Why the CIA and Drones?

by Kenneth Anderson

A quick follow-up to Chris’ post below – this started as a comment, but got too long, so I’m putting here as a general comment.  The question is one that many of us have asked from the outside, why the CIA in the conduct of drone operations?  And the implied broader questions, is it legal and anyway why is it a good policy idea, even if it is legal, for the CIA to be engaged directly in use of force operations?  The comment that follows is not attempting to defend a position; I’m just repeating in summary form what I’ve been told over the last few years by people here in Washington when I’ve asked these questions.  Take them for what they are worth; I’m not an insider to government and have no access to anything secret of any kind.  (Also, I would love to know Bobby Chesney’s answers to the same questions, as an side inquiry to his project examining the legal issues in the merger of Title 10 and Title 50 operations – even just an informal comment on this would be useful.)  It goes on for a while, so I’ll put it below the fold.

(1) The USG does not see a legal problem with either participation by the CIA in the use of force under international or domestic law; either in an armed conflict as civilians taking direct participation or, under some circumstances not apparently at issue today, self-defense operations outside of technical armed conflict, or together in coordinated operations with the uniformed military.  I think this point is not sufficiently emphasized – the USG, at least, does not start from any presumption that it is unlawful or even particularly unusual that a civilian agency would be tasked to use force in various circumstances.  I have long been struck, on the other hand, that among JAG officers or former JAG, there is sometimes a deep suspicion of that legal proposition, and a general sense that there is something dubious about that as an international law proposition.  But whatever that observation is worth, for the defense and intel communities at the senior legal-policy-structure levels, CIA participation in operations is a baseline, not a legal reach.

(2) Whatever issues of accountability might have existed after 9/11 in drone-targeted killing operations, the USG does not see that as a problem now and not for many years at least (somewhere on OJ is a discussion of Michael Lewis’ very interesting question to a former CIA senior official at the UT symposium last year). Koh was entirely serious when he talked in 2010 about legal reviews inside, and particularly as Title 10 and Title 50 operations, personnel, and so on converge, so too legal reviews and standards.  But the USG does not see as it owes accountability for legal standards in these operations outside of domestically required legal review and oversight through Title 50. I also believe it sees many more intelligence risks than those of us on the outside do, in revealing what appear to be merely “legal” standards but which turn out, from the USG’s point of view, to have operational implications.  Certainly it does not see that it owes accountability to NGOs or the UN; and its stance is that the role of judicial review over extraterritorial targeting decisions is highly limited, at most, even when US citizens are involved.  The accountability as such is between the political branches.  Many people, including me, have urged the USG to greater transparency as to legal review and standards, not as some supposed legal obligation, but as an important tool for political accountability and legitimacy.

(3) The CIA has been given an important diplomatic and political task in conducting operations in Pakistan that, up until recently and perhaps even still today, benefit from even the fig leaf of deniability.  From where I sit, this looks dubious; and I have suggested that we need reforms to our accountability and oversight regimes to encompass more than simply covert-not covert.  But people I’ve talked with tell me that even today there are political benefits to being able to say, “neither confirm nor deny,” vis a vis the Pakistan government.  I’m not in any of those inside conversations, with Pakistan or Yemen or elsewhere, but it seems to me these are calls government officials have to make.  The final point is, however, that the CIA is conducting these operations under the President’s direct order; someone has given serious thought to the diplomatic and other costs and benefits of the CIA versus the military conducting cross border raids.

(4) News reports, as Bobby Chesney has noted several times, make reference to different internal government legal authorities governing activities of the CIA and the uniformed military.  These refer to executive branch legal determinations that apparently set out quite different conditions for the CIA to act cross border and the military.  These are not “law” in the statutory sense, but neither are they instantly revisable policies, either; they seem to be “structural” internal legal regulation that can be changed but are ‘embedded’ in ways that change has to be considered carefully.  So far as one can tell from news accounts, they go to gradually changing the internal regulatory system for Title 10 and Title 50 operations, and as things currently stand, there is much more flexibility for the CIA to act across borders than there is for the military.

