CIA’s Approach to Drones?

by Deborah Pearlstein

If this is an accurate report, it doesn’t inspire confidence. According to Gordon Lubold and Shane Harris at Foreign Policy, the “migration” of targeting operations from the CIA to the Pentagon “migration of those operations has stalled, and it is now unlikely to happen anytime soon.” Such anonymously sourced reports always need to be taken with a grain of salt, especially so in circumstances like these, where turf battles between agencies are involved. Indeed, in this article, two different current U.S. officials are quoted as insisting that the goal of transferring operations remains the same, and movement continues in that direction. And it suggests that the slow progression is in part due to ongoing operations in Pakistan, conditioned on Pakistani consent requiring that U.S. involvement remain covert.

All the same, this paragraph seemed especially troubling:

[T]he pitfalls of transferring operations reside in more practical concerns. The U.S. official said that while the platforms and the capabilities are common to either the Agency or the Pentagon, there remain distinctly different approaches to “finding, fixing and finishing” terrorist targets. The two organizations also use different approaches to producing the “intelligence feeds” upon which drone operations rely. Perhaps more importantly, after years of conducting drone strikes, the CIA has developed an expertise and a taste for them. The DOD’s appetite to take over that mission may not run very deep…. “The agency can do it much more efficiently and at lower cost than the military can,” said one former intelligence official. Another former official with extensive experience in intelligence and military operations said it takes the military longer to deploy drones — in part because the military uses a larger support staff to operate the aircraft.

Part of the reason why many of us have argued that whatever targeting operations we pursue should be transferred from the CIA to the military is because of our greater certainty that the military views itself as bound by IHL rules of targeting; has a deeper culture of training in and compliance with those rules; and has the professional and institutional infrastructure to support their maintenance. It is thus just such suggestions of different processes surrounding targeting that are most concerning. Do the differences alluded to here in “fixing” targets refer to the degree of certainty a targeter must possess that a target is a factually and legally appropriate, that pre-targeting collateral damage estimates are accurate? Is the greater “efficiency” with which CIA can operate a function of fewer layers of review, less participation by trained counsel and other advisers surrounding the operations, no obligation or habit of after action bomb damage assessments testing who we actually killed – all of which feature at least to some extent in military operations? (I summarize military procedures – at least as described by U.S. military doctrine – as part of my recent piece on process in targeting here.)

For all the work the administration, and the President in particular, has tried to do reassuring the public of the legality of its program – and all the work it has yet to do – this article doesn’t help.

http://opiniojuris.org/2013/11/06/cias-approach-drones/

3 Responses

  1. Exactly, and JAG officers are also more likely to be better equipped to make proper choices and provide proper legal advice with respect to the law of self-defense — the other paradigm used over the years by the Executive as an alternative legal basis for targetings and captures.
    Additionally, if CIA persons are doing the targeting, they would not have “combatant immunity” as “combatants” under the laws of war unless a particular CIA person happens to alse be a member of the regular armed forces of the United States (although practice and opinio juris seems to support a similar immunity under the law of self-defense) — a point that Mary Ellen and I have made in the past (http://ssrn.com/abstract=1520717 )
     

  2. All valid concerns, Deborah.  I reacted similarly to the story.  I think this delay is about much more than a “turf battle” between agencies, as indicated by the paragraph quoted above.  
     
    It is worth noting, as well, the administration’s recently announced policy that it will capture rather than kill a terrorist if “feasible at the time of the operation.”  The military certainly has greater innate capacity to raid and capture, making it more “feasible” to do so (which is also less “efficient” in terms of resources) if they are the lead agency. Differences over “finding, fixing and finishing” terrorist targets may extend to assessments and practicalities regarding the feasibility of capture, as well as target identification and pre-strike assessments regarding proportionate collateral damage.
     
    Also, I suspect that some of the resistance to the transfer comes from concerns about how transparent these operations might become if lead by the military.  In other words, an increase in transparency does not mean there will be an absence of opacity.  The ability to regulate transparency/opacity is probably much greater with the CIA in the lead.  The military tends to be “leakier” in part because it is staffed differently and there are more potential holes through which classified information might pass.   

  3. See this article for an explanation of ‘Find, Fix, Finish’ (http://smallwarsjournal.com/jrnl/art/f3ead-opsintel-fusion-%E2%80%9Cfeeds%E2%80%9D-the-sof-targeting-process). As I read it, fixing is more about the degree of certainty about the objective/factual nature of the target and its geographical location and less about the relevant legal (and ROE) tests that must be applied before using kinetic force.

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