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

by John C. Dehn

[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.

http://opiniojuris.org/2011/05/04/was-the-cia-director-in-charge-of-the-bin-laden-operation-apparently-so-does-it-matter/

16 Responses

  1. John:  I posted a question about your first topic — does IHL apply to actions of self-defense short of armed conflict — in Kevin’s post, but the comments section there appears temporarily to be down.  No matter for present purposes, since this is, in the U.S. view, an armed conflict as well as an action in self-defense to protect against future attacks.

    Three other reactions to your post:

    First, I think you’re too quick to assume that, if this was a joint operation monitored by CIA and originally proposed by CIA to DOD, that it is “fairly clear that this was a CIA operation for which the U.S. military served as the tip of the spear.”  In particular, it’s not obvious to me that DOD forces were not acting subject to their ordinary chain of command, even with some CIA involvement — with the attendant command responsibility so important for IHL purposes.  (A more interesting question, perhaps, is whether any CIA personnel were subject to that same military command in such a joint endeavor.)

    Second, I don’t see how this could have been a covert action, or “only” a covert action.  It was probably a “traditional military activity” and, more to the point, it was not “intended that the role of the United States Government will not be
    apparent or acknowledged publicly,” which is the basic requirement for a CA.

    Third, although title 50 by its terms does not require the CIA to abide by IL in a covert action, DOD has always been firmly of the view that all of its operations, in armed conflicts and without, must comply with IHL, and I am aware of no indications that they felt free here to deviate from IHL — to the contrary, there are many indicia that they were scrupulous in attempting to adhere to it (e.g., the emphasis on proportionality; the willingness to provide quarter; the Muslim burial; etc.).

  2. Prof Dehn,

    As I just posted on the Quick Thoughts on UBL’s Killing — and a Response to Lewis, I should have an article coming out mid-year on the role of IHL/LOAC to article 51 actions that do not rise to being an armed conflict. At least I now know that it should be subject to a well-informed critique!

    As to CIA ‘control’ of the operation, I see no difficulty with a military responding to civilian direction. As long as a military commander ‘commands and controls’ the execution of the mission, then the soldiers/sailors/airmen/marines should still be ‘combatants’. I am of the view that only a military commander can determine whether an object is a military objective, but certainly a civilian can either not approve an attack or prioritise an attack on an object. Equally, in the course of an attack, a civilian could give direction on whether to pursue course of action A or B, follow branch C etc. All of that seems consistent with IHL/LOAC. I am not qualified to and offer no view on US domestic law.

  3. Thanks very much Marty.  These are great thoughts.  I meant to make no assertions about whether this operation complied with IHL in its particulars.  I think it did.  I wanted to raise the issue of the CIA-DoD relationship and its potential implications.  Bootstrapping authorities, in particular, might have been at issue in some Yoo-era OLC memos.

    It certainly may be possible that the mission was passed off to DoD in its entirety.   I obviously don’t have any of the relevant government legal analysis or background.  It certainly isn’t clear from the available reports, and as I said, CIA control only “seems” clear from those reports.  The National Journal article adds much to that perception.

    I fully agree that one key element of CA doesn’t seem to be met here, but, its authority would seem to me the only way to explain CIA involvement in this type of operation if there was any.  I also wonder if U.S. involvement would have been acknowledged if things had not gone well or OBL was not in the compund…and where that would leave us regarding whether CA authority was used — at least initially. 

    Further, I am fully aware of general DoD policy on law of war compliance, but not of its applicability in the CA context.  I assume you are, and appreciate your insights.  Other reports regarding past special operations, including some possible interrogation techniques, have left me wondering.  It would obviously create many legal and leadership issues for the military to have soldiers in different units with different responsibilities for IHL compliance.

  4. John:  This statement from Panetta last night on TV sure clouds things:

    LEON PANETTA: Since this was what’s called a “title 50″ operation, which is a covert operation, and it comes directly from the president of the United States who made the decision to conduct this operation in a covert way, that direction goes to me. And then, I am, you know, the person who then commands the mission.  But having said that, I have to tell you that the real commander was Adm. McRaven because he was on site, and he was actually in charge of the military operation that went in and got bin Laden.
    I would simply note that we should not necessarily assume Panetta is correct that, even if this was a “title 50 operation” in some respects — e.g., involving the CIA, and perhaps even with a presidential finding (and no, I don’t have any inside information on such matters and, unlike Panetta, would not reveal such classified info if I did!) — that doesn’t necessarily mean that it was covert in the statutory sense, let alone that it would not be in compliance with IHL.
    By the way, my representations about DOD policy are based on their public manuals, not on any inside information — although I, like countless thousands of others, can attest that DOD takes great pride on insisting that all their operations conform to IHL.
     

