Should CIA Drone Operators Worry?

If this short report in Newsweek is true, then I think I would worry about legal liability more than before, if I were a CIA officer involved in Predator drone strikes.  I would have a much greater level of concern that the administration would not back me up in case of an indictment in a European court, for example.  Or that it would not take steps to ensure, once the Obama administration ends, that its officials would be protected from future prosecutions, by sending out an unambiguous message that no American administration, Democratic or Republican, will tolerate such moves against American officials.  The international community that largely regards drone strikes as

  • (a) extrajudicial executions and murder by any other name;
  • (b) American cowardice in using technological superiority to avoid having to take personal risks to confront its targets;
  • (c) a reason why America’s enemies hide out among noncombatant human shields, with the result that the Americans “force” their enemies to violate the laws of war; and
  • (d) an invitation for the United States to use violence as a tool of frequent convenience because it does not have its personnel at personal risk (rather than seeing these advances in technology as humanitarian steps forward over a quarter century to increase discrimination in targeting, and rather than seeing that not having its people at risk allows the targeting to proceed on a more methodical basis, rather than in-out with greater, rather than lesser, pressure to act in the moment),

has so far refrained from doing to US officials what it is endeavoring to do to Israeli officials because of a belief, so far as I can tell, that Obama personally backs this, as he did in his campaign up until now.  His personal authority, rather than views of the United States as such, is the key source of inhibition by NGOs, UN representatives, and others.  The political calculation for the international community in this kind of debate is simple: attacking the United States increases one’s global legitimacy, while attacking Obama, at least at this point, does not.

Signals by the administration in the other direction will likely embolden legal action against American officials once this administration is over.  Signals from the international community, if not vigorously contested and rejected by the Obama administration, that the international community will pursue such actions down the road will have pretty much the same effect today: to disincentivate American intelligence officials from doing anything that they are not 100% sure will be legally protected now and in the future.

It is crucial, in my view, that the administration put on the record, or be pushed into putting on the record, a plain and broad statement that its drone policy is legal, not on narrow grounds of an armed conflict in Afghanistan spilling over into Pakistan, but on broader grounds of self-defense.  It would be consistent with what the President said at West Point, after all, in referring to action in Yemen and Somalia or other places in order to deny Al Qaeda safe haven wherever it might go.  But the administration needs to say say, plainly and broadly, as a declaration of the American view of the international law of self-defense.

Says Newsweek’s Mark Hosenball:

One person standing in the way of expanded missile strikes: President Obama. Five administration officials tell NEWSWEEK that the president has sided with political and diplomatic advisers who argue that widening the scope of the drone attacks would be risky and unwise. Obama is concerned that firing missiles into urban areas like Quetta, where intelligence reports suggest that Taliban leader Mullah Mohammed Omar and other high-level militants have sometimes taken shelter, would greatly increase the risk of civilian casualties. It would also draw protests from Pakistani politicians and military leaders, who have been largely quiet about the drone attacks as long as they’ve been confined to the country’s out-of-sight border region. The White House has been encouraged by Pakistan’s own recent military efforts to root out militants along the Afghan border, and it does not want to jeopardize that cooperation.

Of course this is Newsweek; it is quasi-reporting and quasi-opinion, so it is hard to know what to make of this.  Hosenball might be spinning things; he might be getting spun; there are many possibilities.  But if this were true, and I were a covert operations official at the CIA, I would be worried.

(PS.  Update on the British arrest warrant against a senior Israeli official:)

Israel reacted angrily Tuesday to a British arrest warrant for former Foreign Minister Tzipi Livni on war-crimes allegations, with the government threatening to sideline the U.K. in Mideast peace talks.

A Westminster, London, magistrate court on Saturday issued the warrant, alleging crimes related to Israel’s military operations in the Gaza Strip in late 2008 and early 2009. Ms. Livni, who is now opposition leader, was foreign minister at the time and one of three government officials — with then-Prime Minister Ehud Olmert and Defense Minister Ehud Barak — to oversee the offensive.

The warrant was issued ahead of a U.K. convention of the Jewish National Fund, to which Ms. Livni had been invited, but had declined to attend. The warrant was revoked by the court on Monday after it was clear she wasn’t in the country.

Of course, it does not require an actual prosecution in order to create big effects; the uncertainties introduced about the future are enough to shift behavior today.  That is also true of CIA officials in this country – not knowing what will, or will not be, sufficient to provoke an arrest warrant abroad by some magistrate acting on vague and discretionary authority, such as Baltasar Garzon in Spain, and moreover acting in a climate of local public opinion against the foreign country and its agents, such as the United States or Israel.

The British legal system allows private individuals and organizations to request arrest warrants from local courts under the principle of “universal jurisdiction.” The judicial concept allows domestic courts around the world to try cases of war crimes and crimes against humanity, even if the infraction occurred abroad and the suspect isn’t a citizen.

In recent months, U.K. lawyers representing Palestinian groups sought an arrest warrant for Mr. Barak, but it was denied on grounds of diplomatic immunity.

Israel called for “immediate” action from the U.K. to block plaintiffs from using its legal system to put Israeli leaders on trial for actions in the Palestinian territories. Ms. Livni is the fourth senior Israeli official since 2004 that pro-Palestinian activists have sought to detain using British courts.

As this British situation shows, it is a process by which central government can shrug, if it wants to, say it’s the independent judiciary, we can do nothing, while allowing the process to be captured by activists and advocates further down the system.  Protests by Israel mean little, protests by the United States (if it is inclined to make them, which is far from guaranteed) mean little more.  And, to judge by the behavior of Spain, what matters is the protest, public or private, of a rising power with teeth and the expectation that it will be heeded – China’s private objections to Spain’s expansive universal jurisdiction provisions and the indirect threat of withholding economic benefits, I’m told by decently connected friends in Spain (but cannot verify), was important in getting Spain’s legislature to consider scaling back its ambitions on criminal universal jurisdiction.

It is also important to recognize that the United States has its own civil law version of such universal jurisdiction, the Alien Tort Statute – and one of these days, it too will face a challenge from China on behalf of one of its corporations getting sued in the US for its actions in Africa or elsewhere, and it will be exceedingly interesting to see how the US reacts.