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

by Kevin Jon Heller

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.

http://opiniojuris.org/2014/06/25/cia-public-authority-justification-response-orr/

17 Responses

  1. Well, I’m glad to see a non-peon raised the same issue I had (viz., the text of the AUMF saying “all necessary and appropriate force”), so that you actually addressed it. Sadly, you seem to get the statutory interpretation question entirely bass-ackwards.

    You say: “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).”

    That gets the inquiry exactly backward. The question is whether there’s a theory of statutory interpretation that will allow us to read something into the plain text of the operative language because of something contained in a section title. You have to find some way around this, in particular:

    “The caption of a statute, this Court has cautioned, ‘cannot undo or limit that which the [statute’s] text makes plain.'” Intel Corp. v. Advanced Micro Devices, Inc., 542 US 241, 256 (2004) (quoting Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 529 (1947)).

    The AUMF’s text couldn’t be plainer: “all necessary and appropriate force.” How, then, can you read that to mean only United States Armed Forces, given that the section title “cannot undo or limit that which the text makes plain”?

  2. Wow, I really hope you’re not a CIA drone operator. I can see it now: “Hey, guys, look at this Presidential finding. Section 2 is entitled, ‘authorization to target members of AQ in Yemen’. But the paragraph says only ‘you are entitled to use any amount of force necessary against the target’. The target! It doesn’t say an AQ in Yemen target! We can kill anyone in the world!”

  3. Re: The question is whether there’s a theory of statutory interpretation that will allow us to read something into the plain text of the operative language because of something contained in a section title. You have to find some way around this, in particular:

    “The caption of a statute, this Court has cautioned, ‘cannot undo or limit that which the [statute’s] text makes plain.’

    The problem with that inapposite analogy is that the rules of interpretation employed by the Court require us to assume that the Congress hasn’t attempted to amend the militia clauses of the Constitution regarding its own responsibility for maintenance of discipline in the armed forces by adopting a conflicting statute. The Constitution and the laws and customs of war regarding military command and discipline prohibit attempts to employ civilian agents as part of the armed forces, without also subjecting them to regular military discipline, the UCMJ, and the Article 2 Military Courts. That’s part and parcel of the laws that govern privileged belligerents. See for example the 1907 Hague Convention (VII) requirement that the crews of converted merchant vessels must be subject to regular military discipline and the Hague IV requirements to conduct operations in accordance with the laws and customs of war; to have a fixed distinctive emblem recognizable at a distance; to carry arms openly; and to be commanded by a person responsible for his subordinates. The CIA doesn’t fulfil any of those stipulations.

  4. Re: Orr’s argument that “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.”

    Military “command and discipline” mean that dereliction of duty, insubordination, and failure to obey a lawful order, including the laws and customs of war, or the rules of engagement, are all punishable as criminal offences under the UCMJ. The members of the armed forces are required to take an oath “to obey the orders of the President of the United States and the orders of the officers appointed over them, according to regulations and the Uniform Code of Military Justice.” The Courts have even ruled that military service and disciple requires the suspension of certain individual civil rights.

    The role of the President and his relationship to the armed forces, as the Commander in Chief, is governed by the Constitution, and the laws and customs if war reflected in the UCMJ. The limits of his powers in that capacity have been carefully circumscribed, as spelled out by the Supreme Court in cases, like Little v. Barreme.

    None of that applies to the civil service employees of the CIA, who are not actually under the “command” of our Chief Executive in the customary legal sense that applies to a privileged belligerent subject to regular military discipline.

  5. KJH:

    First, a presidential finding isn’t a statute. I’d imagine one would go about interpreting such things differently than statutes, because their purposes are entirely different. (Here’s only one small difference between the two, e.g.: one is written by the Executive, with a specific purpose in mind, for specific reasons, all of which can be attributed to Executive Branch policy. Statutes are sausages, made by hundreds of members of Congress, for no doubt hundreds of different reasons. Even a relatively simple statute like the AUMF. There’s a single will guiding the issuance of a finding, and you can query that will for definitive guidance. There’s never a single will behind a congressional action.)

    Second, I hope you noticed that your only response to my argument from, you know, long-standing precedent was sarcasm. I’m only left to assume that you actually have no substantive response, then.

    Third, it strikes me as entirely plausible that Congress would choose to authorize “all” force, knowing that the CIA would be used in a paramilitary-type fashion, yet not want to say that publicly, and so they use broad, all-inclusive language that would sweep such CIA activity in.

  6. Hostage:

    I’m a little slow, but I don’t see your (or any, for that matter) point to your 6/27 @ 9:46 am EST. Interpreting the AUMF as I’ve argued is plausible doesn’t “require us to assume that the Congress hasn’t attempted to amend the militia clauses of the Constitution regarding its own responsibility for maintenance of discipline in the armed forces by adopting a conflicting staute.” The only thing I take away from your comment is that you appear to think the CIA is unconstitutional. In which case, good luck with that.

