Was the CIA Behind the Attack on the North Korean Embassy in Spain? Probably Not

Investigators from the Spanish police and National Intelligence Center (CNI) have linked an attack on the North Korean embassy in Madrid on February 22 to the US Central Intelligence Agency (CIA). According to Spanish investigators, two of the men who broke into the diplomatic headquarters have connections to the US intelligence service

El Pais reports:

At least two of the 10 assailants who broke into the embassy and interrogated diplomatic staff have been identified and have connections to the US intelligence agency. The CIA has denied any involvement but government sources say their response was “unconvincing.”

If it is proven that the CIA was behind the attack, it could lead to a diplomatic spat between Madrid and Washington. Government sources say that it would be “unacceptable” for an ally to take such action. Not only would it mean that the US agency had operated on Spanish soil without asking for authorization or informing the authorities, it would also be a violation of the international conventions that protect diplomatic delegations.

What’s more, unlike other intelligence activities — such as cyberattacks, which are characterized by their discretion, the attack on the North Korean embassy was especially violent. On February 22 at 3pm, 10 masked men carrying alleged imitation weapons broke into the embassy, located north of the capital in the residential area of Aravaca. They tied up the eight people inside and put bags on their heads. The victims were beaten and interrogated. A woman managed to escape from a window on the second floor and her screams for help were heard by a neighbor, who contacted the police.

Investigators from the General Information Office (CGI) and CNI ruled out the idea that the attack was the work of common criminals. The operation was perfectly planned as if it were carried out by a “military cell,” said sources close to the investigation. The assailants knew what they were looking for, taking only computers and mobile phones.

The highly secretive investigation will be heard at Spain’s High Court, the Audiencia Nacional, which could order the arrest of the identified assailants. Government sources, however, admit it would be difficult to prove the CIA was involved in court.

Sources believe that the goal of the attack on the North Korean embassy was to get information on Kim Hyok Chol, the former North Korean ambassador to Spain.

The Original Report from El Pais states:

The police and the National Intelligence Center (CNI) responsible for investigating the assault on the North Korean Embassy in Madrid on February 22 involve the Central Intelligence Agency (CIA) in that dark episode. At least two of the 10 assailants, who beat and interrogated the eight people who were in the legation, have been identified and have links to the US secret services. Spanish interlocutors have asked the CIA for their involvement in the case. The response has been negative, but “unconvincing”.

The assault on the North Korean Embassy may end up causing diplomatic friction between Madrid and Washington. Government sources admit that if the authorship of the CIA is confirmed, it would be an “inadmissible” action by an allied country. Not only the US intelligence services would have operated on Spanish soil without asking for authorization or informing their hosts, but they would have violated the international conventions that protect diplomatic legations.

In addition, unlike other actions of espionage services, such as cyber attacks — which are characterized by their discretion and whose authorship can rarely be accredited -, the assault on the North Korean Embassy was especially violent. Ten men, with allegedly simulated weapons, stormed around 3:00 pm on February 22 at the North Korean Embassy in Spain, in the Aravaca neighborhood of Madrid.

To the eight people who were in the legation they put bags on their heads. They were bound, beaten and interrogated. The screams of a woman, who managed to escape through a window on the second floor, alerted a neighbor, who warned the police.

The investigation, in charge of the General Information Office and the National Intelligence Center (CNI), ruled out that the assault was the work of a band of common criminals. The operation was perfectly planned, as if it were a military command, and the assailants knew what they were looking for; No money or jewelry, only computer files and cell phones, which were taken.

After analyzing the recordings of the security cameras in the area, questioning the hostages and analyzing the diplomatic vehicles used in the flight, it has been possible to identify some of the assailants. Although the majority were Koreans, at least two of them have been recognized by the Spanish information services for their links with the American CIA.

The indications that point to the US espionage service, in probable cooperation with that of South Korea, are so strong that Spanish interlocutors have contacted the CIA to ask for explanations. The response was negative, but “unconvincing”, according to Government sources.

The investigation, surrounded by the maximum secret, depends on the Court 5 of the National Court, which could order the arrest of the identified assailants. It is unlikely, however, that the involvement of the CIA can be judicially proven, the same sources admit.

Was the CIA behind the attack? I cannot conclusively say it was or wasn’t, as I am not privy to such information. However I can say it is highly unlikely that the CIA Directed this attack for the reasons below.

