In the month since veteran journalist Seymour Hersh published his bombshell report alleging that President Joe Biden personally authorized a covert action to bomb the Nord Stream pipelines, we’ve seen a frenzy of speculation, detailed dissection of Hersh’s specific assertions, and the emergence of competing narratives both supporting and denouncing the report.
The question of whether Hersh’s story is accurate — either in whole or in part — is of monumental significance, and there are some issues related to this story that have not received as much attention as they deserve. Among these are questions surrounding the legal and constitutional framework the Biden administration would have used if, as Hersh’s source alleges, Biden directly ordered the bombing of the Nord Stream pipelines. There is also an emerging counternarrative to Hersh’s reporting from U.S. intelligence that warrants scrutiny, both on its merits and for how it might relate to Hersh’s story.
“A Pro-Ukrainian Group”
On March 7, the New York Times and the German newspaper Die Zeit both published stories that thicken the plot. The Times story was based on a narrative clearly being pushed by U.S. intelligence sources that “a pro-Ukrainian group carried out the attack.” The Times asserted that a “review of newly collected intelligence suggests they were opponents of President Vladimir V. Putin of Russia, but does not specify the members of the group, or who directed or paid for the operation.” The report was spartan in its specifics, used no named sources, and seemed reminiscent of other efforts by anonymous U.S. intelligence sources to launder a narrative under the guise of a news scoop. “U.S. officials declined to disclose the nature of the intelligence, how it was obtained or any details of the strength of the evidence it contains,” the report said. “They have said that there are no firm conclusions about it, leaving open the possibility that the operation might have been conducted off the books by a proxy force with connections to the Ukrainian government or its security services.”
The Times report was almost immediately contested by reporting in CNN and the Washington Post, downplaying the certainty of U.S. officials that the intelligence was accurate. An unnamed senior administration official told the Washington Post, “My understanding is that we don’t find this conclusive.” The Ukrainian government has denied any connection to the operation, saying it “absolutely did not participate in the attack on Nord Stream 2.”
Die Zeit’s investigation, conducted with public broadcasters ARD and SWR, was based on a German criminal probe led by the federal police. Die Zeit reports that its journalists identified the boat that was allegedly used in the operation. “It is said to be a yacht rented from a company based in Poland, apparently owned by two Ukrainians. According to the investigation, the secret operation at sea was carried out by a team of six people. It is said to have been five men and one woman,” according to the report. “The group consisted of a captain, two divers, two diving assistants and a doctor, who are said to have transported the explosives to the crime scenes and placed them there. The nationality of the perpetrators is apparently unclear.” They allegedly “used professionally forged passports, which are said to have been used, among other things, to rent the boat.”
In response to the story, Germany’s defense minister Boris Pistorius said, “We need to clearly differentiate whether it was a Ukrainian group that acted on the orders of Ukraine or … without the government’s knowledge.”
These new reports offer no concrete evidence or credible explanation for how this alleged group may have conducted the sabotage operation.
Die Zeit’s story appears to challenge Hersh’s central narrative, which offered a mass of detailed information about how exactly the U.S. allegedly carried out its attack on the pipeline, including details about the specific forces and ships involved in the operation and a technical description of how they planted and detonated the explosives. But these new reports do not actually contradict Hersh’s story, because they offer no concrete evidence or credible explanation for how this alleged group may have conducted the sabotage operation.
The German report, written by Holger Stark, made no allegation of any nation-state involvement in the attack but noted that “it is not excluded that this is also a false flag operation,” which “means that traces could also have been deliberately laid that point to Ukraine as the culprit. However, the investigators have apparently found no evidence that confirms such a scenario.” In an interview with a German radio station, Pistorius said he cannot rule out a “false flag” operation “to blame pro-Ukrainian groups and make it look that way.” That probability, he asserted, was “equally high.”
Researchers specializing in open-source intelligence, or OSINT, have loudly concluded that Hersh’s reporting does not add up and is easily debunked by tracking publicly available data on the movements of ships, aircraft, and other vessels at the time of the alleged operation. Hersh has summarily dismissed these critics, asserting that U.S. intelligence understands quite well the need to circumvent such OSINT vulnerabilities and had taken measures — including, perhaps, the disabling of location transponders — to ensure the integrity of the operation. “If you’re in the intelligence community, you’ve been running covert ops for years,” Hersh said, “certainly, the first thing you look at is how to take care of open-source people, make them think what happened isn’t happening.”