    Either that, or you completely missed my whole point. My whole point was that we have no reason to read the AUMF as authorizing only the use of the Armed Forces (i.e., the traditional military services that do conform to IHL’s requirements), given standard rules of statutory interpretation that forbid the cabining of operative statutory language by section titles (which carry no operative force). Maybe the president doesn’t actually need Congress to authorize the use of the CIA in a paramilitary capacity, but there are plenty of good, weighty political reasons why you would want a statute to have broad enough language to encompass such use (e.g., in case someone whines later on about it, you can waive the AUMF at them).

    Or maybe you’re saying use of the CIA in a paramilitary capacity violates IHL, insofar as they fail to conform to the Hague standards for regularly constituted armed forces. In which case, I’d say we knew that all along. I’m 100% certain the CIA knows their officers would not be accorded the same protections that members of the Army, Navy, Air Force, Marines or Coast Guard would, if captured.

  7. Erm. Waive. Wave.

    I admire the statutes of Phidias.

    Yeah.

  8. Kevin,

    You wrote “CIA agents [do] not wear uniforms, nor do they wear anything that identifies them as CIA”.

    I’m interested in your general view on LOAC and distinction. Do you think it is enough to wear a uniform that distinguishes the wearer from the civilian population, or does someone also have to indicate an affiliation to a particular organisation?

    thanks

  9. Anonsters,

    The Supreme Court case you cite is not relevant, because it was interpreting the title of a statute, not a section heading.

  10. Ian,

    I don’t think a sign that indicates affiliation with a particular organization is required. As long as the sign is fixed and distinctive and common to the group’s members, that’s all the principle of distinction requires — at least in my view. Of course, because all signs are arbitrary, of course the fixed and distinctive sign will eventually become assocaiated with a particular organisation. The Soviet star was once just a red star.

  11. Response : I’m a little slow, but I don’t see your (or any, for that matter) point to your 6/27 @ 9:46 am EST

    You’ll get no argument from me. Unless the Congress intended to make the CIA obey the laws and customs of war and subject them to regular military discipline under the terms of conventional and customary international law; and the UCMJ, then the AUMF certainly would be an unconstitutional statute. It would violate the militia clauses and the Hague Convention rules on military command and discipline. The CIA practice of conducting signature strikes violates the laws and customs of war and the foreign murder statutes.

  12. KJH:

    That’s a pretty silly response, given that Trainmen (which is what Intel v. AMD quotes) specifically says: “the title of a statute and the heading of a section cannot limit the plain meaning of the text” Railroad Trainmen v. B. & OR CO., 331 US 519, 528-9 (1947) (emphasis added). By which, of course, it means the heading of a section within a statute.

  13. Hostage:

    So you think the entire history of CIA covert action has been one long ultra vires exercise by the Executive branch, aided and abetted by Congress. You’re entitled to that view, of course, but good luck with that.

  14. Kevin Jon, Jamie Or, Hostage, and others opine in error when arguing that “combatant” status requires compliance with criteria set forth ONLY in GPW, art. 4(A)(2) [and not in 4(A)(1) or 4(A)(3)]. Under the laws of war (including the 1863 Lieber Code, HC No. IV, Annex, art. 1 (“not only to armies, but also to militia and volunteer corps fulfilling the following conditions….”), and GPW, art. 4(A)(1) and (3)), membership in the regular armed forces is the sole criterion for “combatant” status and privileges and pow status. see http://ssrn.com/abstract=2446681 . Members of U.S. armed forces that wear camouflage have combatant status and pow status and so would countless others who are members of the regular armed forces of a party to an international armed conflict. Members of the regular armed forces of the Taliban should have had combatant status and pow status as well. See, e.g., id.
    However, most CIA personnel will not be members of the regular armed forces of the United States. Additionally, see many prior posts, the U.S. cannot be at war with al Qaeda as such.
    Nontheless, self-defense targetings by U.S. military personnel or CIA personnel that are otherwise permissible would be privileged in view of general state practice and opinio juris about such practice. See, e.g., http://ssrn.com/abstract=1520717

  15. Response…From: Carmi Lecker [mailto:carmi [dot] lecker [at] gmail [dot] com]
    Sent: Thursday, July 03, 2014 10:24 AM
    Subject: New York City Bar Association Releases Report on Legality of Targeted Killings by U.S. Drones Under International Law/19.6.14