To begin with, only the president can direct the CIA to undertake a covert action. Such actions usually are recommended by the National Security Council (NSC). Covert actions are considered when the NSC judges that US foreign policy objectives may not be fully realized by normal diplomatic means and when military action is deemed to be too extreme an option. Therefore, the Agency may be directed to conduct a special activity abroad in support of foreign policy where the role of the US government is neither apparent nor publicly acknowledged. Once tasked, the intelligence oversight committees of the Congress must be notified. The CIA is not a policy-making organization; it advises the Director of National Intelligence on matters of foreign intelligence, and it conducts covert actions at the direction of the President.

To summarize, the CIA may also engage in covert action at the president’s direction in accordance with applicable law. What would be the applicable law here? Executive Order 12333 delegates the National Security Council to act as the highest ranking executive branch entity that provides support to the President for review of, guidance for, and direction to the conduct of all foreign intelligence, counterintelligence, and covert action, and attendant policies and programs.

The NSC considers and submits to the President a policy recommendation, including all dissents, on each proposed covert action and conducts a periodic review of ongoing covert action activities, including an evaluation of the effectiveness and consistency with current national policy of such activities and consistency with applicable legal requirements. The NSC performs such other functions related to covert action as the President may direct, but does not undertake the conduct of covert actions. The NSC also reviews proposals for other sensitive intelligence operations.

What is Covert Action defined as? Covert action means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include:

(1) Activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities;

(2) Traditional diplomatic or military activities or routine support to such activities;

(3) Traditional law enforcement activities conducted by United States Government law enforcement agencies or routine support to such activities; or

(4) Activities to provide routine support to the overt activities (other than activities described in paragraph (1), (2), or (3)) of other United States Government agencies abroad.

So how does this relate to the above case? First, all intelligence activities of the Agency must be properly authorized pursuant to the law. In this respect, the constraints on the Agency exceed those on virtually any organization in the private sector. A business enterprise is free to do whatever it wants in pursuit of profit, shareholder value, or what-have-you, provided it does not violate the proscriptions of positive law. By contrast, the CIA cannot do anything without an affirmative grant of legal authority to engage in that activity. In some cases, such as foreign intelligence collection, the grant may be broad; in others, such as covert action, the grant of authority might be quite narrow and specific, and subject to numerous conditions. In any event, before any step is taken, the threshold question asked when considering a contemplated activity is, “do we have the legal authority to act?”

Second, all intelligence activities of the Agency must be conducted in accordance with the law. Assuming there is legal authority to act in the first place, all steps taken must comply with applicable prohibitions and limitations embodied in the United States Constitution, federal statutes, Executive Orders and other Presidential directives, and Agency regulations.

Okay, I have described the legal regime in which CIA operates. Now I would like to illustrate how the law is applied in practice, by reference to a hypothetical case.

Suppose that the CIA is directed to engage in activities to influence conditions abroad, in which the hand of the U.S. Government is to remain hidden, — in other words covert action — and suppose that those activities may include the use of force, including lethal force. How would such a program be structured so as to ensure that it is entirely lawful? Approaches will, of course, vary depending on the circumstances — there is no single, cookie-cutter approach — but I conceive of the task in terms of a very simple matrix.

First is the issue of whether there is legal authority to act in the first place. Second, there is the issue of compliance with the law in carrying out the action. For each of these issues, the US Government would look first, and foremost, to U.S. law. But the US Government would also look to international law principles. So envision a four-box matrix with “U.S. Law” and “International Law” across the top, and “Authority to Act” and “Compliance in Execution” down the side. With a thorough legal review directed at each of the four boxes, the Government would make certain that all potentially relevant law is properly considered in a systematic and comprehensive fashion.

These legal judgments are not just confined to the Agency. To the contrary, as the authority for covert action is ultimately the President’s, and covert action programs are carried out by the Director and the Agency at and subject to the President’s direction, Agency counsel share their responsibilities with respect to any covert action with their counterparts at the National Security Council. When warranted by circumstances, CIA and NSC — may refer a legal issue to the Department of Justice. Or may solicit input from our colleagues at the Office of the Director of National Intelligence, the Department of State, or the Department of Defense, as appropriate.

