide that random victims should
die?" (Quoted in Marchetti and Marks, 111-112). There is
lots of documentation around of the extent to which CIA con-
ducted and counselled para-military and military operations
in violation of fundamental laws of war.
The laws of war are designed to protect "enemy" popula-
tions from cruel and indiscriminate modes of warfare. The
violation of these laws was relied upon by the United States
and its World War II Allies to prosecute criminally thousands
of Germans and Japanese soldiers and civilians thought to be
responsible perpetrators. The trials led to convictions,
prison sentences, some executions.
Also made subject to criminal responsibility after World
War II were perpetrators of "crimes against humanity," i.e.,
victims of cruel and indiscriminate treatment regardless of
t heir national identity. Thus,. for instance,, to the extent
that the victims of the Phoenix Program in South Vietnam are
South Vietnamese, the perpetrators would be guilty of crimes
against humanity; to the extent that they were North Vietnamese,
the perpetrators would be guilty of war crimes (see definition
of the two categories of offense in Nuremberg Principles,
VI (b) and (c).
Obviously, CIA is not the only bureaucratic actor respon-
sible for violating the laws of war and responsible for war
crimes, but it may be the only part of the government whose
policies are consistently, and as a matter of course, so
designed. The status of the Nuremberg Principles is in some
doubt among international lawyers, but the United States
Government took the lead in trying to embody the war crimes
experience after World War II as a permanent feature of in-
ternational law. (See RAF on laws of war.) Therefore, a
fourth category of CIA violations of international law in-
volves various breaches of the laws of war and the commission
of a wide array of offenses which would seem to qualify as
crimes of war.
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There are other related undertakings by CIA that seem to
have a distinct status under international law. There is evi-
dence, for instance, that the CIA was active in relation both
to the Geneva Accords of 1954 and 1962 and in relation to the
Paris Agreement of 1973 in obstructing the implementation of
a solemn international peace agreement. Roger Hilsman, a Ken-
nedy official, and Peter Dale Scott show in greater detail
that CIA efforts in Laos immediately after the 1962 Geneva
Agreements actually proceeded in defiance of White House poli-
cies to uphold the bargain so painfully negotiated (see Scott,
p. 220 in Chomsky & Zinn, PPV). The post-1973 role of the CIA
in Indochina is difficult to depict in detail, but there is
no doubt, as Fred Branfman and others have convincingly demon-
strated, that the CIA has been active on a number of fronts
to assure noncompliance with the Paris Agreements. Such ef-
forts to induce noncompliance of peace agreements cut against
the most fundamental legal thrust of the U.N. Charter "to save
succeeding generations from the scourge of war" and constitute
an instance of a crime against the peace that the Nuremberg
Tribunal called the supreme crime against mankind that embodies
within itself all other crimes. Therefore, a fifth category
of CIA covert activities worthy of separate notice is their
active contribution in a number of different international
settings to the violation of international peace agreements
to which the United States was either a negotiating, guaran-
teeing, or endorsing party.
A separate kind of CIA violation of international law is
reported by Marchetti and Marks. Evidently Saipan in Micro-
nesia has been used as a secret military base in relation to
CIA activities in Southeast Asia. Micronesia is a Strategic
Trust Territory administered by the United States, supposedly
for the well-being of the inhabitants, as a trust exercised
for the organized international community as embodied in the
United Nations. There is an obligation of the U.S. Government
to give annual reports of its administration and to allow
periodic inspection visits by U.N. representatives. Naturally,
the discovery of a CIA base on Micronesia would produce an
international incident of major proportions. Hence, evi-
dently, the CIA disassembles the base altogether just prior
to scheduled U.N. visits and then reassembles it as soon as
they are over (see Marks and Marchetti, p. 110). In addition
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to the disception of the United Nations that results, the
whole pattern discloses behavior in violation of the Trustee-
ship Agreement upon which United States administration rests.
Therefore, a sixth category of CIA covert activities involves
the violation of the Trustee A reement by which the United
.States administers Micronesia on behalf of the organized in-
national community.
