CIA back in the drone business

My very first piece for this blog explored the fact that covert warfare is becoming, or even has become, the international standard for conducting hostilities. And with the President of the United States granting the CIA authority to conduct lethal drone strikes once again, it seems that the United States is committed to wage these hostilities further and further away from the obligations within traditional modes of conflict.

The new rules reportedly once again allow CIA supervisors managing the covert operations to give the clearance for drone strikes. The previous administration placed drone strike activity under Pentagon control, and only then under limited capacity outside direct military action. Now, the United States is returning to an original framework regarding CIA having exclusive authority to conduct drone strikes independent of executive need to be in the know.

This shift is legally important both domestically and internationally. Targeted killings done by drones from the CIA fall under Title 50 of the United States Code, while the Department of Defense use is governed by Title 10 and includes far more restrictive and oversighted procedures. But more than that, as former Marine Corps Lawyer and Georgetown law professor Gary Solis has mentioned many times, “CIA agents are, unlike their military counterparts but like the fighters they target, unlawful combatants.” And there arises the concerning issue.

International law is sorely lacking on issues of espionage, namely because espionage is conducted as state practice. Most laws relevant to spying are domestic in nature. No state desires to bind its capacities to spy based on a treaty. The rules of espionage and proper conduct by intelligence communities develop as customary international law by state practice. This makes it so much more important to scrutinize new practice techniques of the intelligence communities. Left alone long enough, they become the acceptable practice for states.

But international law does provide the per se illegality of intentional killing by those lacking combatant privilege. By shifting authority back to the CIA to conduct drone strikes, the United States is moving away from internationally defensible and accepted norms regarding the conduct of hostilities. This will only further international condemnation of illegal use of strikes abroad, not just on grounds of violation of sovereignty, but now so on grounds of unprivileged combatants. But this is not to say that the United States does not have a legal argument at its disposal.

Footnote 44 of the OLC Awlaki memorandum provides what is yet the best argument regarding CIA drone usage. Quoting eminent scholar Richard Baxter, the United States takes the position that it is important to not be confused with “acts punishable under international law and acts with respect to which international law affords no protection.” Strictly speaking, international law does not prohibit civilians from taking direct part in hostilities. Granted, it won’t convey combatant’s privilege upon them either. This footnote goes on to say, “lethal activities conducted in accord with the laws of war…do not violate the laws of war by virtue of the fact they are carried out in part by government actors who are not entitled to the combatant’s privilege.” And there does exist the incorporation doctrine of Article 43 Protocol I (applicable only to IACs and not the current situation where CIA drone strikes most likely are to take place) which arguably would grant privilege status to CIA operatives. But this means declaring the CIA as a part of the military structure (something which would require a new statutory charter for the CIA).

But why do we care? We care because of mistakes. The laws of war, command responsibility, title 10, and the like all function to ensure that the seriousness of actions taken in war are rooted to an individual we can charge and punish; title 50, the lacking laws on espionage, and the CIA do not. This means the shift allows for a greater latitude of drone usage with an almost impossibility for assigning responsibility for prosecution.

It may not matter as to the results on whether a drone strike is conducted by a military unit or the CIA. The analysis to engage in hostilities will very much be the same according to the laws of war. But we should all be concerned on moves that reduce personal responsibility for actions in war. Drones, first, work to decrease and impersonalize the acts of war, and now CIA usage further hides responsibility behind a screen. I do not know where this will lead in practice, but we should all be concerned at making the ability to unleash the violence of war accessible to civil analysists who certainly would experience tunnel vision on the importance level of the targeted actor. Causalities will only rise because of this.