A perennial question that arises about the use of force – but with particular emphasis now that drones are in the equation – is why the CIA is directly involved in the conduct of any uses of force, including drone operations? Why shouldn’t the military be the only ones authorized to engage in these use of force operations? It’s both a legal question – is it lawful for the CIA, as a civilian agency, to use force abroad – and a policy question – even if it’s legal, is it a good policy idea, rather than having the CIA engage solely in intelligence gathering and analysis, and have the uniformed military carry out any armed attack. (I’m going to Chris Borgen’s question at Opinio Juris.)
The comment that follows is not attempting to defend a position on either the legality or the policy. I’m just repeating in informal and summary form what I’ve been told over the last few years by people here in Washington when I’ve asked these questions. Take them for what they are worth; I’m not an insider to government and have no access to anything secret of any kind. It goes on for a while, so I’ll put it below the fold.
(1) The USG does not see a legal problem with participation by the CIA in the use of force under either international or domestic law; either in an armed conflict as civilians taking direct participation or, under some circumstances not apparently at issue today, self-defense operations outside of technical armed conflict, or together in coordinated operations with the uniformed military. I think this point is not sufficiently emphasized – the USG, at least, does not start from any presumption that it is unlawful, barely-legal, or even particularly unusual that a civilian agency would be tasked to use force in various circumstances. (I have long been struck, on the other hand, that among JAG officers or former JAG, there is sometimes a deep suspicion of that legal proposition. But whatever that observation is worth, for the defense and intel communities at the senior legal-policy-structure levels, CIA participation in operations is a baseline, not a legal reach.)
(2) Whatever issues of accountability might have existed after 9/11 in drone-targeted killing operations, the USG does not see that as a problem now and not for many years at least. Harold Koh was entirely serious when he talked in 2010 about legal reviews inside, and in any case, going forward, as Title 10 (military authority) and Title 50 (CIA and intelligence community) operations, personnel, and so on converge, so too legal reviews and standards. But the USG does not see as it owes accountability for legal standards in these operations outside of domestically required legal review and oversight through Title 50.
I also believe the USG sees many more intelligence risks than those of us on the outside do, in revealing what appear to be merely “legal” standards but which turn out, from the USG’s point of view, to have operational implications. Certainly it does not see that it owes accountability to NGOs or the UN; and its stance is that the role of judicial review over extraterritorial targeting decisions is highly limited, at most, even when US citizens are involved. The accountability as such is between the political branches. Many people, including me, have urged the USG to greater transparency as to legal review and standards, not as some supposed legal obligation, but as an important tool for political accountability and legitimacy.
(3) The CIA has been given an important diplomatic and political task in conducting operations in Pakistan that, up until recently and perhaps even still today, benefit from even the fig leaf of deniability. From where I sit, this looks dubious; and I have suggested that we need reforms to our accountability and oversight regimes to encompass more than simply covert-not covert. But people I’ve talked with tell me that even today there are political benefits to being able to say, “neither confirm nor deny,” vis a vis the Pakistan government. I’m not in any of those inside conversations, with Pakistan or Yemen or elsewhere, but it seems to me these are calls government officials have to make. The final point is, however, that the CIA is conducting these operations under the President’s direct order; someone has given serious thought to the diplomatic and other costs and benefits of the CIA versus the military conducting cross border raids.
(4) News reports, as Robert Chesney has noted several times, make reference to different internal government legal authorities governing activities of the CIA and the uniformed military. These refer to executive branch legal determinations that apparently set out quite different conditions for the CIA to act cross border and the military. These are not “law” in the statutory sense, but neither are they merely instantly revisable policies, either; they seem to be “structural” internal legal regulation that can be changed but are ‘embedded’ in ways that change has to be considered carefully. So far as one can tell from news accounts, they go to gradually changing the internal regulatory system for Title 10 and Title 50 operations, and as things currently stand, there is much more flexibility for the CIA to act across borders than there is for the military.