There are undoubtedly other categories of CIA covert
activities that could be isolated as violative of interna-
tional law standards. Undoubtedly, for instance, the CIA role
that Alfred McCoy so fully documented in sustaining the Lao-
tian supply of heroin seems clearly incompatible with inter-
national regulatory efforts to which the United States is a
party. (McCoy, The Politics of Heroin in Southeast Asia, New
York, Harpers, 1972, see especially pp. 297-315) Such other
categories of violation should eventually be identified and
developed so as to state the international law argument in
its most complete form. Nevertheless, I think that our treat-
ment has been sufficiently comprehensive to make out at least
a primie facio case of international law violations by the CIA
over a wide range of instances, over a long period of time, in
flagrant respects, and with serious repercussions for inter-
national relations. It moves our discussion to its next
stage, namely, to a consideration of some difficulties about
asserting an international law argument in the.sphere of
operation in which the CIA was engaged.
Arguments Against the International Law Case
John McNaughton, a Harvard law professor on leave to the
Defense Department and a principal adviser at the time to
McNamara on Vietnam policy, wrote a draft memo dated October
13, 1964 entitled "Aims and Options in Southeast Asia" (Docu-
ment 209, The PP, III, 580-583, at 582) which proposes that
the United States conceive of its role in Indochina as that
of a 'good doctor.' McNaughton explains that being a good
doctor means "We must have kept promises, been tough, gotten
bloodied, and hurt the enemy very badly." One of the criti-
cal questions that might mar this desired United States per-
formance is posed as follows: "Is the United States hobbled
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by. restraints which might be relevant in future cases (fear
of illegality, of U.N. or neutral reaction, of domestic
pressures of U.S. losses, of deploying U.S. ground forces in
Asia, of war with China or Russia, of use of nuclear weapons)?"
(pp. 582-3) on the basis of our assessment of CIA's covert
activities I think we could have replied to McNaughton's
(who died some years ago in a civil aviation crash in the
United States) question with a resounding 'No.' But the
issue of policy is one of judgment: should the United States
be "hobbled by restraints" of the sort mentioned by McNaughton
in the conduct of its foreign policy?
CIA supporters argue that such constraints as those asso-
ciated with international law would adversely affect America's
national interests if they were to be enforced against the CIA.
Miles Copeland, a former CIA official, for instance, insists
"that most intelligent citizens would be relieved, not dis-
mayed" to know that the United States Government is not
shocked by the reality of "soviet perfidy" but possesses the
means by way of American perfidy to counter it; as Copeland
expresses it, "When we choose to violate any of our policies,
from being truthful in our diplomacy to refraining from inter-
fering in the internal affairs of a sovereign nation; we find
means outside the normal machinery of government. Our Govern-
ment has such means. It is able to define a problem, to re-
lease forces which, largely on their own power, can effect a
solution, and to disclaim any responsibility." (Copeland,
10, 12) As we have seen, the real meaning of these bland
words includes torture, murder, napalm, atrocities, deception,
and official lies. Another CIA former official, speaking out
against CIA detractors, wrote an article in 1967 under the
provocative title "I'm Glad the CIA Is 'Immoral'" (Saturday
Evening Post, May 20, 1967, pp. 10-14). Braden's argument,
like that of Copeland, is that the United States is engaged
in "a game of nations" within which one technique used by the
main players is to engage in CIA-type activity in their search
for relative advantages,. After reviewing some of CIA's more
innocuous interferences in foreign societies--funding friendly
unions, infiltrating student groups, financing anti-Communist
cultural activity--Braden asks 'Was it 'immoral,' 'wrong,'
'disgraceful'? Only in the sense that war itself is immoral,
wrong and disgraceful, for the cold war was and is a war
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fought with ideas instead of bombs. And our country has had
a clear-cut choice: Either we win the war or lose it" (p. 14).
Of course, Braden too, poses the question in what appears to
be a deliberately misleading way--it is one thing to counter
Soviet politicizing and propagandizing activity with compar-
able means, but quite another to take part in para-military
and military violence for a variety of purposes, many remote
from any credible claim to be responding to covert interven-
tions of the geopolitical rivals of the United States.
