Drones and the CIA and Charlie Savage’s NYT Article

Although I was up at six, I think Julian must get up a lot earlier than I do, as he is regularly beats me to the punch on what’s in the newspapers on drones.  I will post something more once Philip Alston’s report is out next Tuesday and I have had a chance to read the text.  But here are a couple of comments per Charlie Savage’s exceedingly interesting NYT piece.

There are two ways of seeing a call for drone strikes to be turned over to the US military, rather than the CIA.  One is fundamentally grounded in the binary that all uses of force must be either law enforcement or else armed conflict – and if so, there is no room for the CIA to be conducting these strikes.  In that case case, the call to take the CIA out of it is a way of reasserting the basic binary.  This is problematic from the US standpoint, if it is a way of reasserting this fundamental binary, since the Legal Adviser’s ASIL speech specifically preserves an independent ground of self-defense that is not a matter of armed conflict.  If CIA participation is unlawful because the binary holds, then the US has simply rejected the underlying premise – indeed, said that it has never accepted it, going back clear to the 1980s and beyond.

The other way to see a call to take the CIA out of the activity is on the ground that because this is an armed conflict, uses of force must be undertaken by lawful participants, and the CIA, as a civilian agency, is not a lawful participant.  Insofar as this is offered as something that is not driven by the fundamental binary above, then it is essentially a claim about the CIA not meeting the requirements lawfully to engage in hostilities – some version of the claim that the war with Al Qaeda is an armed conflict, and the CIA are not privileged combatants.  This is a technically more complicated claim in the rules of war than much of the public discussion has treated it.  Much of the public discussion seems to revolve around the idea that if you are a civilian, you are not allowed to take part in hostilities; the legal point, rather, is that there are numerous categories of civilians that have varying roles in direct participation in hostilities and the point is not to say that their participation is unlawful, it is that – if they were facing a lawful foe – they are themselves lawful targets.  Whether they wear uniforms or not is a question of whether the circumstances in which they wear uniforms, or non-standard uniforms (e.g., special forces in Afghanistan), etc., is a question of whether they fail to distinguish themselves from the non-combatants.  Insofar as they do this from Langely in some cubicle, that does not really present a problem.

As to the assertion that they have made themselves lawful targets – that would be true if engaged with a foe that could lawfully target anything.  In the case of a terrorist group – Al Qaeda, the IRA, ETA, etc., the automatic assumption that military lawyers sometimes make, that jus ad bellum and jus in bello are independent, is beside the point; these groups have no reciprocal right to target anything, irrespective of whether, in a lawful conflict, something or someone would be a target.  It is not the case that by flying a drone from Langley, the CIA operator is now a lawful target – he or she would be if flying it in a conflict with, oh, North Korea, but not Al Qaeda.  Al Qaeda has no belligerency rights jus ad bellum, just as it has no combatant privilege jus in bello.  To suggest that the CIA at Langley has put itself into an “equivalent” position is not correct.  If the CIA at Langley were fighting a lawful actor, its participants would be lawful targets – although not, merely in virtue of not wearing uniforms inside Langley, “unlawful combatants.” But not as regards Al Qaeda.

So, I don’t think that the special rapporteur gets legal traction on either the grand or narrow way of saying that the CIA should be out of it.  There is a further policy – not legal – rationale, that the military has better legal mechanisms of target review, collateral damage and proportionality review, etc.  I do not believe that is true – nor does Harold Koh believe it is true.  Indeed, there is a good argument to make that the CIA engages in much more review of individual targets and makes the decisions at a much higher level than the equivalent military strike, and that moving review to the military would in fact bring it down the command structure.  Gates is not passing on military strikes the way Panetta and Obama and the Congressional oversight committes have to pass on things.

But actually, this is not really that useful an argument.  The military uses drones in a largely different function than the CIA has, at least up until recently.  The military uses them, and sees them in a military sense, as simply another air support weapons system, and target review from a legal standpoint is not different from any other calculus of a similar weapons system.  At this moment, as a matter of discretionary military strategy, the US military in Afghanistan has put in place an exceptionally restrictive ROE for the purpose of minimizing civilian harm that goes beyond what the law itself would require – but that is a matter of discretionary counterinsurgency strategy, not a requirement of law.  Review of strikes is by the military itself, in theatre. The CIA, up until recently at least, has had a different strategic role and mission – taking out high value targets far from battlefield action, on the basis of various intelligence sources.  The use of force is far more focused, and the decisions – however much in fact driven by Pakistan military and intelligence sources (which would be the same even if the US military were doing it) – made at a far higher level, with the special national level oversight and accountability demanded of the CIA but not the military.

One is not better than the other, insofar as they correspond to distinct missions.  In any case, the presumption that the CIA is less, rather than more, rigorous in its legal review of targeting seems to me as likely an automatic prejudice against the CIA as anything else.  It might be true, but it should not be assumed; the political oversight mechanisms are in fact stronger.  The ACLU will presumably respond, via its FOIA lawsuit for information on all this, that we can’t know unless the Obama administration reveals all this information.  But that’s why we have Congressional oversight committees – to make determinations about that consistent with national security interests, not those of the ACLU, whose FOIA request is remarkable chiefly for the amount of operational detail that is directly or impliedly asked for.  It would take AQ months or years to get through the stuff for which the ACLU FOIA request serves as a stalking horse.   That, plus a strategic sense that those who object to drone warfare on fundamentalist legal grounds would rather peel off the CIA from this first, rather than saying anything bad about Our Men and Women in Uniform.  Far fewer will vigorously object to dark mutterings about the CIA.

