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Obama's Drone Killing Program Slowly Emerges from the Secret State Shadows

Christopher Anders,
Director of Policy and Government Affairs, Democracy and Technology,
American Civil Liberties Union
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March 28, 2013

Originally posted by The Guardian.

Should we be happy or worried that the CIA may, someday soon, no longer be able to order a drone pilot to shoot a Hellfire missile in some faraway land?

According to several news reports, the Obama administration may be moving full control over its targeted killing program to the Department of Defense, provoking reactions among human rights advocates ranging from handwringing to cautious praise.

Over the past five years, the CIA and Pentagon have split who has authority over particular strikes. It may not have mattered to the approximately 4,700 people left dead across several countries, but jockeying for control between the Pentagon and the CIA over who has authority over specific strikes and specific countries has been a background theme of the Obama administration’s killing program.

Newly confirmed CIA Director John Brennan, who was the architect of the program while serving as the White House counterterrorism advisor, was long reported to have sought to switch all authority over the killing program away from the CIA and to the Pentagon. News reports this weeksay that the White House is now considering a proposal to do just that, although maybe on an extended timetable, and maybe with the CIA retaining control for an even longer period over the drone campaign in Pakistan.

Our hope is that just as President Obama ordered the CIA out of the torture and prison business, he will order the CIA out of the killing business. The CIA should go back to – if it ever truly was there – its core function of collecting and analyzing foreign intelligence.

That said, the CIA will not be gone from the killing program. In the parlance of modern warfare, the goal of combat is to “find, fix, and finish” the enemy. A top congressional staffer told me that the CIA will still “find and fix”, which means the CIA will locate targets and keep them within American crosshairs. The military alone, however, will have authority to order and carry out the “finish”, which seems most often to mean kill the target, but can mean capture or arrest.

In some respects, this could be similar to what occurred after Obama ordered the CIA’s secret prisons closed and the torture and abuse of detainees to stop. The CIA can still identify persons for questioning and advise on the questions, but it can no longer be the prison warden, inquisitor, or torturer. While it may still retain an important role in the killing program, taking away the CIA’s authority to order the trigger pulled is a big shift.

Although shifting all authority to the military to “finish” a target won’t make the program lawful or wise, it will have some real-world effects. The question is what could this shift mean for applicable domestic legal authority, where and how often strikes will be carried out, congressional oversight, and transparency?

The cause of angst in the intelligence community is that the CIA losing authority to order strikes could mean the end of the armed drone program as a covert operation. This is a big deal. Under American law, a covert operation is one that is designed and executed not only to be secret in its operations, but more importantly, to be set up so that its sponsorship by the United States government can and will be denied.

The goal of a covert operation is to skirt many of the checks that should otherwise apply to the use of force in a foreign country. The objective is to try to duck being subjected to the laws of war, to the domestic laws of the affected countries that prohibit killing, and, of course, to the worldwide opprobrium that should follow death raining down from the sky in places where the United States is not at war.

While the president can authorize the military to carry out a covert operation as a matter of domestic law, military covert operations are rarer than CIA ones, and limited to times of war or when the War Powers Resolution notification has been made. But the broad goal of the CIA killing program of denying sponsorship of strikes may be coming to an end.

Several members of Congress and key staff also believe a bigger real-world consequence of military control will be fewer strikes. According to them, there are three reasons for this, owing a lot to the nature and traditions of the military.

First, putting all authority to “finish” an operation in Pentagon control would end an inter-agency competition that may have led to more strikes over the past several years. Second, the military and its civilian leadership worry about the military getting into places from which it cannot easily extract itself. No one wants another decade long war. Third, the Pentagon intensely worries about blowback in affected countries that could threaten uniformed American troops in the region. If this prediction is accurate, it could mean fewer and less widespread strikes.

The impact of Defense Department authority over all killing decisions has also sparked its own debate on whether there will be more or less oversight by Congress. The Senate confirmation hearings for Brennan for CIA director made embarrassingly clear to everyone that Congress had not exercised much oversight over the killing program. Until the hearings, the Senate intelligence committee had seen only two of an estimated 11 legal opinions on the killing program, and lacked even the most basic information, such as in what countries drones had been fired and what were the level of civilian casualties. (The committee still does not have answers to either of these questions.)

It is hard to see how oversight could get worse if the Pentagon gets full control. This is certainly an unanswered question, but several key congressional staffers have pointed out that the CIA has only three Senate-confirmed officials compared to the Defense Department having dozens of officials, and all top officers, requiring Senate confirmation. The Pentagon also has a much more pervasive tradition of being responsive to the Senate and House armed services committees.

A critical challenge for congressional oversight and public transparency is that the military end of the killing program has been run – and will continue to be run – by the secretive Joint Special Operations Command (Jsoc). Congress can exercise oversight over JSoc, and the reduced reliance on covert operations authority should make it more likely that the United States acknowledges its strikes, but there is certainly a need for greater vigilance than if the military program was carried out by regular troops.

As important as congressional oversight is, transparency to the public is a necessary check on the killing program. The leak of the “white paper” summary of a government legal opinion authorizing the killing of an American citizen, combined with a spotlight on the program in the wake of the Brennan nomination, has woken up both Americans and the world to an enormous killing program.

Here again, it is still unclear whether the Pentagon will be any better than the CIA at informing Americans of who is being killed, where, and why. Nevertheless, it’s hard to be any less transparent than a CIA that fought in court – and just lost – its claim that whether the CIA even had an interest in the targeted killing program was itself classified.

Putting all of the pieces together, it is an important step in the right direction to give the authority to kill solely to the Defense Department. But much more remains to be done to fix a program that is unlawful, dangerous, and unwise – regardless of whether the CIA can order the kill button pushed.

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