(5) It is important to distinguish the drone operations conducted by the CIA that are part of counterinsurgency to attack cross border safe haven camps and Taliban troop concentrations, and genuinely targeted killing as part of counterterrorism. The CIA does both; at an earlier stage, some people remarked to me that the CIA wasn’t interested in the broader CI role because it wasn’t interested in doing Air America again and thought it should concentrate on CT targeted killing. It undertook the larger scale raids because of the diplomatic and political reasons above and on account of direct political decisions of the president, not because it was especially interested in being the air arm over Pakistan in support of CI operations. However, conditions appear to have changed in the past couple of years, viz., the success of the drone operations in both programs has come to depend crucially upon ground level human intelligence gathered and assessed by the CIA, and this leads to a crucial operational role.
It might be the SEAL team carrying out the operation on the ground, but with the CIA “running” the operation because it has the intelligence network. But in the case of drone strikes, it might well be that the ground level intelligence leads to drone surveillance that presents a target of opportunity for an armed drone. In principle, one could stick a uniformed operator into the drone chair, but of course if one were serious about legal accountability requiring a military operator, that would have to run through the military chain of command and review. But the USG does not see that as legally required and takes that view with genuinely no sense of embarrassment, so to speak. Much of this might gradually merge as Title 10 and Title 50 operations merge, but the sense of the baseline, which to many legal academics is one place but to the intel community quite another, matters a lot. Neither Panetta nor, so far as anyone outside knows, Petraeus, has the slightest qualm about the adequacy in law and legal policy of the form of review of drone strikes by the CIA. Maybe the academics, advocates, and activists are right, and they are wrong, but it would be a major mistake not to understand the government’s baseline legal position.
(6) So the CIA is tasked with operations in part because it has experience, capabilities, and is closest to the intelligence that ultimately drives the operations. The shortest answer for why the CIA is tasked with operations is that it runs the intelligence networks that make the targeting possible. That matters to the USG, I would guess, a lot more than a formal and abstract legal argument that only uniformed military and not CIA should conduct these operations. Take that for what it’s worth, but that’s my guess.
(7) But there’s a further reason for the CIA in operational roles. Woodward in his book Obama’s War made passing reference to the CIA creating, or at least funding and working with, certain militias in Afghanistan. The book suggested numbers of proxy fighters that were, at that time, much higher than I would have guessed. These militias seem to be integrated with the intelligence operations which feed the drone and human team strikes, but also act as a ground proxy force as US military forces leave.
As the US draws down its uniformed forces in Afghanistan, in other words, it might turn out that the CIA is the primary force left behind – the French Foreign Legion of this conflict, as it were, always the last out, if it leaves at all. It remains behind to ensure that whatever bad things might happen if the remnants of American counterinsurgency and nation building are swept away, transnational terrorists do not re-acquire Afghanistan as a safe haven. And further to maintain the ground level intelligence network built up with great difficulty over the last few years and provide a staging ground for CT targeted killing raids into Pakistan that otherwise do not have an easy launching pad.
Something like the same kind of ground-level intelligence networks might be contemplated for Yemen, though it would presumably be a very difficult, long-term task. In any case, the right way to think about drones is not as drones, but instead as the deployment of intelligence-driven uses of force, whether human teams or drones, in which the drone is the last kinetic action of a long chain of mostly intelligence activities, including signals, human intelligence, and analysis. Intelligence drives the drones strikes.
(8) Take that for whatever it is worth, and it might be a sci-fi novel, for all I know. But one point still comes out of this picture. There are important, potentially crucial, strategic reasons why the CIA, as the developer and operator of the “dense” intelligence networks and the last important American force remaining behind in Afghanistan through intelligence networks and proxy forces, if anything will have a greater, not lesser, importance in direct operations in counterterrorism. There are strategic reasons for it that are not readily apparent to us as lawyers, and given a legal baseline for the US government that thinks CIA participation in operations does not begin from some presumption of near-illegality, my guess is that the government sees the CIA as fully a partner in operations.
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