Passing the Paramilitary Torch from the CIA to Special Operations Command

Douglas A. Livermore

Figure 1 - U.S. Army Special Forces Soldiers with Hamid Karzai during their unconventional warfare campaign that toppled the Taliban regime in Afghanistan, 2001. - U.S. Army Photo (Public Domain)

In the shadowy realm of international competition that falls below the threshold of traditional conflict, the United States continues to struggle to match near-peer competitors like Russia and China. The Russian-led paramilitary invasion of eastern Ukraine that began in mid-2014 has thus far prevented successive U.S.-backed Ukrainian governments from fully consolidating power or joining the North Atlantic Treaty Organization. In Syria, Russian private paramilitary companies have been crucial in propping up the regime of Bashar al-Assad. Over the last decade, China has built artificial islands and deployed paramilitary naval units to secure its illegal claim to the international waterways of the South China Sea – all without firing a single shot. These examples involved the use of paramilitary activities by America’s adversaries, a form of conflict to which the U.S. government has historically responded with the CIA. In this context, paramilitary activities involve the use of non-conventional or proxy forces to conduct sabotage, ambushes, or other low-visibility combat operations to undermine and contribute to the defeat of an adversary.

The CIA’s primacy in matters of paramilitary activities is well-established through existing Congressional legislation and presidential executive orders. However, today the United States faces serious threats from near-peer state adversaries, terrorist groups, and other sub-state actors that should lead its leaders to rethink its organizational and operational approaches to paramilitary activities to optimize both its capabilities and capacity to meet these threats. The U.S. Defense Department, specifically its subordinate U.S. Special Operations Command, is the organization best prepared to assume leadership of the U.S. government’s paramilitary efforts that are critical to supporting its national interests.

One of the major recommendations of the 9/11 Commission Report, delivered in 2004, was that the Defense Department should assume primary responsibility for U.S. government paramilitary activities from the CIA. That commission found that the CIA “relied on operatives without the requisite military training,” resulting in unsatisfactory results. Additionally, the report advised that the United States “cannot afford to build two separate capabilities for carrying out secret military operations, secretly operating standoff missiles, and secretly training foreign military or paramilitary forces.” In response, the Defense Department contracted a study that ultimately determined in 2005 that assuming control of paramilitary operations was inadvisable at that time given the Defense Department’s lack of internal capability, discomfort with existing legal strictures on Title 50 authorities, and concern over potentially increased Congressional oversight that would come with responsibility for paramilitary activities. In the twelve years since that study delivered its findings and recommendations, the Defense Department has developed its own clandestine intelligence and operational paramilitary capabilities. It is now the appropriate time to reassess and appropriately re-task the Department of Defense’s own U.S. Special Operations Command with primary responsibility for paramilitary activities. Historically, the CIA has a very poor track record of success in organizing and leading paramilitary campaigns, often relying on military special operations support. Other forms of covert action include propaganda to undermine confidence in or adherence to hostile governments and political action designed to support domestic parties in opposition to U.S. adversaries. Only a small number of the declassified CIA-led paramilitary campaigns between 1948 and 2001 were deemed “successful”, though propaganda and political covert actions fared better. While the bravery of CIA paramilitary operatives should be lauded and honored, the American people must be ensured that their paramilitary capabilities are better organized to best defend their interests in the future.

Capability

From a capabilities standpoint, U.S. Special Operations Command demonstrates comparable and, in some cases, superior capabilities of immediate applicability to paramilitary activities. Unbeknownst to many is the fact that U.S. Special Operations Command is already trained, equipped, and enabled to execute paramilitary operations. A core mission of U.S. Special Operations Command is “unconventional warfare”, which the National Defense Authorization Act (NDAA) for 2016 defines as “activities conducted to enable a resistance movement or insurgency to coerce, disrupt or overthrow an occupying power or government by operating through or with an underground, auxiliary or guerrilla force in a denied area." Of critical importance, the Defense Department Dictionary of Military and Associated Terms defines a “guerrilla force” as “a group of irregular, predominantly indigenous personnel organized along military lines to conduct military and paramilitary operations in enemy-held, hostile, or denied territory.” Assuming primary responsibility for paramilitary activities will not place additional strain on U.S. Special Operations Command as all of the components of paramilitary operations are already “part and parcel” of their core mission. While the entirety of U.S. Special Operations Command is tasked to conduct unconventional warfare, much of that capability resides in a subordinate element - U.S. Army Special Operations Command. Within this element, the Office of Special Warfare serves as the focal point for U.S. government-sponsored unconventional warfare.

