ARTICLE The CIA and Targeted Killings Beyond Borders ______________________ Philip Alston* Abstract This Article focuses on the accountability of the Central Intelligence Agency (CIA) in relation to targeted killings, under both United States law and international law. As the CIA, often in conjunction with Department of Defense (DOD) Special Operations forces, becomes more and more deeply involved in carrying out extraterritorial targeted killings both through kill/capture missions and drone-based missile strikes in a range of countries, the question of its compliance with the relevant legal standards becomes ever more urgent. Assertions by Obama administration officials, as well as by many scholars, that these operations comply with international standards are undermined by the total absence of any forms of credible transparency or verifiable accountability. The CIA’s internal control mechanisms, including its Inspector General, have had no discernible impact; executive control mechanisms have either not been activated at all or have ignored the issue; congressional oversight has given a “free pass” to the CIA in this area; judicial review has been effectively precluded; and external oversight has been reduced to media coverage that is all too often dependent on information leaked by the CIA itself. As a result, there is no meaningful domestic accountability for a burgeoning program of international killing. This in turn means that the United States cannot possibly satisfy its obligations under international law to ensure accountability for its use of lethal force, either under IHRL or IHL. The result is the steady undermining of the international rule of law and the setting of legal precedents which will inevitably come back to haunt the * John Norton Pomeroy Professor of Law, New York University School of Law. The author was UN Special Rapporteur on extrajudicial, summary or arbitrary executions from 2004 until 2010. I am deeply grateful to William Abresch, Nehal Bhuta, Gráinne de Búrca, Ryan Goodman, Sarah Knuckey and Neil Walker for very insightful comments on an earlier draft. Work on this Article was supported by a grant from the Max Greenberg and Filomen d’Agostino Research Funds at the NYU School of Law. Copyright © 2011 by the Presidents and Fellows of Harvard College and Philip Alston 2011 / The CIA and Targeted Killings Beyond Borders 284 United States before long when invoked by other states with highly problematic agendas. ________________________ “[U.S. Special Forces are] the most lethal hunter-killers . . . that any nation has to offer.” Admiral Eric T. Olson, head of U.S. Special Operations Command.1 “Although you might have concerns about what might potentially be going on, those potentials are not actually being realized and if you could see what was going on, you would be reassured just like everyone else.” Alexander Joel, head of the Civil Liberties and Privacy Office, Office of the Director of National Intelligence.2 I. Introduction Since 9/11, both the Central Intelligence Agency (“CIA”) and the United States Department of Defense (“DOD”) have rapidly expanded their covert operations around the world. Both are significantly engaged in extraterritorial targeted killings, neither operates with the degree of accountability officially envisaged under domestic law, and neither is in any meaningful way accountable for its actions in terms of the international legal obligations undertaken by the United States. The Commission created by Congress to examine the events of 9/11 and the response to them concluded in 2004 that the DOD should take “[l]ead responsibility for directing and executing paramilitary 1 Karen Parrish, SOCOM’s Impact Outweighs its Size, Commander Says, U.S. SPECIAL OPERATIONS COMMAND (Mar. 3, 2011), available at http://www.socom.mil/News/Pages/SOCOMimpactoutweighsitssize.aspx. 2 Quoted in Anne Marie Squeo, New U.S. Post Aims to Guard Public's Privacy, WALL ST J., (Apr. 20, 2006), http://online.wsj.com/public/article/SB114549771456130732- fNMKc3AWRNO7Kt58oXWNzzR_pms_20060519.html?mod=tff_main_tff_top. Although Mr. Joel was discussing the National Security Agency’s wiretapping program, his comments are entirely apposite to the position of the United States intelligence community in relation to the issues under discussion here. 285 Harvard National Security Journal / Vol. 2 operations, whether clandestine or covert” and recommended that responsibility and legal authority should be concentrated in one entity.3 The recommendation was premised in part on the need to ensure compliance with domestic law and to facilitate effective congressional oversight, which the Commission assumed would happen if the DOD were in charge. Instead, U.S. practice has moved dramatically in the opposite direction, with the CIA becoming ever more active in what the 9/11 Commission referred to as paramilitary activities and the DOD itself spawning an almost autonomous and at best minimally accountable force within its own ranks—the Joint Special Operations Command (“JSOC”). The combination of high levels of secrecy, combined with poor accountability, mean that it is impossible to verify the extent to which applicable international standards are respected in practice. Because these covert forces often operate as self-described killing machines,4 their existence and continuing rapid expansion have grave consequences for the twin regimes of international human rights law (“IHRL”) and international humanitarian law (“IHL”) which aim to uphold the value of human life and minimize the brutalities of warfare. The two principal targeted killing techniques are kill-or-capture raids and air strikes from unmanned aerial vehicles commonly known as drones. The individuals targeted are alleged terrorists or others deemed dangerous, and their inclusion on what are known as kill/capture lists is based on undisclosed intelligence applied against secret criteria. In Afghanistan alone it appears that there are at least six different kill/capture lists, with a total of thousands of names on them. While the CIA has been actively engaged in kill/capture missions since its arrival in Afghanistan in the days immediately after 9/11, it sometimes operates in conjunction with DOD Special Operations Forces under the command of JSOC, a body that also leads a determinedly twilight existence. Because the targeting operations and the kill/capture lists on which they are based are secret, the CIA will neither confirm nor deny their existence. 