This is complicated today by the fact that, as Adam Entous reported in a fine piece in Reuters last week, the conflict in Pakistan and the use of drones therein seems to be shifting, away from a focus on strategic high value attacks on leadership to something that looks much more conventional, the use of drones as just another air platform for attacking relatively low level fighters as they are grouping.  And doing so against the Pakistan Taliban, in some sense as an air support arm in a new, or expanding conflict, of the US and Pakistan against the Pakistan Taliban.  If that’s the case, I have argued many places that there is an important US policy discussion to have, as to whether, once things reach a level of overt, conventional war, the US military should take over from the CIA.  I do not believe the CIA would have a turf difficulty with that – I could be wrong – but I have the strong impression that the CIA believes that its longterm comparative advantage in the use of force is … discrete, intelligence driven, high value, deniable, covert uses of force – an in a legal sense, the “pure” self-defense, not in an armed conflict, part of “use of force.”  Not a parallel conventional war, Vietnam-style.  The fundamental block on making this shift is the Pakistan government, which appears to have powerful domestic reasons to want to be able say, even as pure fig leaf, the US military is not fighting in Pakistan.

But these are policy debates, not legal ones.  Philip Alston cannot really be satisfied with them as the drivers.  Indeed, it is hard to believe that he really thinks that it can ultimately be anything other than the “binary”; everything else is just a strategic push back to reach that point.  However, there is one additional legal twist that affects this.  The position that I have associated with the special rapporteur, with Nils Melzer and his formidable (if, in my view, mistaken) treatise on targeted killing, the ICRC, the ACLU, and the general campaign against the drones has at least two fundamental and independent premises.  One is the binary above.  The other is the proposition that armed conflict is geographically limited.  (I am leaving aside, by the way, a hugely important part of this discussion, almost entirely ignored, about the difference in the argument between international and non-international armed conflict.  But that for another day.)

If you accept the first premise, but not the second, then you broadly speaking fall into the camp occupied by a number of military lawyers – David Glazier, for example, if I understood his testimony at the last Congressional hearing well, or Michael Lewis, if I correctly understood his written submission to the hearing.  That is, they do believe that such uses of force must constitute armed conflict, but they do not accept the idea that it is geographically limited in some inherent sense.  It is, rather, that the conflict goes where the participants go, which might be anywhere.  Anything else has no basis in state practice, to start with, for the good reason that it contravenes the most basic notions of military necessity – the enemy can decamp to someplace that is not “part of” the zone of armed conflict and cannot be attacked.  That is a non-starter, as a legal and military matter.  They thus have questions not as to whether drones can be used as part of an attack in an armed conflict, without warning or attempt to arrest, anywhere a lawful target might be – but they do have questions as to whether, and on what terms, the CIA can participate.  At that point, however, they rejoin the “narrow” debate above as to whether the CIA can be treated as part of the armed forces of a state, questions of uniforms, and many other things.  They have views, but also suggest that these things are matters quite subject to technical legal debate.  But self-defense apart from armed conflict does not figure as part of this view.

If, on the other hand, you accept both premises, then you are where the special rapporteur is, if I understand his position well up to this point.  The use of force has to be part of armed conflict, the participants have to be lawful (with a still further assertion that the CIA will, so to speak, lose that argument and turn out to be unlawful), and the scope of attacks is limited in some geographic sense to a theater of conflict.  Attacks within the zone of conflict – say “AfPak,” although many of the holders of this position think even that is geographically too broad – are lawful, but attacks outside of it, in say Yemen or Somalia, are not, even if the person being targeted is without question a lawful target save for that.  That, at the end of the day, seems to me a fair statement of the special rapporteur’s position on the basis of all earlier statements; maybe it’s not, but in any case we’ll have to see next week whether it has shifted since.  In that case, however, pressure to remove the CIA on any other ground seems to me simply a strategic move in a larger game that is a bit bit-and-switch in appealing to the ‘narrower’ position.

In which case, however, the US should recognize, at the highest levels of agencies and departments’ general counsels, that the US has (re-)staked out a fundamentally different position, one that denies the binary, and thus denies that all uses of force are necessarily either law enforcement or armed conflict.  The US has already said that is not its position.  For that part of the war against AQ that is an armed conflict in a technical legal sense, there is an important legal discussion as to whether and on what bases the CIA directly participates in hostilities and the implications of that – it is not that they are unlawful combatants, it is that they would be lawful targets – but only if their foe were a lawful belligerent and not a terrorist group without lawful grounds to use force against anyone.

In that technical legal argument over the CIA as combatants or directly participating in hostilities, and if one takes the US’s independent self-defense view, then curiously, the CIA is on firmest legal ground in precisely the situation in which the special rapporteur would say that its legal ground is the shakiest.

That is, if the CIA operates drone strikes against a target in Somalia, for example, it might apply the self-defense rationale and say that it is not an armed conflict, and is instead an act of self-defense simpliciter.  In that case, the questions of lawful combatancy do not actually arise.  On this view, however, it has a further technical case of legality as a direct participant in hostilities – curiously – if it engages in drone strikes within the context of something that is an acknowledged armed conflict, e.g., the border areas of Pakistan, precisely because it is an armed conflict and the technical rules of combatancy apply.  Conversely, if you take the position of the binary plus a geographical limitation on “armed conflict,” then the CIA has legal difficulties in both situations, Somalia and the Pakistan border, but they are probably greater in the Somalia case.