Nevertheless, an issue of genuine moment is posed: namely,
other major governments active in international relations
are not hobbled by_ restraints, i.e., do not respect inter-
national-law. In such a situation, then, is it reasonable
and desirable to expect the United States alone to be so
hobbled? Why should the country penalize itself in playing
the game of nations with unscrupulous rivals, in particular,
the Soviet Union?
To assess this argument adequately it is necessary to
determine the range, frequency, and character of covert ac-
tivities by other governments, as well as to appraise their
degree of effectiveness. There is little doubt, that Soviet
covert activities cover a range of illegalities comparable
to what the CIA has done in Asia and Latin America, but it
is precisely in this area of Eastern Europe where CIA acti-
vities are least evident. Rather, the CIA seems most active
in relation to those spheres of geopolitical influence wherein
the United States seeks to acquire and to sustain its para-
mountcy; that is, the role of these activities seems more
closely connected with neo-imperial diplomacy than with any
genuine insistence on neutralizing the activities of other
governments. Nevertheless, the pro-CIA position is not en-
tirely eroded as it is still possible to maintain that since
other governments do not accept the restraints of interna-
tional law the United States is also not obliged to comply.
In effect, the absence of enforcement procedures, the wide-
spread practice of covert activities, and the general quality
of the state system means that compliance with international
law is a matter for voluntary determination by each govern-
ment in each context. I will respond to this contention in
the next section, but it is, I believe, a fundamental reason
why opponents of CIA such as Katzenbach and Franck are so re-
luctant to couch their arguments even partially in interna-
tional law terms.
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A related, more restrictive, contention of the same gen-
eral character is that the international legal norms of pro-
hibition invoked in opposition to CIA covert activities are
peculiarly "weak" and "soft" instances of law, even with
respect to international law as a whole. The principal norms
at issue such as the prohibition of aggression, the principle
of national self-determination, the doctrine of non-interven-
tion, crimes against the peace, crimes against humanity as so
general in their character that it is difficult to achieve
agreed definitions, much less agreed interpretation of their
application to specific circumstances. (For years interna-
tional lawyers have been debating about the desirability and
nature of-a definition of aggression; finally achieved in
1974.)
A government can make a legally coherent defense in most
of the characteristic instances of CIA covert activities--
for instance, that the government gave its consent or re-
quested the assistance, that the action was undertaken to
offset prior intervention by other foreign governments, or
that the particular battlefield practices were not as con-
tended or were a departure from prescribed guidelines or
were carried out without CIA knowledge and approval or that
the specific CIA operative was acting beyond his proper
province. In effect, the argument is that, except for tech-
nical violations (i.e., tactics and weapons that violate the
laws of war, use of Micronesia in violation of Trust Agree-
ment, the area of international law involves "soft" and "weak"
norms that are not sufficiently precise to serve as more than
commitments of good intention. In effect, the essence of
of covert activity by the CIA, i.e., intervening against
legally constituted government or intervening in its favor
to frustrate dynamics of self-determination, occurs in a
virtual "no law" area, where the character of the norms is
not of sufficient authority to fill the law vacuum created
by notions of state sovereignty. In a way, the argument is
directed at the basic normative flaws in the world order
system--namely, that there are still no legally significant
qualifications on the discretion of a national government to
the use of force in international conflicts, even when the
force.used amounts to the initiation of warfare (see E. David-
son, The Nuremberg Fallacy). Therefore, to complain about
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lesser included instances is hypocritical and nonsensical; and
CIA's covert activities constitute in general a lesser in-
cluded instance, perhaps rising on a few occasions to the
status of a sub-species of war as in the "secret war" on Laos
or the role taken in repressing the insurgency in the eastern
region of Peru during the mid-1960's.
A final line of argument concerns the "double standards"
used to assess covert activities. In effect, CIA supporters
often invoke "the legacy of OSS" to argue, in effect, that
the CIA is engaged in the same sort of covert activities that
were praised and glorified during World War II (e.g., Kirk-
patrick)., By extension, then, the CIA is alleged to be simi-
larly carrying out missions to achieve the national purpose
in a geopolitical period when outright warfare has been re-
placed, not by peace in a real sense, but by the sort of
intense and hostile competition denoted by the label "Cold
War."