U.S. Special Operations Command regularly demonstrates its ability to conduct “operational preparation of the environment” activities to support counterterrorism and unconventional warfare that seemingly only differ from paramilitary activities in the authorities under which they are executed. Whereas paramilitary activities is conducted under Title 50 of U.S. Code (USC), Operational Preparation of the Environment and other military activities are executed under Title 10 USC. More practically speaking, the CIA conducts paramilitary activities with the intention to effect some sort of fundamental change against a foreign target without the U.S. government’s role ever being clearly evident, while the Defense Department conducts Operational Preparation of the Environment ostensibly in support of traditional military activities that might reasonably demonstrate a U.S. government role at some point. However, the Defense Department now arguably characterizes activities that could easily be described as paramilitary activities as Operational Preparation of the Environment “where the slightest nexus of a theoretical, distant military operation might one day exist.” Consolidation of the covert paramilitary responsibility with existing Operational Preparation of the Environment requirements would not create so much of an additional burden on U.S. Special Operations Command as it would reduce duplication of capability at both the CIA and Defense Department.

To many even within the U.S. government, most of U.S. Special Operations Command’s Operational Preparation of the Environment activities are already virtually indistinguishable from the CIA’s paramilitary activities, as they employ many of the same methodologies to establish and manage human and physical infrastructure in semi-permissive and denied areas to support U.S. strategic objectives. Further highlighting this confused perception, the House Permanent Select Committee on Intelligence has previously argued that, “in categorizing its clandestine activities, the Defense Department frequently labels them as ‘Operational Preparation of the Environment’ to distinguish particular operations as traditional military activities and not as intelligence functions. The committee observes, though, that overuse of the term has made the distinction all but meaningless.” Shifting primacy of responsibility for paramilitary activities from the CIA to U.S. Special Operations Command and consolidating it with the existing Operational Preparation of the Environment mission would serve the dual purpose of maximizing the effectiveness of paramilitary capabilities while also potentially addressing the growing tensions related to the oversight disparity between paramilitary and clandestine activities.

Many naysayers of this proposal will argue that only the CIA has the means to safeguard the secrecy of such paramilitary activity and accomplish the mission with discrete U.S. government presence. This argument is less compelling given the CIA’s demonstrably poor track record in keeping U.S. government participation in paramilitary operations discrete, from the “Bay of Pigs” invasion of Cuba in 1961 to the recent paramilitary operation revealed in the Middle East. By comparison, U.S. Special Operations Command already has forces deployed around the world, accomplishing sensitive missions that largely go unnoticed. Additionally, the Defense Department already executes Special Access Programs that are waived and unacknowledged. Much like CIA paramilitary operations conducted under Presidential Findings, waived and unacknowledged Special Access Programs are “considered to be so sensitive that they are exempt from standard reporting requirements to the Congress” and are only briefed to highly-cleared members of the relevant Congressional committees. The Defense Department already has a well-established track record of ensuring the confidentiality of incredibly sensitive programs, requirements with which the CIA has shown some difficulty.