    City Bar Releases Report on Legality of Targeted Killings by U.S. Drones Under International Law
    Thursday, Jun 19, 2014 – 3:28pm
    Print
    Anticipating that targeted killings by drones may increase in the future, both by the United States and by other countries, the New York City Bar Association today released a report analyzing the legality of targeted killings by drones launched by the United States in the context of international law.
    While noting that there are serious constitutional, moral and policy issues associated with targeted killings using drones, some of which the City Bar has addressed elsewhere, today’s report—titled “The Legality Under International Law of Targeted Killings by Drones Launched by the United States”—deals strictly with the legality of drone strikes under current international law. The 181-page report characterizes the international legal issues as “complex,” and the analysis “complicated” because, among other reasons, “although the analysis of the legality of a drone strike is highly fact-specific, the facts surrounding the strikes are unclear.”
    Based on the facts in the public record, the report concludes that while the U.S. invasion of Afghanistan was a legitimate act of self-defense in response to the 9/11 attacks by al-Qaeda, those attacks no longer supply a legal basis for additional measures, such as drone strikes, against al-Qaeda or its alleged affiliates. Rather, under international law, “If the continued use of force is to be justified on the basis of self-defense, it must be justified by current armed attacks,” the report states.
    Under international law, the Report concludes, “the inherent right to self-defense is available against non-State actors, such as terrorist groups…if there is an actual or threatened ‘armed attack’ by the non-State actor.” In exercising the right of self-defense, the State may use force against a non-State actor, constrained by the principles of necessity and proportionality, within the territory of another State so long as force is directed against that actor and not another State, even in certain circumstances before an armed attack has occurred if the State has “no choice of means” to protect itself short of the use of force. The report observes, based on publicly-available information, that many States appear to have consented to U.S. drone strikes, making unnecessary any self-defense analysis.
    The use of force in another State’s territory without its consent, based on a claim of “self-defense,” triggers a duty to make disclosures to the United Nations Security Council under Article 51 of the UN Charter, the report explains. “[I]f Pakistan currently denies consent to U.S. drone strikes, as it has stated publicly, the U.S. has a duty to report to the Security Council on its invocation of Article 51 with respect to those strikes,” the report states. “Consistent with its prior practice, the U.S. should disclose the armed attack(s) giving rise to the right to act in self-defense and the measures that the U.S. is taking in the exercise of that right. It does not appear that the U.S. has met its disclosure obligations under Article 51 with respect to Pakistan.”
    Even if the use of force on another State’s territory is lawful, the report explains, the legality of killing a particular individual depends upon the existence of an armed conflict. According to the Report, “Except in extreme circumstances, a targeted killing outside of an armed conflict is almost certain to be contrary to [International Human Rights Law], which guarantees to each individual the right to life.” Whether an “armed conflict” exists is a determination that must be made on a State-by-State basis by considering the “intensity of the conflict” and “whether the individual non-State organizations in those countries have the structure required to qualify as ‘parties’ to an armed conflict.” The report explains that the issue of an alleged “global war” is irrelevant under international law if the United States is involved in domestic armed conflicts within individual States, even against different parties.
    The Report states that where it is determined that the United States is involved in an armed conflict with a non-State actor, “we follow the [International Committee of the Red Cross] Guidance that the principle of distinction permits the United States to target and kill a member of the non-State actor’s ‘armed forces,’ i.e., a member of the armed group who performs a ‘continuous combat function,’” the report states.
    Beyond the Article 51 requirements concerning the use of force on another State’s territory, the report concludes that “the United States is not required to make further disclosures on targeted killings under international law, no matter how desirable such disclosures might be as a matter of policy or ethics.”
    The Report makes clear that it “does not address the legality of the targeted killings under domestic U.S. law. Nor does it discuss the appropriate policy that should be followed even if that policy is not prohibited by law. However, we recognize that decisions regarding the U.S. targeted killings policy must be considered in the context of this nation’s democratic process. There are serious constitutional and other implications of conducting a largely secret war, and policy issues on its wisdom and morality. Thus, this Bar Association has urged that the U.S. Government make public the legal justification of its targeted killings policy. In a 2012 letter to President Obama, Association President Carey R. Dunne said, ‘Given the importance and relative novelty of the drone strategy, we believe this program should be the subject of informed public discussion and that, so long as the program is in use, decisions to use drone strikes should be made with the strictest of scrutiny and in a manner best calculated to avoid collateral damage.’”
    For the full report, click here: http://bit.ly/1lKPEuV
    For the introduction and executive summary only, click here:http://bit.ly/1oLzERD
    This entry was posted in New York City Bar Association and tagged Article 51,drones, International Committee of the Red Cross, International Human Rights Law,International Law, New York City Bar Association, targeted killings, United Nations Charter. Bookmark the permalink

  16. The president is a civilian. The reason he is called the Commander in Chief is that the military understand “chain of command”. The point is that the military is under political control, to avoid tactical victories that are strategic disasters.

    Bush I’s decision to no go to Bagdad is an example of the intended use of that role, in my opinion. The president is not a combatant, is not a lawful combatant, may not have people killed or order to be killed, other than by due process of law: arrest and trail, with the exception of immanent danger. as in Holmes’s “fire in a crowded theater”.

    Yes the CIA’s programs of assassination are illegal and always have been. There is a difference between a secret execution and an open and public one, however. Don’t ask, but if you must, the answer is No.

  17. The president is most certainly not a civilian. He is the commander-in-chief in name and in practice — he exercises effective control over the entire military. He is thus a combatant who can always be lawfully attacked in an international armed conflict.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.