Complicated questions are raised here that fall beyond
our scope. For instance, it is necessary to determine whether
the OSS really was doing the same sort of things, as considered
from a legal point of view, as the CIA. Secondly, it is neces-
sary to assess the argument that the justification of a state
of war such as existed for the CIA can be extended to various
stages of international relations after world War II, includ-
ing a condition of detente. And finally, it would be important
to judge whether what the OSS did was, in fact, compatible with
international law standards; the failure of public opinion to
object is of little legal consequence and was also descriptive
of public responses to indiscriminate aerial bombardment of
German and Japanese cities and of the use of the atomic bomb
against Hiroshima and Nagasaki. (See Shimoda case and inter-
pretation for a more detached judgment as to legality.)
There is no doubt that differences in national mood de-
termine the moral and political climate in which CIA-type
activities take place, and generally shape public attitudes
toward foreign policy. Such a climate, however, does not by
itself have any bearing on the legal status of behavior. Al-
though this legal status is problematic because most of the
rules are "soft" and the structure of their implementation
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"weak," the foreign policy option to uphold the claims of
international law exists and has potential importance for
the future of the country and for the quality of world order
in general.
A Rationale for Compliance with International Law
Despite serious. objections to the international law posi-
tion considered in the last section, I find compelling the
rationale for compliance. This rationale rests on a series
of separate grounds: law-abidingness as a civic virtue; the
progressive general character of the international law rules
at issue; and the relevance of international law to a system
of world order based on peace and justice.
.Respect for International Law. Implicit in the domestic
arguments against secret foreign operations is the impossi-
bility of-insulating a Constitutional order at home from what
is done abroad. At issue is a pattern of behavior, a way of
dealing with the political process, a suspension of normal
procedures of accountability. I believe the same considera-
tions apply to the rule of law. The Constitution gives
international legal norms standing as "the supreme law of the
land" if they are embodied in treaties; the Supreme Court
has decided that customary rules of international law are
also entitled to respect.
It seems to me that it is neither possible nor desirable
to separate foreign affairs from domestic society when it
comes to the rule of law. The attitude of amorality and
a-legality that is so often characteristic of CIA operations
abroad seeps into the way in which policy-makers act in do-
mestic settings; the Nixon Administration made this inevitable
tendency plain by the blatancy of their behavior. But as has
by now been frequently observed, lawlessness of the Nixon's
practices was "prepared" by earlier patterns of conduct, one
of which the covert activities of the CIA exemplifies. Respect
for international law represents one element in a framework of
accountability. We should want our leaders to accord respect
for all categories of valid law. If international law is to
be ignored as a constraint, then that policy decision should
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itself be made openly, on the basis of debate, and conceiv-
ably leading to a Constitutional amendment of the Supremacy
Clause. Posing such a possibility suggests a kind of im-
plausibility in advocating openly that our leaders have an
unbridled discretion to violate international law so as to
advance their view of national interest in world affairs.
The status of international law as a necessary, if weak and
uneven, system of behavior guidance is so well established
that no government advocates its freedom to violate its rules
in general (although some refuse to be bound by specific
rules). Even the socialist governments have affirmed their
respect for international law, have argued their own disputes
by reference to rights established by international law (e.g.,
the Sino-Soviet territorial dispute), and couch their objec-
tions to behavior of other states by reference to interna-
tional law criteria.
In essence, then, part of securing the rule of law in
general involves extending its reach to foreign policy. One
motivation for the insistence on secrecy of some CIA opera-
tions is undoubtedly the degree to which these operations
would strike the international community as "illegal," gen-
erating pressures for compliance. As we suggested, when
these operations have been discovered by powerful adversaries
and the cover story blown, as occurred in the U-2 incident,
then the American governmental tendency has been to accept
its obligation to comply with international law. Thus, no
real claim is ever made by the U.S. Government that a right
to ignore international law exists, but only that certain
secret operations should be carried out without being subject
to scrutiny of a normal kind. Mr. Braden could easily have
written a sequel to his article under the title "I'm Glad
the CIA 'Violates' International Law."
