Stephen Preston: Covert Operations Don’t Need OLC Approval

Jane Mayer has obtained a set of questions Mark Udall made CIA General Counsel Stephen Preston answer before he would release a hold on the latter’s confirmation as DOD General Counsel. They address CIA’s response to the Senate Intelligence Committee torture report. I will have more to say about these answers later (see also this post from Katherine Hawkins).

But for now I want to point to one of the few questions Preston really didn’t answer. While the non-answer is not at all surprising, it does have implications far beyond torture.

Udall noted,

The CIA response to the Committee Study states: “while it would have been prudent to seek guidance from OLC on the complete range of techniques prior to their use, we disagree with any implication that, absent prior OLC review, the use of the ‘unapproved’ techniques was unlawful or otherwise violated policy.”

The comment does two things.

First, it confirms CIA tortured before John Yoo authored memos authorizing that torture.

That confirmation is news, though we’ve long known it to be true.

But it also reflects CIA’s view that the legality of specific torture techniques did not stem from OLC review and authorization of them.

Udall asked Preston,

Please state whether you agree with this legal determination and explain your legal reasoning.

To which Preston responded,

On the particular point raised in (c) of the question, I also agree that CIA should have sought guidance from OLC with regard to the complete range of interrogation techniques prior to their use. I understand the Agency’s response to the SSCI’s study to acknowledge this point, noting only that failure to so engage with OLC did not, in and of itself, render any given technique unlawful.

Preston doesn’t actually say whether he agrees with the Agency’s legal determination or not, which was, after all Udall’s question. Which gets him out of answering Udall’s question about his legal reasoning.

But Preston has, for all intents and purposes, already answered that question in his speech last year on CIA’s use of lethal force. In it, he laid out was required for the use of lethal force (he doesn’t say it, but this includes lethal force against an American citizen) to be legal under US law.

Let’s start with the first box: Authority to Act under U.S. Law.

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack.


In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding.

As I’ve noted elsewhere, Preston doesn’t even acknowledge the National Security Act’s requirement that covert actions be legal under US law.

His speech makes it clear he agrees with the CIA’s response on torture. The CIA doesn’t need OLC approval for covert operations (which torture was during its early years), the implication seems clear, because the only thing needed to make covert operations legal is Presidential authorization with adequate Congressional notice.

This is a stance that most discussions on drones and torture miss. The CIA doesn’t believe it needs OLC memos — whether authorizing belly slaps or the assassination of Anwar al-Awlaki. It may consider it prudent to have OLC authorization in hand, mind you. But it does not believe such authorization gives covert operations any more legal sanction that simply the President’s authorization.

6 replies
  1. earlofhuntingdon says:

    L’etat, c’est moi. funny how certain aspects of French culture have such long lives. Whatever happened to cries of “Frogs!” and the movement to rename America’s second unhealthiest industrial food, after les hamburgers, as “freedom fries”.

  2. Adam_Smith says:

    Just a reminder that deprecation of the rule of law in favor of executive supremacy is not a recent innovation of either the Obama Administration or its predecessor:

    “When the President does it, that means it is not illegal.” — Richard M. Nixon, TV interview with David Frost, May 20, 1977

  3. Ducd'Enghien says:

    The ability of Americans to commit criminal actions and then delude themselves as to the very nature of what they did is clearly an aspect of their cultural heritage from perfidious Albion. While Americans did try to engage in various circles of mental masturbation regarding the names of their fast food industry, so that France was made a scapegoat for all of America’s failings, the campaign lacked a certain basic level of credibility. Accordingly, not even the most rabidly deluded Anglophile could keep a straight face when averring his undying commitment to the consumption of his Anglicized fast food and simultaneously denouncing the payment of royalties to France for the use of “French” in the name of his pommes frites. The inability to render Marxist colored ketchup as red, white, and blue undoubtedly had some psychological effect in this regard. In any case, the whole thing collapsed of its inherent self-mockery. As for the reasons the hamburger – a French name if there ever was one! – remained immune to the orgy of imbecility, I will leave that to a learned explanation by Graf von Waldersee.

  4. Wade Kane (Smsgt ret) says:

    Had the CIA done its job after the NVA used PT-76 tanks to over run our friends in Laos, the Royal Laotion Army, the CIA would not have insisted that the NVA did not have tanks in South Vietnam. The CiA continued to insist that the NVA did not have tanks in S. Vietnam. Had they done so it would have been easu to get the wire guided anti tank missles and launchers from our NATO ally France weeks before the Special Forces came was over run some 4 miles SW of Khe Sanh. All the torure and black sites did not get the vital inforation that te NVA did have tanks near Lang Vie. It took an Army soldier calling for help from he quick reaction force of the Marines (who din’t come to help) that there were “tanks in the wire at Lang Vei. for the CIA to admit that North Vietnam had actually “infiltrated” tank into South Viet Nam, Took about six days for the French to repsond and ship use wire guided antit tank missles to the Khe Sahn ares. Lets cut the CIA budgeo some sensifble figure like $1 a year.

  5. David Doppler says:

    In his book, JFK and the Unspeakable: Why He Died and Why it Matters, James Douglass lays out very clearly that, from its beginning, the CIA was expected to, and empowered to, perform covert acts (such as assassinating foreign leaders or otherwise promoting coups, smuggling drugs, or other illegal actions that advanced some covert purpose) that would be designed to hide US involvement entirely, and that, should the “cover” be blown, damage control could be restricted to a very small group of actors who could be sacrificed as “rogue agents.” No written orders or other hard evidence would exist, and those involved would be steeped in a culture that made it their higher duty to lie under oath, if necessary, in order to contain the damage. The president or lesser political leaders could be insulated by “plausible deniability.” The whole initiative was justified as required to combat the global threat of Godless Communism, which was perceived as on a march to destroy democracy, and under no compunction to follow the rule of law. See text and notes in Douglass, JFK and the Unspeakable: Why He Died and Why it Matters, Chapter One, notes 130 through 144

    Proving the lesson of history that most concerned our founding fathers, once such power was created and placed beyond the reach of accountability, there is no controlling it. It will be abused. Being surprised that people in the national security apparatus deliberately lie to the Congress and the public is a mark of naivete and failure to understand the history and the culture from which such phenomena flow.

  6. emptywheel says:

    @David Doppler: But you’ll note your example is inapt, because this covert program, unlike the discrete efforts to kill Castro, involves quite a bit of documentation (partly done by TEnet as CYA).

    I don’t think anyone here, especially, is “naive” about what is going on. Rather, there are new details to all this that surprise even those who had been in the inside before.

    It follows on those earlier precedents but it also adds to them.

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