Capacity

Not surprisingly, the CIA has always relied extensively on Defense Department special operations forces to support its paramilitary activities ever since the National Security Act of 1947 first created the CIA. Every paramilitary operation from Tibet (1953-1972) to the modern era saw large numbers of the Defense Department special operations service members employed by the CIA using its authorities to execute the mission. While the CIA’s actual end strength of paramilitary skills officers is classified, most open-source estimates place its numbers at no more than a couple hundred exemplary Americans whose attentions are split between overseas assignments and headquarters duty at Langley. By comparison, U.S. Special Operations Command has nearly 70,000 total personnel assigned, of which the command already has 13,000 deployed around the world at any given time. As previously discussed, the Office of Special Warfare coordinates the unconventional warfare capabilities of five battalions’ (over 2,000 soldiers) worth of the U.S.’s finest practitioners of the paramilitary arts in support of every geographic combatant command (Africa, Europe, Central and South America, North America, Middle East, and Pacific). These numbers do not account for the tens of thousands of special operations members in other units trained in unconventional warfare. By outright assuming responsibility for all U.S. paramilitary operations, U.S. Special Operations Command will be able to leverage its full capacity to conduct the preparatory undertakings for and execution of successful paramilitary activities, thereby increasing options for U.S. policymakers. Clearly, U.S. Special Operations Command now has a much greater capacity to fulfill current and future paramilitary requirements that will only continue to grow in scale.

Moreover, CIA recruits many of its paramilitary operatives directly from U.S. Special Operations Command, thanks largely to the previously discussed and well-established operational relationship between the CIA and Defense Department special operations forces. Most national security experts believe that there is no way that the U.S. government could even come close to meeting its current capacity needs for paramilitary activities without U.S. Special Operations Command support. As the evolving global security environment will clearly require additional paramilitary capacity, the CIA will find itself further unable to meet those requirements through its own internal mechanisms and become more reliant on U.S. Special Operations Command. As such, transferring primary responsibility for paramilitary activities from the CIA to Defense Department would simply be a recognition that the majority interest in and capacity for paramilitary activities resides in the Defense Department. In turn, U.S. Special Operations Command, with its larger personnel reserves and budgetary appropriations, will provide the U.S. government and American people with a more robust and efficient paramilitary activities capacity when and where it is most needed.

Legality and Oversight

Legally speaking, the Defense Department possesses both the legislative and executive authorities and permissions to assume primary responsibility for paramilitary activities consistent with the recommendations of this article. Legislatively, the National Security Act of 1947, 1991 Intelligence Authorization Act, and Title 50 of USC all previously designated the CIA as the office of primary responsibility for paramilitary activities. However, the Secretary of Defense also possesses Title 50 authorities which are regularly applied to support paramilitary activities and other intelligence activities. President Ronald Reagan’s Executive Order 12333, which President George W. Bush amended with Executive Order 13470, similarly reinforced CIA primacy for paramilitary activities. However, Executive Order 13470 importantly established a specific exceptions for transferring that responsibility to other agencies. The language of Executive Order 13470 clearly states that the President may direct other agencies to lead paramilitary efforts if he or she “determines that another agency is more likely to achieve a particular objective.” Given the arguments previously presented in this article, it is clear that the Defense Department is now the most appropriate agency to lead U.S. government paramilitary activities efforts moving forward.

The consolidation within the Defense Department of covert paramilitary activities and unconventional warfare efforts will ensure better oversight, as all such activities would then require Presidential Findings and the associated reporting to all of the interested Congressional committees. This approach will resolve a long-standing tension between the Congressional defense committees related to the oversight of covert and clandestine activities. The recommendation to consolidate paramilitary activities in the Defense Department previously met resistance from both the Pentagon and CIA for very different reasons that both stemmed from bureaucratic interests. In the case of the Defense Department, there was reluctance to delve deeper into Title 50 missions that brought additional approval and oversight requirements. For the CIA, the prospect of ceding a very important, and suddenly prestigious, mission was also very unattractive. These perspectives resistant to the transfer of paramilitary activity responsibility to the Defense Department appear rooted in arguments that, while maybe valid when the 2005 Defense Department study presented its finding, are no longer the case. What has not changed are the reasons for the 9/11 Commission’s original findings: that CIA has consistently faltered in its execution of paramilitary operations and that the country can ill afford to fund two identical capabilities at the CIA and Defense Department. It is high time to consolidate paramilitary activities at the Defense Department.