Progressive character of norms. In addition, i believe,
that American foreign policy would benefit from an effective
application of the norms at issue in the setting of covert
activities. In essence, the doctrine of non-intervention and
correlative principle of national self-determination encourage
progressive social and political developments under most cir-
sumstances. The CIA's role has been to keep repressive gov-
ernments in power and to overthrow or harass more progressive
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ones. Such a role seems detrimental to international society.
If the United States,had complied with international law it
seems much more likely that there would be many more pro-
gressive, socially responsible governments in power today
throughout the Third world. The CIA role has, in general,
helped to promote the militarization of government wherever
its influence has been strong, which seems undesirable.
The normal rationalization of the CIA role in foreign
societies has to do with the need for the United States to
play a counter-interventionary role to offset the encroach-
ments of Soviet and Chinese interventions. A great deal. of
ambiguity often surrounds this kind of claim--is it the ap-
peal of communist rhetoric, doctrine, and domestic groupings
that need to be offset or is it foreign military assistance?
As has been argued in many places the energy for social revo-
lution is often primarily an indigenous matter and becomes
"internationalized" only after the CIA enters the scene (see
Barnet, Intervention and Revolution). In any event, if the
American role is a counter-interventionary one in a genuine
sense, then it can carry out such a role overtly and within
the framework of international law. The doctrine of self-
defense, the right of governments to receive aid, and even
the notion of counter-intervention provides a sufficient
basis for foreign policy initiatives that were designed to
prevent "aggression" by geopolitical rivals. International
law is not so conceived or so taut in its application as to
jeopardize the well-being or security of a large state.
The basic point here is, I think, no persuasive reason
for not eliminating illegal CIA covert activities. These
activities have been generally reactionary in their social,
economic, and political impacts on countries which desperately
need social revolutions to bring to power leaders who are
committed to policies that will overcome the misery of the
general population. Hence, compliance with international law
by the United States might help to make the world safe for
social revolutions in national societies now governed in an
antiquated and repressive manner.
Quality of World order. I believe there is a final argu-
ment for compliance with international law that relates to the
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whole quest for a peaceful and just system of world order. I
think the argument needs to be made on two levels: how to
prevent the breakdown of the existing relations, how to faci-
litate the emergence of a more acceptable form of world order
than is provided by or possible under the state system.
It is not possible to examine these issues in detail, but
some assertions can be made to clarify my viewpoint. First of
all, the voluntary acceptance by principal governments of a
minimal system of restraints on the use of force is closely
connected with the capacity of the state system to maintain
world peace over time; international law, although far from
perfect,?provides such a system, and it is one that enjoys
widespread acceptance. The quality of that acceptance de-
pends greatly on voluntary patterns of Great Power attitude
and behavior; since there are no international sanctions on
principal governments other than public opinion and resistance
by their rivals, voluntary compliance plays a central role. A
country like the United States is especially important; its
non-compliance influences the whole climate within internation-
al society and undermines any effort to take international law
very seriously as a restraint on others. Thus, one cost of
non-compliance by the United States is to compromise our na-
tional efforts to persuade other governments to comply or to
mobilize opposition to illegal policies in the United Nations.
On a more dynamic level, the prospects for meeting the
deepening world order crisis arising from population pressure,
food shortages, spreading poverty, ecological decay, resource
shortages depend on bringing to power more enlightened and
progressive national elites. The authority structure of in-
ternational law, although far from ideal, does at least pro-
hibit the sort of covert activities that the CIA has engaged
in over the past several decades. The elimination of these
activities might encourage the emergence of a more humanistic
climate in world society that would booster a social movement
to reorganize and integrate life in "the global village"; the
open historical question is not whether "central guidance" or
"global integration" will come about, but only how quickly,
under whose control, and by what elements of choice ("The
Sherrill Hypothesis"). The sooner we organize to achieve a
new system of world order, the better the prospects are for
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making the adjustment non-violently and non-traumatically.
CIA's global role is basically opposed to allowing such a
transition and is aligned in effect with the most narrow and
destructive conception of the state system. Thus without
being over-dramatic I would contend that there is a link be-
tween opposition to the illegal activities of the CIA and the
growth of survival policies and politics in the world commu-
nity and that the demand for compliance with international
law is a proper way to strengthen that link.
