Getting the CIA Out of the Drone Business

From Dan Klaidman of the publication formerly known as Newsweek, here’s what I’d call good news: “Three senior U.S. officials tell The Daily Beast that the White House is poised to sign off on a plan to shift the CIA’s lethal targeting program to the Defense Department.”

There’ve been hints in the press before that new CIA Director John Brennan in particular favored this approach, but this makes it sound as though it may soon become a reality. Why do I think it’s good news, at least on the relative scale of U.S. targeting operations? A combination of reasons, both legal and organizational, which tend to persuade me that Defense Department (DOD) targeting authority is better constrained than CIA.

On the law, at least as I took it from the speech given last year by CIA General Counsel Stephen Preston, CIA doesn’t think its domestic law targeting authority is necessarily limited to those organizations/persons against whom Congress authorized the use of force post-9/11 in the Authorization for Use of Military Force (AUMF). CIA’s domestic authority to conduct covert actions is provided for by Title 50 of the federal code, a different set of federal statutes; as long as CIA has a presidential “finding” as required by the statute, it could, at least in principle, conduct targeting operations against anyone. More, while DOD thinks it actually has to comply with international rules governing the use of force (jus ad bellum and jus in bello) when it acts in this context, CIA doesn’t seem to think it does – at least not as a matter of law.

The difference in the agencies’ legal understandings has corresponding consequences for the institutional cultures from which the strikes emanate. IHL rules have for years been implemented through U.S. military regulations – effectively requiring the military to develop doctrine, training and discipline systems to make sure that targeting operations are conducted lawfully. (The U.S. military’s targeting doctrine, including baseline practices for how targets are chosen and checked, is available in a joint forces publication online.) Members of the military who violate orders within this system may be punished according to, among other things, the rules set forth by statute in the Uniform Code of Military Justice. Civilians (at least in Afghanistan) who wrongfully suffer damage from attacks (including the families of those killed) can seek amends through various U.S. compensation programs available there.

How does all this play out on the CIA side? The CIA reportedly has its own “kill lists,” developed based on its own criteria, but those criteria are publicly unknown. How CIA targeting personnel are trained to comply with what rules there are, what measures of discipline they may be subject to if they do not, what kinds of compensation may ever be made available to those who wrongfully suffer a misdirected attack – who knows? By a number of accounts – Richard Clarke’s and others – CIA came to be in the drone business substantially because the military, and especially the Air Force, didn’t want the mission in the 1990’s when the idea of putting a missile on surveillance drones in the interest of counterterrorism first came into vogue. Times have since changed. CIA is no longer the only option. There is thus little chance the U.S. will lose any capacity to carry out these operations. But there is some chance it might be more constrained by law in doing them.

All that said, the organizational shift, if it happens, won’t solve everything. While one might expect that DOD has better, more clearly settled process constraints on the front end, some suggest that congressional oversight of clandestine JSOC (the military’s Joint Special Operations Command) operations may be weaker than comparable oversight of CIA covert operations on the back end. If that’s the case, Congress should move to enhance the oversight role of the armed services committees to at least match the role played by the intelligence committees in keeping abreast of the activities of the CIA. But even on the intelligence side, back-end congressional oversight is fraught with limitations – involving sometimes only a handful of congressional leaders, sometimes with highly restricted expert staff engagement, and in all events, shrouded in secrecy. Congressional oversight is inadequate to constrain power in this area for the same reason that executive-branch-only constraints often fall short – political accountability is scarcely possible when policy is pursued in secret. Whether in CIA’s hands, or DOD’s, the problem of secrecy is the biggest hurdle to ensuring U.S. targeting operations are conducted legally. Until there is more transparency with the general public – transparency about who can be targeted, when, and under what legal authority – no institutional fix will work.