by Jaimie Orr
In his blog post on Opinio Juris entitled Let’s Call Killing al-Awlaki What It Still Is — Murder,Kevin Jon Heller argues, among other things, that the released OLC memo does a very poor job of arguing that the public-authority justification applies to the CIA. Absent this exception or defense, he asserts, a strong case can be made (indeed is being made) that the activity violated 18 USC 1119, the foreign murder statute. The gist of Heller’s argument is that the legal authority available to DoD (had it undertaken the attack) is not available to the CIA:
Notice that the AUMF specifically authorizes the President to use the “United States Armed Forces” against AQ; it says nothing about the CIA using force. And, of course, the War Powers Resolution, which the AUMF specifically references, applies only to “the introduction of United States Armed Forces into hostilities.” How, then, can the AUMF provide the domestic authorization necessary for the PAJ to apply to the CIA?
Heller’s claim is one he has made before, in an earlier post (Why the “Public Authority” Defense Does Not Work for the CIA, March 10, 2013), also for Opinio Juris:
The CIA is obviously not an “organized armed force, group, or unit” that is under the command of the US military; the CIA is, in its own words, “an independent US Government agency responsible for providing national security intelligence to senior US policymakers.”
I don’t agree. I think, at least for purposes of International Humanitarian Law, specifically Article 43 of the First Additional Protocol to the Geneva Conventions (AP1), it would seem that the CIA’s role is permissible. Here’s the pertinent language from the treaty:
43. Armed forces
1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates…
The CIA may not be a part of the US military, not subordinate to the Secretary of Defense, but it is hard to claim it is not in any way an armed “group” or “unit” which is under the Command of the responsible party – the same person with responsibility for the military services, namely the Commander in Chief. Now, there are other criteria that warrant consideration, to be sure. Do members of the CIA’s paramilitary units comply with the other provisions of IHL (for example, Article 4 of the Third Geneva Convention)? Those criteria include
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
(a) and (c) seem to apply (remotely piloted aircraft are operated in the open). The claim is made that (d) applies. Does (b)? Hard to say, but it’s also hard to understand how this criteria has modern relevance with stand-off weapons of any sort.
Others seem to recognize this. Bobby Chesney states, in his post Unsound Criticism of the Legality of Drone Strikes at Foreign Policy:
It’s not obvious that the CIA would fail this analysis; indeed, a strong argument can be made that these operations take place subject to a command structure, that they involve the open display of arms (the drones themselves, of course); and that they are conducted in accordance with the laws of war.
Ken Anderson made much the same point in his post Drone Warfare, the CIA, and Charlie Savage’s NYT Article in 2010.
Nevertheless, Heller argues that international law is not the definitive decision, but rather that the determination must be made under US domestic law. He argues that the AUMF does not apply to the CIA as it applies to “military force” as that term is defined under US domestic law.
There does seem to be some support for Heller’s position, as the US Code, in Section 101 of Title 10 states that “(4) The term “armed forces” means the Army, Navy, Air Force, Marine Corps, and Coast Guard.” But, is that an exclusive definition of the term? Does this language limit the applicability of the AP1 definition to the five services alone? At least one military legal writer has opined that it does. (See Mark David “Max” Maxwell, The Law of War and Civilians on the Battlefield: Are We Undermining Civilian Protections, Military Review 20-21 (Sept.-Oct. 2004)).
There is a fairly significant proviso, however. While the title of the AUMF says “military force” the actual text of the law does not:
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Here the use of force is NOT limited to military force. Instead, the expressly granted authority is to use “all necessary and appropriate force.” It appears that the Administration is taking the position that when the authority to use “all” necessary and appropriate force is given to the president, he can then turn to all tools available to him as Commander in Chief. And this includes the CIA’s covert capabilities.
This seems to track with both the historic view of the United States and other nations that civilians who are assigned by a nation-state to directly participate in hostilities, so long as they otherwise comport themselves according to international humanitarian law, can be afforded the combatant’s privilege against routine domestic prosecution. (See ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (Nils Melzer, ed., 2009) at p. 22).
While the reference in the AUMF to the War Powers resolution may have spoken only in terms of “armed forces,” given the historic reliance of the United States on the CIA as an adjunct to the Armed Forces in previous wars, it is extremely hard to conclude that the AUMF was intended to provide no authority for CIA involvement, so long as that involvement is otherwise within CIA’s legislative and regulatory charter and IHL. (See Kathryn Stone, Col. US Army, “All Necessary Means” – Employing CIA Operatives in Warfighting Roles Alongside Special Operations Forces, U.S. Army War College Strategic Research project 16 (2003) available at www.fas.org/irp/eprint/stone.pdf).
The CIA’s authority to engage in covert operations carries the requirement that such activities must otherwise comport with US law (50 USC 3093(a)(5)). As noted by the commentators above, the Executive Branch has asserted that the AUMF does, in fact, provide the CIA this legal authority, and by extension the legal authority of the President to rely on the CIA as an instrument of implementing the AUMF, which in turn provides the umbrella coverage of the combatant’s privilege. This, of course, is the analysis provided in the DOJ White Paper (with which Heller obviously disagrees).
Given the lack of direct statutory language affirming the Executive Branch’s analysis, the strength of this position is not clear and it would seem to implicate serious constitutional and statutory issues relating to the role of the CIA in our system of government. As set forth in the President’s NDU speech last year, it is safe to say that general policy constraints are in place, but we see in other areas that policy constraints alone do not (and should not) satisfy civil libertarians.
So this, as with many other issues, is not closed with the release of this opinion. The heavy redaction in the memo of the detailed factual justifications makes more specific analysis difficult. The issue of imminence of threat posed by an individual and the availability or unavailability of other measures (capture) turn on the facts of each case, and little is provided here that helps chart likely outcomes in future cases.
Nevertheless, what is being provided here – and what we have as a result of the mosaic provided by the various policy speeches from the President and his advisors, the White Paper, and this memo, is a significantly higher level of transparency than was the case at the onset of this conflict. That, at least, is significant progress.