Conclusion. These three sets of considerations overlap
with one another. They all contribute to a general proposi-
tion--namely, that the United States Government should realign
its foreign policy so as to comply with international law and
that such a realignment requires that CIA's program of covert
activities be abolished.
A Qualification on the Argument for Compliance
Despite the conclusion reached about compliance, it does
seem important to formulate a qualification on its apparent
claims. There are circumstances under which adherence to the
norms at issue may have a regressive impact. The most obvious
instance relates to the status of southern African liberation
movements. As matters now stand, of course, it is hardly con-
ceivable that CIA would seek to give these movements any help;
quite the reverse, the role of CIA is consistently on the other
side. But let's suppose there was a political reversal of mood
in the United States and that the CIA was acting in a progres-
sive role to overcome structures of entrenched reactionary and
repressive power in the power. Would this development alter
our stand on compliance which was artl justified by its
positive political effects?
The issue is complex and controversial. Obviously an
effective legal order can neither bend to every ideological
air current nor can it, nor should it, thwart basic histori-
cal tendencies. National governments on their own should not
suspend the operation of those rules of international law de-
signed to insulate states from foreign intervention, but the
organized international community has such authority.
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Specifically, with respect to the struggles of southern
Africa, the United Nations and the Organization of African
Unity have been virtually unanimous in their view that the
incumbent governments are illegitimate and their liberation
challengers legitimate. Such a, determination gives govern-
ments a possibility to enter the struggle. The mandate of
the international community is a way of reconciling claims
of social change with those of social control. It is what
I have referred to as an exercise of a legislative or quasi-
legislative competence by the United Nations (see Legal Order
chapter).
Such a competence is not meant as an endorsement of CIA-
type activities on behalf of anti-colonialist and anti-racist
regimes, but it is meant to put a qualification of their legal
prohibition. For one thing, the argument suggests that there
are limits on the obligation of a government to respect inter-
national law and that these limits themselves enjoy a legal
status of sorts, although a controversial one (see Yesselson
book). Secondly, that these qualifications cannot be achieved
by unilateral state action, but depend on overt, multilateral
procedures of world community institutions. Thirdly, that the
tactics relied upon under these settings are still subject to
the legal restraints governing international uses of political
violence--the laws of war--especially as these restraints re-
late to the protection of "innocent" civilians and the prohi-
bition of cruelty (e.g., torture). (These issues need more
careful analysis.) And fourthly, that the general presumption
against intervention and violence be overcome by the over-
whelming preponderance of evidence and argument and that even
then, considerations of prudence and the existence of peaceful
alternatives be considered.
The qualification, then, being placed on the argument
for compliance with international law is mainly directed at
absolutist pretensions. Law is an aspect of value-realizing
processes, and if its authority stands squarely in the way
of community-mandated change, then there must be a way to
reformulate its restraints on behavior. The role of civil
disobedience in domestic society has often been to express a
similar kind of point; and in international society, it might
be that a peculiarly conscience-stricken African government
could have engaged in a symbolic act of civil disobedience so
as to hasten the process of action by the world community.
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Toward a National Policy in CIA Covert Activities
The basic drift of this paper leads to a position that
might be used to shape a national policy on CIA covert acti-
vities:
(1) It should be recognized that many of CIA's covert
activities consistently and flagrantly violate international
law;
(2) it should be further recognized that respect for
the rule of law by the U.S. Government should include respect
for international law;
(3) it should be understood that the rules of interna-
tional law relevant to an appraisal of CIA covert activities
are generally enlightened in conception and beneficial in
social and political impact;
(4) It should be agreed upon that compliance with in-
ternational law will require the United States to abolish all
programs of clandestine operations, including possibly illegal
intelligence-gathering abroad;
(5) It should be understood that to make the policy of
abolition effective it will be necessary to dismantle or
drastically reduce clandestine capabilities;
(6) It should be recognized that respect for interna-
tional law in this area of behavior is not necessarily incon-
sistent with giving support to liberation movements, provided
the goals and legitimacy of a specific movement receive the
formal endorsement of the overwhelming membership in the in-
ternational community in a formal act of a main organ of the
United Nations.
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