January 2005: Pentagon Issues New Guidelines for Reporting Covert Operations to Congress

Undersecretary of Defense for Intelligence Stephen Cambone issues a set of new guidelines reinterpreting the Pentagon’s reporting requirements to Congress on its covert operations. The new guidelines were drafted by the Pentagon’s legal counsel at the insistence of Donald Rumsfeld. The Washington Post reports: “Under Title 10, for example, the Defense Department must report to Congress all ‘deployment orders,’ or formal instructions from the Joint Chiefs of Staff to position US forces for combat. But [the guidelines]… state that special operations forces may ‘conduct clandestine HUMINT operations… before publication’ of a deployment order, rendering notification unnecessary. Pentagon lawyers also define the ‘war on terror’ as ongoing, indefinite and global in scope. That analysis effectively discards the limitation of the defense secretary’s war powers to times and places of imminent combat. Under Title 50, all departments of the executive branch are obliged to keep Congress ‘fully and currently informed of all intelligence activities.’ The law exempts ‘traditional… military activities’ and their ‘routine support.’ [The set of new guidelines]… interprets ‘traditional’ and ‘routine’ more expansively than his predecessors.” Assistant Secretary of Defense Thomas O’Connell, who oversees special operations policy, explains to the Washington Post, “Many of the restrictions imposed on the Defense Department were imposed by tradition, by legislation, and by interpretations of various leaders and legal advisors.” He then asserts that over time these mechanisms unnecessarily watered down the Pentagon’s authority. “The interpretations take on the force of law and may preclude activities that are legal. In my view, many of the authorities inherent to [the Defense Department]… were winnowed away over the years,” he says. In addition to its efforts to evade congressional oversight, the Pentagon also seeks to diminish its dependency on the CIA. According to written guidelines acquired by the Washington Post, the Defense Department will no longer await consent from the agency’s headquarters for the human intelligence missions it “coordinates” with the CIA, instead it will work directly with agency officers in the field. The Pentagon will consider a mission “coordinated” after it has given the agency 72 hours. [Washington Post, 1/23/2005; Washington Post, 1/25/2005]