  5. Fair points, all, Marty.  I tend to believe — fairly I think — that the CIA Director knew the legal analysis/authority   supporting the operation.  As I say, I suspect we would not have readily acknowledged anything if the op had been unsuccessful, that is, unless circumstances forced us to do so. 

    I also assume that the “classification” of information surrounding the op, including many if not all of its details, changed immediately after it was successful.  I assume the Director takes such issues as seriously as you (and I) do.  If we wanted the American public and the world to know about our success, declassification or selective reclassification was required and, most likely, quickly achieved.

    Again, without questioning the exact details of this how this operation was carried out on the ground, I think the issue of CIA control over various aspects of armed hostilities, and the domestic and international legal implications of DoD involvement in CIA controlled operations, are currently under-analyzed.  

  6. John:  It’s a minor point, but in light of the high dudgeon about leaks of classified information; the scrupulousness of the majority of us who treat very seriously our obligation not to reveal such information; and the seemingly constant revelation by high government officials, of every administration, of such classified information (the Woodward book and Rizzo discussion with Tara McKelvey being two of the most recent extraordinary examples), I think it’s important:

    If there was a presidential finding here authorizing covert action (and I don’t know if there was), I am virtually certain that it would have been highly classified and that it has not been declassified.   I could be wrong, but it would be a highly unusual declassification . . . .

  7. Again, a fair point Marty.  Of course, acknowledging the existence of a finding does not necessarily reveal its classified contents or aspects.  So, although I would defer to you here, I could see the existence of the finding being declassified or released but not some of its more important contents.  Classification of specific information is, after all, a purely executive function albeit  supported by Congress.

    For readers, I recently noticed that, over at Lawfare, Bobby Chesney has two new posts (from yesterday and today) on the topic of covert action related to the OBL (or UBL) operation.  He seems to think, if I read him correctly, that the “traditional military activities” exception (meaning that by statute, no covert action can include traditional military activities) prevents this operation from falling within the CA statutory framework.  I think several rational arguments can be made that there was very little traditional about this military operation other than its object, the killing of a fighter/combatant in a non-international armed conflict.

    He also briefly mentions the so-called “fifth function” as a possible source of covert action authority.  I tend to disagree with that reading of the statutory framework for a variety of reasons – not the least of which being that the statutory framework specifically defines and regulates covert action.  By implication, this would seem to negate the existence of such power in another section of the statutory framework. 

    Secondarily, so-called fifth function authority authorizes the CIA to “perform such other functions and duties related to intelligence affecting the national security as the President or the Director of National Intelligence may direct.”  50 U.S.C. 403-4a (d)(4).  The requirement for an intelligence nexus must be read, I think, in light of the intelligence functions earlier defined in that section.  That doesn’t get us to a targeted killing operation where intelligence collection is an ancillary (or non-existent) aspect of the mission.  It may get us to a “capture or kill” operation where intelligence gathering is an essential aspect of the operation — and that may be this operation.  Official statements about the OBL operation, repeated here and elsewhere, certainly clouds this issue tremendously.

    This all further emphasizes the point, though, that involving the military in non-traditional military activities where IHL compliance is not statutorily required requires a little more thought and analysis.  Even if it did not happen here, it could happen.  And a general DoD “policy” to follow the laws of war/IHL in all operations does not prevent a DoD (or Presidential) exception to that policy for specific missions.  Again, I have no specific information leading me to ponder these issues, but some general information of past special operations certainly raises these questions for me.