Some of the doubts and criticism aimed at Hersh’s piece, especially the fact that it appears to rely on a single source, are valid, but Hersh has a long track record of breaking major stories about covert operations and U.S. war crimes. And he has frequently proved his critics wrong. Hersh’s narrative also has the benefit of abundant public circumstantial evidence in the form of statements by the president and his advisers appearing to threaten to take out the pipeline and then gloating once it was destroyed. The U.S. had the motive and the means to carry out the operation.
When Hersh contacted the Biden administration for comment on his story, a White House spokesperson said, “This is false and complete fiction,” while the CIA told him, “This claim is completely and utterly false.”
The New York Times has not published serious reporting — or any reporting — on the substance of Hersh’s allegations or the denials from the White House and other government agencies. But in its piece on the “pro-Ukrainian group” the Times mentions Hersh’s report in the 23rd graph of the story. “Last month, the investigative journalist Seymour Hersh published an article on the newsletter platform Substack concluding that the United States carried out the operation at the direction of Mr. Biden. In making his case, Mr. Hersh cited the president’s preinvasion threat to ‘bring an end’ to Nord Stream 2, and similar statements by other senior U.S. officials,” the report said. “U.S. officials say Mr. Biden and his top aides did not authorize a mission to destroy the Nord Stream pipelines, and they say there was no U.S. involvement.”
In an interview on “The Daily,” a New York Times podcast, one of the reporters on the story, Julian Barnes, was asked if he knows who did the bombing. “Yeah, we think we do know,” he replied. But later in the nearly 30-minute discussion, he said, “I should be very clear that we know really very little, right? This group remains mysterious and it remains mysterious, not just to us, but also to the U.S. government officials that we have spoken to. They know that the people involved were either Ukrainian or Russian or a mix. They know that they are not affiliated with the Ukrainian government, but they know they’re also anti-Putin and pro-Ukraine.”
Barnes described the evolution of the pro-Ukraine story as beginning with the Times reporters speaking to U.S. intelligence officials. He said that initially the Times had been focusing its probe into the bombing on the Russian and Ukrainian governments, but that it was “just hitting dead end after dead end,” so the reporters “started asking a different question: ‘Could this have been done by nonstate actors? Could this have been done by a group of individuals who were not working for a government?’” Barnes added, “The more we talked to officials who had access to intelligence, the more we saw this theory gaining traction.” Barnes did not mention Hersh’s story on the podcast.
Despite the claim that this story emerged from a speculative hunch on the part of the Times reporters, it certainly appears to be an effort by some forces within U.S. intelligence to rework and spin the previous narrative that sought to imply that Russia itself had blown up the pipeline. Germany, Sweden, Denmark, and other nations have spent months investigating the explosion. The Times story could be an indication that after doing forensic and other investigations, Washington’s allies do not believe that Russia was behind the attack. Several European media outlets, including the Times of London, reported that European investigators zeroed in on the alleged pro-Ukrainian group very soon after the explosion, despite the fact that it only hit the news media in the past week. It may turn out that this is precisely what happened, and that the U.S. had nothing to do with the operation. But it would be unwise — and would require a complete disregard of U.S. history — to assume without evidence that the inferences of anonymous U.S. officials are genuine.
“I don’t know what happened here but it would be naive and irresponsible for journalists to take U.S. intel agencies’ claims at face value,” said Jameel Jaffer, a former lawyer for the American Civil Liberties Union who spent years battling the Bush and Obama administrations over issues of secrecy and national security.
If the bombing of the Nord Stream pipelines was, as Hersh alleges, directed by the U.S., then the leaked suggestion that the culprits were a “pro-Ukrainian group” could indicate a nascent effort at floating a cover story. There is also the possibility that some elements within the U.S. government ran a covert operation using deniable assets, such as Ukrainian “partisans” operating with fake passports. Further, “pro-Ukrainian group” is so vague that it could apply to an infinite number of actors, including former U.S. military or intelligence personnel or those of an allied nation. Die Zeit reported that the alleged perpetrators rented a yacht from a Polish company owned by two Ukrainians. According to the report, the group failed to clean the yacht they allegedly used in the operation, leading investigators to discover residue from explosives on a table in the cabin. This is either unbelievably sloppy tradecraft, evidence of total amateurism, or an intentional “clue” left with the intent to deceive. The U.S. or another nation could have used such a team as a patsy operation to mislead investigators and cover the tracks of the actual perpetrators.
