CIA General Counsel Speech on Hypothetical Uses of Force

The speech delivered by CIA General Counsel Stephen Preston at Harvard yesterday is important and illuminating, and I agree with Ken the administration should be commended for it. But wow does it raise some troubling questions about how the CIA understands the legal authority for and constraints on its drone operations. There’s too much to unpack in it for one blog post, and I’d urge those who follow these interests to read it for themselves. Meantime, I’ll start with two issues: (1) the CIA’s understanding of its domestic authority to use force; (2) the CIA’s understanding of whether/how international law constrains its actions.

Domestic authority. Preston correctly explains that the CIA must have some source of authority under domestic U.S. law to carry out “hypothetical” activities involving the use of force abroad. In this inquiry, of course, international law is irrelevant. And I don’t read Preston to suggest that international law can give the U.S. government powers it does not otherwise possess under our own Constitution and laws. So what gives the CIA its authority to carry out drone strikes? Here’s Preston:

“First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

A specific congressional authorization might also provide an independent basis for the use of force under U.S. law.

In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding.”

Several points. Preston leads with – giving the impression that it does not only some but significant lifting in authorizing CIA actions – the President’s power under Article II of the Constitution. The non-reliance on Article II as an independent font of authority in U.S. counterterrorism operations – as opposed to statutory authorizations with specific limits – has been one of the central ways in which the Obama Administration has distinguished itself from the Bush Administration, which claimed sweeping authorities under Article II. So seeing it feature prominently here is striking. There are, important to emphasize, important differences between this invocation of Art. II power and Bush’s. Preston cites the President’s Art. II power to, as the framers put it, “repel sudden attacks.” There are few who would doubt the existence of such a power, and the Supreme Court has recognized it in various ways back to the Civil War era Prize Cases. This is in principle a narrower claim of authority under Article II than the (Bush) claim that Article II generally gives the President the power to detain people, interrogate them, and tap their phones as long as we’re in a state of armed conflict. How much narrower? Narrower at all? It depends a heck of a lot on what counts as “an imminent threat of violent attack.” How imminent does it have to be? Something more clear and specific than the general state of threat we face from, e.g., Al Qaeda? If a generalized threat from a group that’s attacked us at some point in the past is enough, then I confess I’m not sure how to distinguish this from the Bush-era understanding of Art. II.

Presumably Preston fronts the Art. II authority in part because CIA thinks that the statutory powers on the books don’t suffice to authorize all of the uses of force the CIA has carried out under its drone program. Indeed, the list of powers, Constitutional and statutory, is framed strangely. Preston says CIA first would make sure the action is authorized by the Constitution. And then notes, in quite different terms, “also” or “in addition” that statutory authority might exist. As if CIA doesn’t actually see the statutes as independent sources of authority. Do we take from this that CIA sees all of its use of force authority as coming from Article II, and the statutes on the books are just regulations, not themselves relevant sources of authority?

In particular, Preston doesn’t mention the 2001 AUMF expressly (which all 3 branches of government have interpreted as authorizing a global war against Al Qaeda). I can imagine 2 reasons why he might not want to get into the AUMF. One, the force authorized by that statute is limited to the groups who attacked us on 9/11, and some of the CIA’s targeting operations (it appears from press reports) have been aimed at individuals or groups who are only very arguably connected to those attacks. Is Al Shabab, for example, born as a domestic Somali insurgent group, really one of the organizations Congress meant to reach in its 2001 AUMF? Dicey to claim so. But we seem to be targeting some of their members anyway. Two, the administration has taken the position in court and elsewhere that international law, including the law of armed conflict, should inform the interpretation of (and, it would seem, constrain the use of) what force is authorized under the AUMF. But the CIA seems to have a different view of the applicability of LOAC, on which more below. So I can see why they wouldn’t want to rely on AUMF if they can help it. Which brings us to…

International law. Is there anything in international law – law of war or customary international law – that the CIA thinks it is bound to comply with as a matter of law (as opposed to, say, sensible policy or practice)? My read of this speech is that the answer is no. I would be very happy to be contradicted. The key sentences are described as a question of “compliance in execution with reference to international law principles.” And I’m not sure what the word “principles” is doing in there except to soften the notion that many of the relevant rules that might apply are simply law – indeed, when it comes to treaties the United States has signed and ratified, “supreme law of the land” under the Constitution. Here’s the relevant paragraph in its entirety:

“Here, the Agency would implement its authorities in a manner consistent with the four basic principles in the law of armed conflict governing the use of force: Necessity, Distinction, Proportionality, and Humanity. Great care would be taken in the planning and execution of actions to satisfy these four principles and, in the process, to minimize civilian casualties.”

If the past decade has taught us anything, I’d kinda think it’s this: Pursuing a policy “in a manner consistent with” the law is not the same as pursuing a policy that is bound by the law. So what’s going on? And now we enter the realm of pure speculation, but I guess that’s what blogs are for. So here’s what I imagine. I imagine that the CIA is targeting two kinds of people: (1) those it believes are participating in the armed conflict the United States has defined (i.e. a war against Al Qaeda and associated forces), and (2) those who are not plausibly understood as part of that armed conflict.

If the United States is targeting people in category (1), we are bound, as a matter of law, to comply with the law of armed conflict, which of course include, as a matter of law, the Geneva Conventions containing the rules Preston lists. We may well be complying with those rules – both the military and the CIA – that is, for example, not violating rules of proportionality in targeting. But even if we are complying with those rules – and boy do I wonder if and to what extent the CIA agents are trained in them – if agents of the CIA are pulling the trigger, I would think they may then be subject to criminal prosecution by domestic or foreign (or, if a tribunal with jurisdiction came to exist, international) courts for unlawful acts of violence they commit as unprivileged belligerents. CIA civilians are not members of our armed forces, and do not otherwise (as far as I know) meet the criteria under GCIII, Article 4 to lawfully participate in hostilities. So I can see why the CIA might be loath to acknowledge the applicability of these rules as law. But apply as law they do.

As a matter of international law – specifically, the UN Charter, to which we are a party, and which Preston cites – the United States may not lawfully target people in category (2) (i.e. those not part of our already quite broad armed conflict) unless it is exercising the “inherent right of individual or collective self-defence if an armed attack occurs …, until the Security Council has taken measures necessary to maintain international peace and security.” In the clearest summation of what the United States thinks that means that I’ve seen of late, Preston says that right includes, “for example, [where] the United States has already been attacked, and its adversary has repeatedly sought to attack since then and is actively plotting to attack again, then the United States is entitled as a matter of national self-defense to use force to disrupt and prevent future attacks.” Now there’s a ton to say solely on the question of whether this is a fair interpretation of the right of self-defense. But let’s assume for the moment it is. The rules that govern the exercise of that use of force in self-defense – i.e. how much force can you use, against whom, under what circumstances, etc. – are not only “principles.” They are customary international law, even by, I’d long thought, the estimation of our own government. So why not just say, at the very least, the CIA is bound by the customary international law of “Necessity, Distinction, Proportionality, and Humanity” governing the use of force? On this point, I have reached the limit of my imagination.