(5) It is important to distinguish the drone operations conducted by the CIA that are part of counterinsurgency to attack cross border safe haven camps and Taliban troop concentrations, and genuinely targeted killing as part of counterterrorism.  The CIA does both; at an earlier stage, some people remarked to me that the CIA wasn’t interested in the broader CI role because it wasn’t interested in doing Air America again and thought it should concentrate on CT targeted killing.  It undertook the larger scale raids because of the diplomatic and political reasons above and on account of direct political decisions of the president, not because it was especially interested in being the air arm over Pakistan in support of CI operations.  However, conditions appear to have changed in the past couple of years, viz., the success of the drone operations in both programs has come to depend crucially upon ground level human intelligence gathered and assessed by the CIA, and this leads to a crucial operational role.

It might be the SEAL team carrying out the operation on the ground, but with the CIA “running” the operation because it has the intelligence network.  But in the case of drone strikes, it might well be that the ground level intelligence leads to drone surveillance that presents a target of opportunity for an armed drone.  In principle, one could stick a uniformed operator into the drone chair, but of course if one were serious about legal accountability requiring a military operator, that would have to run through the military chain of command and review.  But the USG does not see that as legally required and takes that view with genuinely no sense of embarrassment, so to speak.  Much of this might gradually merge as Title 10 and Title 50 operations merge, but the sense of the baseline, which to many legal academics is one place but to the intel community quite another, matters a lot.  Neither Panetta nor, so far as anyone outside knows, Petraeus, has the slightest qualm about the adequacy in law and legal policy of the form of review of drone strikes by the CIA.  Maybe the academics, advocates, and activists are right, and they are wrong, but it would be a major mistake not to understand the government’s baseline legal position.

(6) So the CIA is tasked with operations in part because it has experience, capabilities, and is closest to the intelligence that ultimately drives the operations.  That matters to the USG, I would guess, a lot more than a formal and abstract legal argument that only uniformed military and not CIA should conduct these operations.  Take that for what it’s worth, but that’s my guess.

(7) But there’s a further reason for the CIA in operational roles.  Woodward in his book Obama’s War made passing reference to the CIA creating, or at least funding and working with, certain militias in Afghanistan.  The book suggested numbers of proxy fighters that were, at that time, much higher than I would have guessed.  These militias seem to be integrated with the intelligence operations which feed the drone and human team strikes, but also act as a ground proxy force as US military forces leave.

As the US draws down its uniformed forces in Afghanistan, in other words, it might turn out that the CIA is the primary force left behind – the French Foreign Legion of this conflict, as it were, always the last out, if it leaves at all.  It remains behind to ensure that whatever bad things might happen if the remnants of American counterinsurgency and nation building are swept away, transnational terrorists do not re-acquire Afghanistan as a safe haven.  And further to maintain the ground level intelligence network built up with great difficulty over the last few years and provide a staging ground for CT targeted killing raids into Pakistan that otherwise do not have an easy launching pad. Something like the same kind of ground-level intelligence networks might be contemplated for Yemen, though it would presumably be a very difficult task.  In any case, the right way to think about drones is not as drones, but instead as the deployment of intelligence-driven uses of force, whether human teams or drones, in which the drone is the last kinetic action of a long chain of mostly intelligence activities, including signals, human intelligence, and analysis.  Intelligence drives the drones strikes.