Getting back to my simple matrix …

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

First, the Government 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. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

2) Next we look at Authority to Act with reference to International Law Principles.

Here we need look no further than the inherent right of national self-defense, which is recognized by customary international law and, specifically, in Article 51 of the United Nations Charter. Where, for example, the United States has already been attacked, and its adversary has repeatedly sought to attack since then and is actively plotting to attack again, then the United States is entitled as a matter of national self-defense to use force to disrupt and prevent future attacks.

The existence of an armed conflict might also provide an additional justification for the use of force under international law.

(3) Let’s move on to Compliance in Execution under U.S. Law.

First, the government would make sure all actions taken comply with the terms dictated by the President in the applicable Finding, which would likely contain specific limitations and conditions governing the use of force. The Government would also make sure all actions taken comply with any applicable Executive Order provisions, such as the prohibition against assassination in Twelve-Triple-Three. Beyond Presidential directives, the National Security Act of 1947 provides, quote, “[a] Finding may not authorize any action that would violate the Constitution or any statute of the United States.” This crucial provision would be strictly applied in carrying out our hypothetical program.

In addition, the Agency would have to discharge its obligation under the congressional notification provisions of the National Security Act to keep the intelligence oversight committees of Congress “fully and currently informed” of its activities. Picture a system of notifications and briefings — some verbal, others written; some periodic, others event-specific; some at a staff level, others for members.

(4) That leaves Compliance in Execution with reference to International Law Principles.

Here, the Agency would implement its authorities in a manner consistent with the four basic principles in the law of armed conflict governing the use of force: Necessity, Distinction, Proportionality, and Humanity. Great care would be taken in the planning and execution of actions to satisfy these four principles and, in the process, to minimize civilian casualties.

So there you have it: four boxes, each carefully considered with reference to the contemplated activity. That is how an Agency program involving the use of lethal force would be structured so as to ensure that it satisfies applicable U.S. and international law.

Under U.S. law, the Central Intelligence Agency must lead covert operations unless the president finds that another agency should do so and properly informs the Congress. Normally, the CIA is the U.S. government agency legally allowed to carry out covert action.The CIA’s authority to conduct covert action comes from the National Security Act of 1947. President Ronald Reagan issued Executive Order 12333 titled United States Intelligence Activities in 1984. This order defined covert action as “special activities”, both political and military, that the US Government could legally deny. The CIA was also designated as the sole authority under the 1991 Intelligence Authorization Act and in Title 50 of the United States Code Section 413(e).

The CIA must have a “Presidential Finding” issued by the President of the United States in order to conduct these activities under the Hughes-Ryan amendment to the 1991 Intelligence Authorization Act. These findings are then monitored by the oversight committees in both the U.S. Senate and the House of Representatives. As a result of this framework, the CIA receives more oversight from the Congress than any other agency in the federal government. The Special Activities Division (SAD) is a division of the CIA’s Directorate of Operations, responsible for Covert Action and “Special Activities”. These special activities include covert political influence and paramilitary operations.

The CIA’s director is required to notify the congressional intelligence oversight committees when the president recommends a covert action. Undertaking a covert action also requires a “finding,” a document that spells out the scope and justification of the action. That document is supposed to be transmitted to Congress in a timely manner–generally understood to be within 48 hours or so.

Why would the United States undertake a covert action? Because the president believes that it would be contrary to American interests if U.S. sponsorship of the operation were known. And why wouldn’t the United States want its fingerprints on that operation? One reason could be the desire to change a foreign government’s policies without undermining that government by making it appear to be backing down under U.S. pressure. Another reason could be to protect an intelligence source who might be fingered if the United States came to the source’s defense in an obvious way. And remember, a covert action is not necessarily a paramilitary operation. Covert actions can include propaganda campaigns or funding opposition forces such as Afghanistan’s Northern Alliance.

Covert actions differ from clandestine actions such as military invasions that are announced publicly soon after the fact. Covert actions require unusual secrecy, and they may or may not become public. National security information is automatically declassified after 25 years in accordance with President Clinton’s executive order 12958, but there are nine exceptions to that rule. Exempt categories include information about 1) intelligence sources and methods; 2) weapons of mass destruction; 3) U.S. cryptologic systems; 4) state-of-the-art weapons technology; and 5) military war plans that remain in effect. Other exempt categories include information that would demonstrably impair 6) U.S. relations with a foreign government; 7) the ability of the government to protect the president, vice president, or other officials; and 8) current national security emergency preparedness plans. The ninth exemption is for information that would violate a statute, treaty, or international agreement. The Special Activities Division (SAD) is a division of the CIA’s Directorate of Operations, responsible for Covert Action and “Special Activities”. These special activities include covert political influence and paramilitary operations.