To affect the seamless transfer of primacy for paramilitary activities responsibility from the CIA to Defense Department, there are several recommendations that can and should be implemented. The Executive Branch should draft and issue an executive order amending Executive Order 12333 further to transfer primary responsibility for planning and conducting paramilitary activities from the CIA to the Defense Department. Consistent with the existing Executive Order 13470 language, paramilitary activities will still require a Presidential Finding and reserve for the President the authority to designate other agencies to lead paramilitary activities if the conditions warrant. As paramilitary activities already require coordination through the National Security Council and interagency cooperation, this process will remain under the new construct. Except now, the Defense Department will brief the properly-cleared members of the National Security Council and Congressional defense and intelligence committees. The CIA will remain a critical supporting agency for paramilitary activities, but will respond to Defense Department direction on such campaigns.

Congress, for its part, would need to pass the requisite legislation to enable the Defense Department to assume this responsibility through appropriate reorganization, appropriations, and oversight mechanisms. Currently, Title 10 of USC does not specify paramilitary activities as a primary mission for U.S. Special Operations Command, which will require an amendment to Title 10, the invocation of Title 50 by the Secretary of Defense, or the creation of an entirely new legislative authority for U.S. Special Operations Command to exercise its authority as lead department for paramilitary activities. The next NDAA should direct U.S. Special Operations Command, through the Assistant Secretary of Defense for Special Operations and Low-Intensity Conflict, to reorganize to facilitate paramilitary activities within the Defense Department. This reorganization might be affected through amendment of the existing reorganization requirements levied in Section 922 of the FY17 NDAA. Section 922 previously directed this office to assume “service-like” responsibility for U.S. Special Operations Command.

Next, the appropriations committees should explore additional funding lines to allow U.S. Special Operations Command to assume its new paramilitary activities leadership role and draft required legislative language into the next NDAA. An amendment to Section 1202 of the FY18 NDAA, which authorized funding for “the irregular warfare tools and resources required to impede the progress of near peer advances in the competitive space short of war”, would provide a good starting point from which to expand U.S. Special Operations Command’s paramilitary capabilities. Unfortunately, this line of effort was only funded for $10 million dollars in the FY18 NDAA, far beneath the amount needed given the scale of the challenge posed by these competitors. A considerable increase in funding under Section 1202 would enable U.S. Special Operations Command personnel, who are already on the front lines alongside our international allies and partners in the “shadow war” against China, Russia, and Iran, to better counter these competitors’ destabilizing activities in the South China Sea, Eastern Europe, and the Middle East.

Conclusions

Perhaps the most important change that will be required for U.S. Special Operations Command to assume full responsibility for U.S. government-sponsored paramilitary activities will be one of mindset. After almost two decades of mostly overt and highly kinetic counterterrorism activities conducted in Iraq and Afghanistan, an argument has been made that U.S. Special Operations Command, as an organization, lacks the mindset necessary for successfully executing irregular activities under politically sensitive conditions. In recognition of this criticism, U.S. Army Special Operations Command established its Office of Special Warfare, organized battalions of troops specifically trained to conduct unconventional warfare, and is assuming its role as U.S. Special Operations Command’s focal point for related activities. Similarly, U.S. Special Operations Command’s Joint Special Operations University, which is based at the command’s headquarters on MacDill Air Force Base, now offers a myriad of courses for U.S. Special Operations Command operators, support personnel, and senior leaders that address these shortcomings. The Joint Special Operations University’s most applicable offering, “Special Operations Forces Sensitive Activities in the Contemporary Operational Environment” (previously called “Covert Action and Special Operations Forces Sensitive Activities”), provides instruction that “explores covert action and sensitive military activities as important options for national security practitioners and decision makers”.

The American people deserve the most effective, efficient, and robust paramilitary capabilities that the nation can muster, and the U.S. government should compel the CIA and Defense Department to execute this recommended restructuring. Close collaboration, coordination, and synchronization of efforts will reinforce the importance of interagency integration and demonstrate the wisdom of this undertaking. This logical effort will, ultimately, better enable the U.S. government to fulfill its most sacred duty to the American people – protecting their vital national interests and way of life from those adversaries and competitors who would endeavor to do them harm.