(8) Take that for whatever it is worth, and it might be a sci-fi novel, for all I know.  But one point still comes out of this picture.  There are important, potentially crucial, strategic reasons why the CIA, as the developer and operator of the “dense” intelligence networks and the last important American force remaining behind in Afghanistan through intelligence networks and proxy forces, if anything will have a greater, not lesser, importance in direct operations in counterterrorism.  There are strategic reasons for it that are not readily apparent to us as lawyers, and given a legal baseline for the US government that thinks CIA participation in operations does not begin from some presumption of near-illegality, my guess is that the government sees the CIA as fully a partner in operations.

http://opiniojuris.org/2011/10/20/why-the-cia-and-drones/

12 Responses

  1. Response…
    Several have written on the problem of CIA types not having “combatant” status and “combatant immunity” for lawful acts of war and that they might be prosecutable under relevant domestic law for “murder,” etc. — including Mary Ellen O’Connell, me (http://ssrn.com/abstract=1520717), John Radsan, etc. — see 37 Wm. Mitchell L. Rev. 5001 (2011), special issue on National Security Forum

  2. Response…
    p.s.  my article offers a concept of implied immunity for civilians engaged in lawful measures of self-defense in the theare of a real war (e.g., the Afghan war, not a supposed “war” with al Qaeda), in time of peace, or outside the theatre of a real war (say, in Yemen).
    But see Morris Davis op ed in JURIST

  3. Because the comment I posted to Chris’ drone entry previously is even more pertinent here given Ken’s reference to accountability, I am repeating it verbatim here:

    The CIA operators have been trained by military JAG’s in the laws of war according to Henry Crumpton who was in charge of the drone program in Afghanistan from its inception (see Wm. Mitchell cite of Jordan’s at 5031, fn. 33).  The question is whether they are subject to discipline if they violate those laws.  Crumpton did not explicitly state that this was the case, but I believe it was strongly implied.  If it is NOT the case, then this presents a legal problem not present if they ARE subject to discipline for LOAC violations. 

    However, because the program still does not officially exist, it will be impossible to determine what sort of disciplinary measures (it would not have to be the UCMJ specifically) they are subject to and whether these are sufficient to allow the operators to qualify for combatant status by meeting the “shall be subject to an internal disciplinary system which, ‘ inter alia ‘, shall enforce compliance with the rules of international law applicable in armed conflict.” requirements of API 43(1).

    Interestingly the continuing refusal to recognize the program could jeopardize that status because under API 43(3) there is a notification requirement if “armed law enforcement agenc[ies]” are incorporated into the armed forces of a party to the conflict.

  4. CIA paramilitary operatives do not meet the criteria for combatant immunity and prisoner of war status under the international laws of war.  That is a given.  It is also irrelevant to the legality of their involvement in covert use-of-force operations under U.S. domestic law.  This is why Ken has discovered that it doesn’t seem to matter to anyone except JAGs.

    As I noted in my post on the Bin Laden raid, the statutory authorities for covert CIA operations only require compliance with federal statutes.  They do not require compliance with international law, including the laws of war.  Even if there were a comprehensive CIA disciplinary system for law of war violations (and there is not — even though the federal statutes with which they must comply include the War Crimes Act), that would not change other defects in CIA covert operative participation in hostilities (recognizable insignia, carrying arms openly, etc.) that inhibit their eligibility for combatant immunity.  Indeed, because they are not a part of the armed forces of the U.S., a volunterr corps or militia, or a law enforcement agency or civil defense force, they would meet combatant immunity criteria under the third Geneva Convention, or even the API provision Michael cites above.

    I, like Michael, have read in (unclassified) places that the CIA is being trained in the laws of war by JAGs.  This may help to ensure that their means and methods in use-of-force operations comply with the laws of war, but it does not change their “battlefield status” under the laws of war.  In other words, the particulars of their acts of hostilities may comply with the laws of war, but CIA operatives are not entitled to combatant immunity, or protection from punishment, for their acts of violence under the domestic law of the foreign state in which those acts of violence occur (similar to the Military Commissions Act’s “murder in violation of the law of war” offense).