There are recent precedents for foreign actors taking credit for U.S. operations to conceal Washington’s involvement.
No one has claimed responsibility for this attack, but there are recent precedents for foreign actors taking credit for U.S. operations to conceal Washington’s involvement. This was the case when President Barack Obama authorized a cruise missile attack in Yemen in December 2009, which killed more than three dozen people, most of them women and children. The Yemeni government announced it had conducted the strikes, a claim later proven false when a journalist photographed the remnants of U.S. cluster munitions. In fact, this practice of cloaking the U.S. role in drone and other airstrikes in Yemen was common during the Obama administration.
European news outlets have been aggressively pursuing the story of the private boat that U.S. and German intelligence have suggested was used by the “pro-Ukrainian group.” Some of the open-source researchers who criticized Hersh’s version of events have also identified inconsistencies and problems with the initial reporting on this new theory. Among these are questions of how such a small vessel could have transported the quantity of explosives allegedly used in the attack on the Nord Stream, the extreme difficulty such a small team on a yacht would face in pulling off the operation, and the perplexing narrative about the alleged land route they used to deliver the explosives to the ship. Some analysts have also raised doubt that a small team of divers would have the technical capacity to have pulled off such a complicated and deep dive or why they would choose a difficult access point to place the explosives.
I am not saying I believe any specific theory about the Nord Stream explosion at present, including Hersh’s. But I am not about to denounce Hersh’s reporting. He has repeatedly been accused of being wrong, only later to be proven right. That was true of My Lai, it was true of the CIA’s domestic spying in the 1970s, and it was true of the secret plans to manufacture a “weapons of mass destruction” threat in Iraq, the Abu Ghraib torture scandal, and countless other stories throughout his career. I am confident that if Hersh publishes a story, he believes that it is true and that he has a source or sources he has deemed reliable who are providing information. That does not mean that he or his sources are always right about every detail. In that sense, the ultimate question of credibility for Hersh’s story rests exclusively on his source’s level of direct access to the planning and their personal firsthand knowledge about the execution of the operation.
Like many reasonable observers who understand the history of U.S. covert actions, I am following the developments closely, with an open mind. It is possible for a journalist to get many details correct while also being fed some unreliable information by sources who are passing off speculation as fact. This is one of the major risks of single-sourced reporting, no matter how reliable the source is. Very few people in government are privy to every single detail of a covert operation, and I know from experience that sometimes sources know a lot about some aspects of a program or operation but are trying to fill in the blanks about the aspects they do not know directly. This is not done out of malice or with an intent to deceive, but because that’s how many people operate. Sometimes it is difficult to parse fact from speculation with sensitive sources who are reluctant to talk, especially if the source does not make clear what they know to be true and what they suspect to be true.
It is also possible that sources themselves have been fed bad or incomplete information and pass it along sincerely believing it to be true. There are many instances too where assertions confirmed by more than one source and published by major publications with substantial resources turn out to be false. Despite getting some details wrong, it is still possible for a reporter to get the overarching conclusion right.
It remains conceivable that Hersh correctly identified the sponsor of the Nord Stream attack, even if some of the details provided by his source were speculative, inaccurate, or based on outdated operational plans.
Oversight and Authority
There is another important set of questions to consider: If the U.S. did carry out the strike on the Nord Stream with Biden’s direct authorization, under what authority would the operation have been conducted? Under what legal basis would Biden and his administration have to keep even senior congressional leadership out of the loop and then blatantly lie about it to the public?
It’s worth nothing that as a young senator, Biden played a role in creating the permanent congressional intelligence committees and in crafting laws regulating the oversight of the CIA and covert actions in the aftermath of the Nixon-era lawlessness.
First, let’s review what Hersh reported about the authorities at play in the alleged operation. “The CIA argued that whatever was done, it would have to be covert. Everyone involved understood the stakes. ‘This is not kiddie stuff,’ the source said. If the attack were traceable to the United States, ‘It’s an act of war.’”