  8. Ian, quickly, I agree with you in principle and look forward to reading your article.  However, if customary international law requires, as a condition of the combatant’s privilege (and I recognize this is debated), that memebers of an armed force (1) fall under responsible command; (2) where an insignia recognizable at a distance; (3) carry their arms openly; & (4) conduct operation according to the laws of war, then I wonder if placing members of the armed forces under the control of a civilian agency with no domestic legal requirement to do any of these things (and indeed, who will conceal their identity to remain “covert”), and removing their (military members’) requirement to do these things, might alter their IHL status.  There are other potential consequences under our domestic law as well.

  9. Response…
    Of course, the President, as Commander in Chief, was the ultimate authority re: the operation.  Does he have “combatant” immunity under the laws of war?  CIA operatives who are not also members of the regular armed forces of the U.S. do not.  But the raid was conducted by members of the armed forces.
    My point about law of war principles of reasonable necessity, proportionality, distinction, and the prohibition of indiscrimnate targetings was that since there have been useful developments in connection with use of such in the law of war context, including DPH, it should be useful to apply such by analogy with respect to similar principles of reasonable necessity and proportionality that condition lawful self-defense targetins, including DPAA, when the laws of war are not applicable.
    With respect to the armed conflict in Afghanistan that has expanded, de facto, to parts of Pakistan (including apparently that part where bin Laden received and sent couriers — i.e., where he was killed), my point has been that it is an international armed conflict in several respects because of the internationalizing elements (e.g., U.S. use of armed force — and wherever the U.S. uses U.S. miltary to engage in combat roles the U.S. should recognize that the armed conflict is international in character or internationalized so that our armed forces can have “combatant” status and “combatant immunity” for lawful acts of war.  Outside the context of war, self-defense targetings that are proper under international law seem to involve a similar immunty (which I termed an implied immunity) — all in my main article and a shorter one that is forthcoming:
    http://ssrn.com/abstract=1520717

    http://ssrn.com/abstract=1707688

  10. John,

    At least for an IAC, I am in the school who believes members of the armed forces do need to comply with those 4 conditions (subject to where art. 44(3) API applies de jure, and noting the various reservations and declarations as to the ambit of that article). I argue this is some detail in my book on targeting, basically agreeing with the views put by like minded commentators.

    So, I completely agree with you. For example, if members of the armed forces went covert, and not just clandestine, then no combatant’s privilege. The point I want to be clear though is having a civilian direct the overall conduct of the mission (and even where that civilian did not meet the test for responsible command) would not, in my view, be inconsistent with those LOAC requirements as long as there was a military commander between the troops and the civilian. Of course, that assumes that the military commander retained ‘command’.

    If the SEALs were TACON (or perhaps even OPCON) to the CIA, then the issue is (under IL) probably just one of covert or clandestine.

    As for US domestic law, the whole reason most of us become IL lawyers is we prefer broad pontificating and quoting our friends/colleagues as authority — none of that nasty statutory interpretation and caselaw/precedent thank you!

    If nothing else, the International Law Department of the Naval War College sure have a good case study for this year’s conference on NIAC!

  11. Response…
    And Ian, that’s why we should continue to apply membership as the sole criterion for “combatant” status and pw status under GPW, art. 4(A)(1) [versus 4(A)(2)]

  12. Jordan,

    If I understand your post correctly, you are of the view that under LOAC as long as a person is a member of the armed forces (or incorporated militias and volunteer forces), then that person is entitled to combatant status and pw status regardless of complying with the ’4 conditions’.

    If I have summarised your view correctly, I disagree that that is the law. However, I acknowledge there are two competing schools of thought. Along with legal arguments that I set out elsewhere, at the simplest policy level it seems contrary to achieving compliance with the principle of distinction to afford combatant and pw status to a member of the armed forces who conducts hostilities out of uniform and with his or her arms concealed. If in the future I am in a nice, traditional IAC against (say) New Zealand, I would like to think that I will be able to visually identify (and thereby distinguish) civilians and members of the NZ Defence Forces.

  13. Despite the position of the Bush administration, the 45,000 light infantry soldiers of the Army of Afghanistan under the Taliban who were stretched out in a line facing off against a similar force belonging to the Northern Alliance on 9/10/01 should be entitled to combatant privilege. They were members of the regular armed forces of a signatory to the Geneva Convention. Although a non-uniformed army might pose a problem if it hid among civilians, when it masses in a military formation along the Panjshir Valley, there is no problem with distinction. The attempt by Yoo and Bellinger to require compliance with the “4 part rule” is unreasonable. Those soldiers came dressed properly for an Afghan civil war and had no time to change when suddenly it turned into an International Armed Conflict.

