The CIA and the Public Authority Justification: A Response to Orr

Jamie Orr has responded to my previous post on the drone memo, in which I argue that the OLC fails to adequately defend its conclusion that the CIA is just as entitled to the public-authority justification (PAJ) as the DoD. It’s a thoughtful response, and I appreciate Dean Orr taking the time to write it. But I don’t find his arguments convincing.

Orr begins by citing Art. 43 of the First Additional Protocol (AP I), which defines the armed forces as “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates.” In Orr’s view, that means the CIA qualifies as “armed forces” under Art. 43, because the CIA is responsible to President Obama, the Commander in Chief:

The CIA may not be a part of the US military, not subordinate to the Secretary of Defense, but it is hard to claim it is not in any way an armed “group” or “unit” which is under the Command of the responsible party – the same person with responsibility for the military services, namely the Commander in Chief.

Orr’s argument, however, proves too much. By his logic, every armed organisation in the federal government that is ultimately responsible to Obama would qualify as the “armed forces” of the US and be entitled to participate in hostilities — the FBI, the DEA, the ATF, even the US Marshals Service. That can’t possibly be correct.

To be fair, Orr recognises that it is not evident a “paramilitary” group like the CIA qualifies as the armed forces of the US and thus has the right to participate in hostilities. In particular, he acknowledges that, at a minimum, the CIA would have to comply with the four criteria set out in Art. 4 of the Third Geneva Convention (GC III): (1) responsible command; (2) a fixed distinctive sign; (3) open carry of arms; and (4) compliance with IHL. Here is his argument that it does:

(a) and (c) seem to apply (remotely piloted aircraft are operated in the open). The claim is made that (d) applies. Does (b)? Hard to say, but it’s also hard to understand how this criteria has modern relevance with stand-off weapons of any sort.

I don’t think it’s hard to say at all that (b) is not satisfied. CIA agents does not wear uniforms, nor do they wear anything that identifies them as CIA — particularly at a distance. And why would they? The CIA is an intelligence organisation that operates almost exclusively in secret; as noted by its own website, the CIA’s mission is “conducting effective covert action as directed by the President.” Fixed distinctive signs are the last thing CIA agents would ever wear.

Indeed, that’s almost certainly why Orr downplays the role of a fixed distinctive sign, saying that its “hard to understand how this criteria has modern relevance with stand-off weapons of any sort.” But that comment gives away the ballgame. Orr is not really arguing that the CIA is entitled to participate in hostilities because its members comply with the four criteria in GC III, art. 4. On the contrary, he is arguing that the CIA only has to comply with three of the four criteria — conveniently, the three with which it can comply. The inconvenient fourth criteria is simply wished out of existence. (And note that the question is not whether the CIA’s weapons have a fixed distinctive sign; it’s whether the CIA’s agents have one. Which they don’t.)

It is important to recognize, though, that Orr’s argument concerning Art. 43 of AP I and Art. 4 of the GC III is ultimately beside the point. Orr may think that, as a matter of international law, the CIA is part of the US’s armed forces and thus has the right to participate in hostilities. But the US government doesn’t. Footnote 44 in the drone memo makes that exquisitely clear (emphasis added):

It is true that CIA personnel, by virtue of their not being part of the armed forces, would not enjoy the immunity from prosecution under the domestic law of the countries in which they act for their conduct in targeting and killing enemy forces in compliance with the laws of war — an immunity that the armed forces enjoy by virtue of their status.

The question, then, is the one I addressed in my post: whether US domestic law gives the CIA authority to participate in hostilities. That’s all that matters, according to the drone memo, for purposes of the public-authority justification.

In that vein, Orr also takes on my argument that the AUMF does not provide the CIA with the necessary authority. To begin with, he quotes the relevant provision in the US Code:

US Code, in Section 101 of Title 10 states that “(4) The term “armed forces” means the Army, Navy, Air Force, Marine Corps, and Coast Guard.” But, is that an exclusive definition of the term?

It certainly seems to be! Nothing in the language of sec. 101 suggests that the definition is non-exclusive. After all, the provision uses a restrictive term, “means,” not a non-restrictive term such as “includes.” Black-letter principles of statutory interpretation thus indicate that only the five services qualify as US “armed forces.”

Orr then offers what I find his most problematic argument, concerning the interpretation of the AUMF:

There is a fairly significant proviso, however. While the title of the AUMF says “military force” the actual text of the law does not:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Here the use of force is NOT limited to military force. Instead, the expressly granted authority is to use “all necessary and appropriate force.” It appears that the Administration is taking the position that when the authority to use “all” necessary and appropriate force is given to the president, he can then turn to all tools available to him as Commander in Chief. And this includes the CIA’s covert capabilities.

This is simply inaccurate. It is not just that the title of the AUMF says “military force.” More importantly, the language Orr quotes is located in a section of the AUMF entitled “Authorization for use of United States Armed Forces.” Here is the relevant part of the section in full, including the title that Orr conveniently omits (emphasis added):

SECTION 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL. — That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

I know of no theory of statutory interpretation, nor any canon of construction, that would allow us to conclude that Section 2 authorizes organisations that are not “United States Armed Forces” to exercise the “necessary and appropriate force” mentioned in paragraph (a). Unless the CIA qualifies as one of the US’s armed forces, it is not authorized to use force by the AUMF. And as noted above, the drone memo specifically acknowledges that the CIA is not one of the US’s armed forces.

Finally, I would take issue with Orr’s last substantive claim:

[T]he Executive Branch has asserted that the AUMF does, in fact, provide the CIA this legal authority, and by extension the legal authority of the President to rely on the CIA as an instrument of implementing the AUMF, which in turn provides the umbrella coverage of the combatant’s privilege. This, of course, is the analysis provided in the DOJ White Paper (with which Heller obviously disagrees).

It’s not just Heller that disagrees with the idea that the CIA possesses the combatant’s privilege — again, so the drone memo does. More importantly, though, the White Paper does not claim either that the AUMF applies to the CIA or that the CIA possesses the combatant’s privilege. Not only do all of the citations in the White Paper regarding the public-authority justification (pp. 14-15) concern the use of force by the military, the word “CIA” does not even appear in the White Paper. It’s difficult to see, then, how the White Paper could stand for the proposition that the AUMF applies to the CIA.