CIA Headquarters Courtyard, Langley, Va. (Source: Flicrk/Central Intelligence Agency) I recently was a guest lecturer on covert action in a law school seminar. For anyone interested, my instructional approach (fictional scenario, issues for consideration, operational proposals) is available here —feel free to use it (or, better yet, improve on it). In this post I offer a few practitioner-focused thoughts on the “why,” “what” and “how” that informed my planning for this class. I hope this background description and approach are useful to others teaching about covert action.
I qualify as a “practitioner” in this area; post-9/11, most of my legal work was as an operational lawyer at the CIA’s Office of General Counsel working with CIA officers and managers responsible for implementing sensitive programs. Lawyering in this context is never dull— the real-world fact patterns alone guarantee that. This type of lawyering also involves a range of substantive legal knowledge (e.g., the legal doctrine of covert action) and experience, client communication and counseling skills, and a genuine professional appreciation for the significance of covert action in terms of governmental authority. My goal was to bring this more holistic perspective alive for law students.
Law school instruction on covert action is important for a range of reasons. Covert action authority represents a significant legal construct that law students wishing to be conversant in the substance of national security need to understand—in terms of the real-world scope (influencing political, military and economic conditions abroad) and the range of risks and the legal obligations. The concept of covert action remains a timely topic in discourse surrounding the toolkit of U.S. foreign policy and national security, and there is an increasing overlap between covert action and non-covert action activities (e.g., U.S. special forces). Additionally, lawyering in this context involves and in certain ways accentuates fundamental attributes of national security lawyering, in particular, client communication skills and professional responsibilities. And (compared to many other areas of national security law) the National Security Act of 1947 provides relevant statutory black letter law.
Against that backdrop (and the reality that I had about 100 minutes of classroom time), my […]