    The “4 part rule” has been characterized as a requirement for independently operating militia units, not for a regular army or for militia units incorporated into a main army force. Until someone actually tries to hide among civilians, the dress code is not part of a problem. The structure of the enemy chain of command seems irrelevant in all cases.

    Having said that, in the Bin Laden attack every member of our armed forces was in uniform and part of a military chain of command. Chain of command is different from whomakes the final go/nogo decision.  The CIA can make any decisions it wants, and the military can follow those decisions because they were ordered to do so by a military superior. Decisions are one thing, orders are entirely different.

    US forces frequently operate in joint operations that are nominally under the control of an alliance. In Munaf the Supreme Court noted that US soldiers operating within the authority of a multinational force remain part of the US chain of command and are therefore subject to US courts. Conversely, in Hirota the court found that although MacArthur was subject to a US chain of command, things done in his capacity as Supreme Commander of the allied occupation force were outside the jurisdiction of our individual national courts. So a distinction between “chain of command” and “authority to decide” has been clearly understood in previous wars and real court cases. It is just unusual for this sort of thing to occur between the military and the CIA instead of between Ike and Monty.

  14. I would offer that there are 3 reasons this went off as a covert operation with a finding rather than as a traditional military operation.  One is legal, 2 are political.

    The legal reason is this:  The covert action statute, requiring as it does a Presidential finding, is based, I argue, in separation of powers concerns.  In this case, the President unilaterally launched US forces into a foreign sovereign nation with which the US is not at war, apparently without that nation’s prior knowledge (though perhaps with implicit prior consent) to conduct operations that would and could be considered acts of war against that sovereign.  In requiring a Presidential finding, the covert action statute accommodates Congressional concerns with protection of its war declaring powers from Presidential intrusion by requiring him to document actions of this nature in advance, and to inform the Congress.  Such a finding would not have been required if this same mission had not been considered a covert action.  In the circumstances of this case, it seems to me to be politic, and as legal matter to accommodate the separation of powers involved, very likely necessary, to make the finding and inform Congress as required by the statute.  But note that no similar finding preceded the Libyan operation–which had different and distinguishable legal foundations.

    Second, as John Dehn points out, the need to maintain deniability in the case of mission failure counseled a decision to treat it as a covert action.

    Third, the CIA is a very powerful and effective bureaucratic in fighter, and they probably badly wanted, insisted upon, and probably deserved, mission command.

    As to what law applies once the mission launches:  That does not seem to me to be governed by whether it goes as a Title 50 or a Title 10 mission.  I would argue that US military forces should always be governed by IHL, regardless of the command and control relationship, but that non-uniformed CIA paramilitary forces operate outside of international law (except to the extent that it may also be binding US domestic law) and often in direct violation of foreign domestic law when so directed by competent US authorities.  Sometimes their job is to break other country’s laws and to get away with it ….

  15. But if all SEAL missions are to be viewed as IHL compliant and IHL is more lenient about how one goes about killing a legitimate target than law enforcement does, isn’t the result that the IHL compliant DoD action done in a not clearly IHL space puts the DoD actors in trouble.  I complied with IHL they might say, but the response would be, ‘that’s nice, but that was not good enough" by someone down the road who thought the armed conflict threshold had not been met.

    Welcome back Marty – ah if you could have done more for criminal prosection for the torture when you were at DOJ.

    Best,
    Ben

  16. …” the IHL compliant DoD action done in a not clearly IHL space puts the DoD actors in trouble.”

    I suggest that this view perhaps merges jus in bello with jus ad bellum accountability.

    I guess what you see depends upon where you sit…but this case — the killing of Osama bin Laden — appears to be in the context of an officially held US view that a state of armed conflict with Al Qaeda existed (and exists) and that bin Laden was a lawful military target in that armed conflict.  We have a Presidential finding, a State Dept legal view, the Congressional AUMF….

    Are you not seeking, in this circumstance, to hold a low level soldier accountable for a jus ad bellum decision?  Hard to argue, it seems to me, that on these facts, the soldier should see the order as unlawful and reject it…..

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