According to Hersh, things changed after remarks Biden made on February 7, 2022, as he stood next to German Chancellor Olaf Scholz in the East Room at the White House. “If Russia invades … there will no longer be a Nord Stream 2. We will bring an end to it,” said Biden. “We will — I promise you, we’ll be able to do it.” Hersh’s source said the framework for the operation shifted to a military umbrella because senior CIA officers determined that destroying the pipeline could “no longer could be considered a covert option because the President just announced that we knew how to do it.” Hersh writes, “The plan to blow up Nord Stream 1 and 2 was suddenly downgraded from a covert operation requiring that Congress be informed to one that was deemed as a highly classified intelligence operation with U.S. military support. Under the law, the source explained, ‘There was no longer a legal requirement to report the operation to Congress. All they had to do now is just do it — but it still had to be secret.’”
“There is supposed to be at least some congressional notification of any covert action.”
I consulted several constitutional law scholars and experts on U.S. covert actions to explore the legal framework within which the Biden administration would have needed to operate to carry out such an operation. All of the sources I spoke with said it would be a serious violation of law if such a covert action were not briefed to at least some senior U.S. lawmakers. At a minimum, the operation would need to be reported to the so-called Gang of Eight — the House speaker and minority leader, the Senate majority and minority leaders, the chair and ranking members of both intelligence committees — either beforehand or, if necessary for the integrity of the operation, shortly thereafter. In that case, the president would be required to provide an explanation as to why Congress was not briefed ahead of time. In rare cases, presidents have chosen to brief only four members of Congress, though the practice has no basis in U.S. statute. “There is supposed to be at least some congressional notification of any covert action,” said Steven Aftergood, who served as director of the Government Secrecy Project at the Federation of American Scientists from 1991-2021. “If notification is not provided in advance, it must still be given in ‘a timely fashion.’ Failure to do so would be a violation of law.”
Within the U.S. laws governing military and intelligence operations, there are gray areas. Title 50 of the U.S. code sets out the rules and structures for intelligence operations, while Title 10 covers military actions. The code under which a particular operation is performed has serious implications for oversight and accountability. A covert action requires the drafting of a presidential “finding,” or memorandum of notification, and the White House must brief the House and Senate Intelligence Committees on its contents. This briefing must occur before the covert action unless there are “extraordinary circumstances.” The requirements for congressional involvement were established to prevent scandals such as the Bay of Pigs invasion of Cuba and other dubious CIA operations.
Military doctrine defines another class of activities, “clandestine operations,” in which the point of secrecy is to protect the integrity of the mission, not to conceal its sponsor, the U.S. government. The military may conduct operations that are both covert and clandestine, but these are rare. Unlike covert actions, clandestine operations do not require a presidential finding if “future hostilities” are “anticipated” in the country where they are taking place. Nor is the administration required to report the operation to Congress. Such operations are defined as “traditional military activities,” or TMAs, and offer the intelligence committees no real-time oversight rights. Under U.S. law, the military is not required to disclose the specific actions of an operation, but the U.S. role in the “overall operation” should be “apparent” or eventually “acknowledged.”
Hersh’s source said the “covert action” was officially changed to a U.S. military operation after Biden’s public threat and that it used regular U.S. Navy divers instead of those from U.S. Special Operations Command “whose covert operations must be reported to Congress and briefed in advance,” thus eliminating the reporting requirement to the intelligence committees. “What qualifies as TMA has long been a subject of push and pull between Congress and the executive,” said University of Houston constitutional law scholar Emily Berman. “So the bottom line is that what rules apply would depend on which authority the President relied on to carry out the mission, which will often not be evident.”
“To the extent that ‘traditional military activities’ can look a lot like covert actions, congressional notification is only required under Title 50 (covert action) operations, not Title 10 (military) ones,” explained Melinda Haas, an assistant professor of international affairs at the University of Pittsburgh, in an email. “It isn’t possible to know up front, however, whether a certain behavior is considered a ‘covert action.’”
The military, while not subject to the select committees on intelligence, does have its own reporting requirements to the Senate and House Armed Services committees. While there is a debate about what sort of congressional oversight would be required if the action was done under a military umbrella, it would be brazen for Biden’s administration and the Pentagon leadership to refuse to do so. Even the notoriously secretive and anti-oversight George W. Bush administration briefed four members of Congress, including Rep. Jane Harman, D-Calif., in January 2003 about the existence of CIA torture videos. It is also true that the CIA subsequently spied illegally on Senate torture investigators.
