Was the C.I.A. Director in Charge of the Bin Laden Operation? Apparently so. Does It Matter?

[Major John C. Dehn is an Assistant Professor in the Department of Law, US Military Academy, West Point, NY. He currently teaches International Law and Constitutional and Military Law. He is writing in his personal capacity and his views do not necessarily represent the views of the Department of Defense, the US Army, or the US Military Academy. The analysis presented here stems from his academic research of publicly available sources, not from protected operational information from, or actual involvement in, aspects of this or any other military operation.]

I want to start by noting that the debate between Kevin and Michael Lewis is an important one, one that I raised in recent remarks at St. John’s Law School’s Center for International and Comparative Law inaugural symposium. The current differentiation in the jus in bello trigger between states and non-state actors is an important one, one that may ultimately disappear through state practice given the grave nature of threats posed by non-state actors exploiting modern technologies. What I mean is that it is generally believed, as Kevin indicates, that IHL is triggered by any use of force between states, but only by sufficiently intense and protracted hostilities between a state and non-state armed force of sufficient organization (or between two such non-state groups). Kevin offers a fair argument regarding the applicability of IHL based on the ICTY and ICJ case law, Michael a good one based on the way things seem to actually work in state practice. Unlike Michael, I read Jordan Paust to argue that IHL should apply by analogy to acts of Article 51 self-defense against non-state actors not reaching the armed conflict threshold. I intend to write much more on this topic in the future because, as Kevin seems to grasp, removing the differentiation between attacks against states and non-state actors in this context might allow opportunistic resort to the IHL paradigm in questionable cases.

With all of that that said, in the various press reports about the recent operation against Osama bin Laden, one fact strikes me as worthy of note. It seems that the CIA was in charge of this “military operation” justified in part by resort to the Authorization for the Use of Military Force (but in the usual manner, a general right of self-defense has also been asserted).

CBS reported this command arrangement as fact. The New York Times reported, “The president and his advisers watched … the C.I.A. director, on a video screen, narrating from his agency’s headquarters across the Potomac River what was happening in faraway Pakistan.” And earlier in that article,

“In February, Mr. Panetta called Vice Adm. William H. McRaven, commander of the Pentagon’s Joint Special Operations Command, to C.I.A. headquarters in Langley, Va., to give him details about the compound and to begin planning a military strike.

Admiral McRaven … spent weeks working with the C.I.A. on the operation, and came up with three options: a helicopter assault using American commandos, a strike with B-2 bombers that would obliterate the compound, or a joint raid with Pakistani intelligence operatives who would be told about the mission hours before the launch.”

It seems fairly clear that this was a CIA operation for which the U.S. military served as the tip of the spear, and that this is part of the new way of warfare. The National Journal reports, “a senior intelligence official said the two proud groups of American secret warriors had been “deconflicted and basically integrated” — finally — 10 years after 9/11.” And further,

“Under a variety of standing orders, JSOC is involved in more than 50 current operations spanning a dozen countries, and its units, supported by so-called “white,” or acknowledged, special operations entities like Rangers, Special Forces battalions, SEAL teams, and Air Force special ops units from the larger Special Operations Command, are responsible for most of the “kinetic” action in Afghanistan.”

The OBL operation is an example of an evolving and unique relationship between the military and the CIA that is, in my humble opinion, under-examined and under-theorized both with respect to the international and domestic legal frameworks and as an element of civil-military relations. Over at Lawfare, a recent post by Bobby Chesney raises intelligence oversight issues about the OBL operation, which seems to me only one aspect of the necessary constitutional/domestic legal analysis. Ben Wittes solicited Mary Ellen O’Connell — twice — for her views on the international legal framework applicable to the operation. Her post below seems to present an implausible view of the attack as a law-enforcement operation. Assuming it is best characterized as a military operation conducted to IHL standards, as Kevin and Michael both seem to agree, may the C.I.A. lawfully oversee it?

Perhaps this is a distinction with no legal difference. The President is Commander-in-Chief of the armed forces and also the Chief Executive directing the C.I.A. So long as the operation comports with IHL, the only difference in this context may be whether his operational order passes through a civilian director of the C.I.A. to the military, or whether that order passes through a civilian Secretary of Defense. Presumably, the civilian leaders and military unit implementing the President’s directive have the same responsibilities to observe relevant international and domestic law. Thus, there should be no difference regarding the relevant legal analysis in principle.

But I wonder whether there is any meaningful difference in the law applicable to the C.I.A. and armed forces, and whether any such difference matters from the perspective of international law. I wonder, particularly, about the extent to which domestic law requires compliance with relevant IHL.

Article 18 of the Uniform Code of Military Justice (UCMJ) vests general courts-martial with power to “adjudge any punishment permitted by the law of war.” (10 U.S.C. sec. 818) Thus, Congress authorizes punishment for both customary and conventional IHL violations by members of the armed forces, thereby ensuring as best it can our military’s compliance with IHL.

But statutes regarding C.I.A. activities have no parallel provision of which I am aware. In fact, when the President authorizes covert C.I.A. action, the National Security Act requires compliance only with domestic law. (“A finding may not authorize any action that would violate the Constitution or any statute of the United States.” 50 U.S.C. sec. 415b (a)(5).) (I do not intend to wade into the difference between covert and clandestine action here. In spite of what Bobby Chesney suggests in his above-linked post — this seems to fall within covert action as discussed in this Congressional Research Service report because a targeted killing would only be indirectly related to the agency’s other statutory intelligence functions), Additionally, the President may authorize other agencies to support covert action. When he does,

“Each finding shall specify each department, agency, or entity of the United States Government authorized to fund or otherwise participate in any significant way in such action. Any employee, contractor, or contract agent of a department, agency, or entity of the United States Government other than the Central Intelligence Agency directed to participate in any way in a covert action shall be subject either to the policies and regulations of the Central Intelligence Agency, ….” 50 U.S.C. 413b (a)(3)(emphasis added).

While Congress certainly has implemented some IHL in statutes of the U.S., such as the War Crimes Act, it has certainly not incorporated all of it. Thus, the extent to which covert operations must comport with IHL, including those in which the armed forces have been incorporated, is not clear to me. Further, the extent to which the President’s lawyers might boot-strap from relevant authorities to avoid both international and domestic law is potentially concerning. While in my view the President as Commander-in-Chief of the armed forces must usually comply with relevant domestic and international law, the President as Chief Executive acting pursuant to congressional authority need not do so. As Louis Henkin famously said, our elected branches have the constitutional power, but not the international right, to violate international law. I hope to carefully unpack these issues in the future, and welcome the considered thoughts of others on these topics.