    Jordan essentially makes a “functional immunity” argument.  He is effectively arguing that government agents participating in self-defense operations below the armed conflict threshold have functional immunity as government agents and do not need to meet combatant immunity requirements.  Because it is not an armed conflict, the argument would go, combatant immunity is unavailable but functional (a.k.a. ratione materiae) immunity of foreign government organs or agents does.  It is a good argument, assuming that their are interstate or transnational defensive uses of force that do not create armed conflicts and may be executed even without the target posing an imminent (as opposed to future) threat to a U.S. citizen.

  5. I’ll believe it when the alleged drone victims will be able to sue U.S. in an international court, like Al-Skeini did with U.K. Let the judges have the last word whether IHL, IHR or other law applies, whether or not U.S. violated it, and whether U.S. should do differently in the future, and eventually do some reparations. But U.S. has not even ratified the American Convention on Human Rights, and rejected the serious Australian proposal for an International Court of Human Rights.

    Until the ‘victims’ can sue U.S. in international courts, the whole discussion about legality reminds me of the discussions I had to watch on TV when our dictator Ceasescu claimed that something was the law. Most of the other Nomenklatura cheered at the geniality of the tyrant, some other agreed for 95% and they arranged some very little minority guys to disagree, to give us the impression of a democratic deliberation, where legality, accountability, rationality and morality would triumph.

    In the same way U.S. puts up a show of deliberation and accountability, that does not mean anything and convinces nobody outside the circle of states that profit from this war. For the simple fact that U.S. gets always the last word and gets always away with anything.
     
    You should address this problem one time and until you produced a convincing argument, the ‘victim’ world will keep watching with amazement at the internal U.S. discussion about the war on terror, like it was watching a discussion about how many angels can dance on the head of a pin.

  6. And what I said before is not just my opinion. At the same conclusion arrived the “Defense Science Board Task Force on Strategic Communication” when they got the task to research the question “Why do they hate us”:

    “Muslims see Americans as strangely narcissistic – namely, that the war is all about us. As the Muslims see it, everything about the war is – for Americans – really no more than an extension of American domestic politics and its great game. This perception is of course necessarily heightened by election-year atmospherics, but nonetheless sustains their impression that when Americans talk to Muslims they are really just talking to themselves.”
    http://www.acq.osd.mil/dsb/reports/ADA428770.pdf

  7. Correction:

    “Indeed, because they are not a part of the armed forces of the U.S., a volunte[e]r corps or militia, or a law enforcement agency or civil defense force, they would [NEVER] meet combatant immunity criteria under the third Geneva Convention, or even the API provision Michael cites above.”

  8. Taking up Ken’s invitation, I wrote up a reply commenting on the many important issues Ken raises.  Too much to put into a comment, so I’ve posted it on Lawfare here

  9. Thanks to everyone for the very interesting and useful responses – I will try to comment further, but I am at Rice U for parents’ weekend …!  And I must admit that it is a beautiful day here in Houston!

  10. Response.. Can CIA argue that drone attack does not constitute “hostilities” as Mr. Obama bypassed Congressional authorization for American military participation in Libya under War Powers Resolution?

  11. I tend to believe that the decision to “outsource” drone target killings to the CIA does not so much follow an operational/strategic (Kenneth) or diplomatic (Robert C.) rationale, but rather a legal one.
    It might be namely the (undisputed) absence of any legal accountability framework for those covert drone strikes, that makes it so convenient for the administration to task the CIA with it:
    It seems to be common opinion in this blog that those target killings don’t fall within IHL, do not violate US domestic laws and – since the US has not ratified the rome statute – are not at risk to fall under review of ICC. Of course, they might violate Ruritania’s criminal laws, but that is (not only from the US perspective) practically irrelevant.

    Could it be argued that, if those killings would be conducted by US military personal with the same low threshold standards that seem to govern the CIA’s target selection, they might probably be illegal not only as war crimes under under international law but also under domestic law?
    E.g. the Afghanistan “Tall man” incident (a civilian was “droned” on the mere grounds of physical ressemblance to OBL) surely violates US army ROE use of force threshold.

    Just my two (euro) cents…

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