Robert Litt, the former general counsel for the Office of the Director of National Intelligence under President Barack Obama, told me that he thought it was unlikely that the U.S. carried out the operation, but that if it did so, regardless of which U.S. forces performed such an operation, it would still “fall within a well-established statutory framework for covert action.” Litt said, “If a ‘highly classified intelligence operation’ is intended to affect conditions abroad and not to be acknowledged, it is a covert action under the law, and has to be treated as such. I don’t think this would be considered to fall within the traditional military activity exemption even though that may be what [Hersh’s] source is imprecisely referring to.”
If, as Hersh’s source alleges, no members of Congress were read into this operation, it would mean that Biden essentially adopted an Iran-Contra-style strategy of boxing out legislative oversight entirely, potentially setting himself up for a public scandal of epic proportions. There is, however, precedent for this. A 1986 memo prepared by the Office of Legal Counsel during the Reagan administration argued that the president was “within his authority in maintaining the secrecy” of a covert operation “from Congress until such time as he believed that disclosure to Congress would not interfere with the success of the operation.”
While this is not unfathomable in light of U.S. history, that likelihood seems low when you look at the vast number of agencies and people within the U.S. government — including an interagency working group with people from the Joint Chiefs of Staff, the CIA, and the State and Treasury departments — who were allegedly working on the plans. Not to mention a foreign government and a cover story of a highly publicized NATO training exercise. This would mean mid-level U.S. government bureaucrats and foreign officials were read into the operation, but not senior members of Congress with statutory oversight authorities and sworn secrecy oaths.
“I believe that if this activity had been done by the U.S., it is almost certain that at least the Gang of Eight was informed, and by now probably the full committees as well,” said Litt. “Given the requirement of congressional briefing, the likelihood of leaks, and the political situation in Washington, I would doubt that the president would take the risk of actually lying had this been a U.S. operation.” Litt added: “My bottom line is that I think it is highly unlikely that if the U.S. did this Congress was not briefed.”
Beyond the issue of whether Congress was informed of the alleged operation, it’s hard to imagine a scenario, if Hersh’s source is accurate, in which no one involved eventually confirms at least parts of Hersh’s reporting, or intentionally or unwittingly leaks details and backs up the claims. According to Hersh’s source, there were dissenters within the CIA and State Department who said, “Don’t do this. It’s stupid and will be a political nightmare if it comes out.”
Hersh has been confronted with this exact question before, including after his 2015 story challenging the official narrative of the raid on Osama bin Laden’s compound was published. “How many people do you think in the American government in the years 2001, 2002, 2003 leading up to the late March attack on Iraq knew that the government was misrepresenting the intelligence on the WMD?” Hersh asked in an interview with NPR’s On the Media, adding that potentially thousands of government employees and contractors also knew that the National Security Agency was engaged in warrantless collection of the communications of American citizens prior to Edward Snowden’s revelations, but kept silent. “We’ve demonstrated that you can cow the bureaucracy, you can cow people to an extraordinary length in this society to the length where nobody’s going to go public on it,” Hersh added.
If the U.S. did blow up the pipeline, it could be that the administration did in fact inform some congressional leaders and they are assisting in concealing the operation. “I don’t know of any rule that would prevent the President from denying involvement in an operation that was designed to remain unacknowledged, as covert actions are,” said Berman.
“As for lying to the public, I’m not aware of any law that would prevent the President from doing that (there is certainly plenty of recent precedent for presidential prevarication), although more typically the approach is when asked about a covert action is not to comment,” Litt wrote in an email. He added that “the military’s position is that they will not affirmatively lie about military action.”
Regardless of the U.S. military’s official position on lying about its activities, it is undeniable that military officials have lied or misled the public at various points throughout U.S. history, including the recent case of an August 2021 drone strike in Afghanistan that killed 10 members of an Afghan family, including seven children. Whether it is lying or misdirecting the public in the Nord Stream case obviously depends on the veracity of the information provided by Hersh’s source. When the intent is to deceive an “enemy” nation or hostile force, rather than the U.S. public or Congress, the military has extensive guidelines for doing so.
Aftergood points out that there is no U.S. law or rule prohibiting the government from promoting a false alternative explanation to conceal an operation. “This is an established practice in military operations and intelligence activities where it is often known as ‘cover and deception,’” he said. “Sometimes, in order to maintain the operational security of X, you have to declare that it is actually Y.”
This content originally appeared on The Intercept and was authored by Jeremy Scahill.