Considering this process, its highly unlikely that this Covert Action would meet the legal requirements necessary and its highly unlikely that it would be approved by the President or even recommended by the National Security Council to begin with. Considering that this action would be a violation of International Law, as the US Government would be in violation international conventions that protect diplomatic legations.

The Story also says “the victims were beaten and interrogated. A woman managed to escape from a window on the second floor and her screams for help were heard by a neighbor, who contacted the police.” President Obama eliminated even the most interrogation techniques by executive order, and required that all interrogations follow the Army Field Manual. Executive Order 13491 states:

Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2 22.3 (Manual). Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes. Where processes required by the Manual, such as a requirement of approval by specified Department of Defense officials, are inapposite to a department or an agency other than the Department of Defense, such a department or agency shall use processes that are substantially equivalent to the processes the Manual prescribes for the Department of Defense. Nothing in this section shall preclude the Federal Bureau of Investigation, or other Federal law enforcement agencies, from continuing to use authorized, non-coercive techniques of interrogation that are designed to elicit voluntary statements and do not involve the use of force, threats, or promises.

The Army Field Manual is the highest, most restrictive form of custodial interrogation there is. This bars our intelligence community from using lawful interrogation techniques used every day by police departments and district attorneys questioning criminals for bread and butter crimes.

For example, federal prosecutors regularly remind criminals that life is a lot safer in a federal penitentiary than it is on Rikers Island, so they might want to plead guilty to a federal crime and avoid being violated by other prisoners. And district attorneys regularly tell criminals that they have committed a capital crime punishable by death, but if they cooperate they’ll seek life in prison instead. Under the Army Field Manual you can’t do that to a terrorist. There are documented cases of FBI agents at Guantanamo Bay refusing to tell terrorists they have committed a capital crime, because under the Army Field Manual you can’t threaten a prisoner in any way.

Assuming there is legal authority to act in the first place, all steps taken must comply with applicable prohibitions and limitations embodied in the United States Constitution, federal statutes, Executive Orders and other Presidential directives, and Agency regulations. The Government would have to make sure that all actions taken comply with any applicable Executive Order provisions, beating victims for information wouldn’t apply with applicable law in this scenario, either US or International Law and Policy. The CIA is also obligated to report to the Department of Justice potential violations of federal criminal law by employees, and if this occurred would do so in this case.

The article states “Although the majority were Koreans, at least two of them have been recognized by the Spanish information services for their links with the American CIA”. This is a vague statement, were the two men CIA Employees with the Special Activities Division or Special Operations Group? Or simply two foreign CIA Assets? Two individuals who may have or may have had a connection with the CIA is another thing entirely from the idea that the CIA or US Government were behind a Paramilitary Assault alongside South Korean Intelligence Services on a Foreign Embassy. It isn’t to implausible to think that two former CIA Assets could have been contracted by say the South Korean Government to help carry out this assault. But thats another thing entirely from saying that the United States Government was behind the Operation.

Is it possible that the CIA had knowledge of the attack, possibly. It may even be possible that the US Government launched the attack. However for all the reasons stated above, I find it highly unlikely that the United States Government or the CIA were behind the attack. That isn’t how the CIA Operates, the CIA Operates in the shadows, it doesn’t attack Embassies out in the open brazenly. The CIA places assets inside embassies, it doesn’t attack them (CIA guidelines § 9.3.1(a). Unless Spanish Authorities can provide the world with clear evidence that the CIA was behind the attack and further expand on the connections the two men had with the CIA, we should remain skeptical of these claims. As the probability is that the CIA or the US Government weren’t behind the assault. A stronger case could probably be made to point to the South Korean government KCIA being behind the attacks.

For additional reading:

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I Defend America and its Foreign Policy from a Liberal Perspective.

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James Slate

James Slate

I Defend America and its Foreign Policy from a Liberal Perspective.

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