3 Officially known as the National Commission on Terrorist Attacks Upon the United States. THE 9/11 COMMISSION REPORT 415 (2004), available at http://www.9- 11commission.gov/report/911Report.pdf. 4 See comment of Admiral Olson, supra note 1; Greg Miller & Julie Tate, CIA Shifts Focus to Killing Targets, WASH. POST (Sept. 1, 2011), available at http://www.washingtonpost.com/world/national-security/cia-shifts-focus-to-killing- targets/2011/08/30/gIQA7MZGvJ_story.html (quoting a former senior U.S. intelligence official as saying that the CIA has been turned “into one hell of a killing machine”). 2011 / The CIA and Targeted Killings Beyond Borders 286 The CIA’s drone-based killing programs have so far killed well in excess of 2,000 persons in Pakistan, and it has been involved in such drone programs in at least four other countries. This number is likely to expand significantly in the years ahead as a result of a combination of factors, including the perceived effectiveness of drone killings, the relatively low costs involved, shrinking overall defense budgets, a diminishing appetite for traditional warfare, the very low risk to United States personnel, the rapidly growing sophistication of tracking, targeting, and delivery technologies, and major investments aimed at further accelerating technological breakthroughs. Seen against this background, the targeted killing of Osama bin Laden in May 2011 was not a dramatic departure from the United States’ established practice, but rather just another example of its increasingly frequent use of extraterritorial targeted killings as an integral part of its overall national security strategy. As the CIA Director observed at the time, the Special Forces that carried out the bin Laden raid—the United States Navy SEALS—“conduct these kinds of operations two and three times a night in Afghanistan.”5 The extent to which these different forms of targeted killings are, or could be, consistent with international human rights law and international humanitarian law has been a matter of extensive controversy in the policy and academic communities. Some have claimed that many or even most such targeted killings violate international law,6 while others have advocated approaches designed to provide legal legitimacy to the killings,7 5 PBS Newshour: CIA Chief Panetta: Obama Made 'Gutsy' Decision on Bin Laden Raid (PBS television broadcast May 3, 2011), available at http://www.pbs.org/newshour/bb/terrorism/jan-june11/panetta_05-03.html. A senior Defense Department official indicated that on the night of bin Laden’s killing, Special Forces in Afghanistan carried out 12 kill/capture missions which “captured or killed between fifteen and twenty targets.” Nicholas Schmidle, Getting bin Laden: What Happened that Night in Abbottabad, THE NEW YORKER, Aug. 8, 2011, 34, at 41. 6 Mary Ellen O‘Connell, Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004- 2009, in SHOOTING TO KILL: THE LAW GOVERNING LETHAL FORCE IN CONTEXT (Bronitt, ed.) (forthcoming), at http://ssrn.com/abstract=1501144. 7 In 2009, one of the CIA’s Assistant General Counsel, after reviewing a recently released 1973 internal CIA review of questionable programs which included a plot to assassinate Fidel Castro, concluded that an “argument could be made that the CIA needed to have the ability to take even drastic action to protect this country, including the targeted killing 287 Harvard National Security Journal / Vol. 2 or to expand the circumstances in which they may be carried out.8 Rather than revisiting most of those issues, the focus of this Article is on the hitherto largely neglected dimensions of transparency and accountability. While the analysis deals mostly with the CIA, it also raises significant questions in relation to the relevant DOD programs. In essence, the argument is that none of the many existing oversight mechanisms have been even minimally effective in relation to targeted killings, and that the resulting legal “grey hole” cannot be justified on national security grounds. A. Salience of the Issue The resurgence of these types of extraterritorial targeted killings is of particular salience for at least three reasons: (i) it represents a fundamental regression in the evolution of both international law and United States domestic law; (ii) it provides legitimacy to the increasingly vocal calls by some officials, commentators, and scholars who advocate that the United States should formally adopt a policy of extraterritorial targeted killings that would go well beyond what is currently permitted by international law; and (iii) it supports the notion that intelligence agencies can legitimately expand their activities from traditional intelligence gathering to killing and still enjoy the same de facto immunity from the constraints of international law. In terms of the first, attempts to legitimate targeted killings under international law represent a dramatic reversal of history. By the last decades of the twentieth century, the notion that an individual could legally be targeted and killed by one state on the territory of another in circumstances to which the law of armed conflict did not clearly apply had been thoroughly discredited. The relevant normative prohibitions, famously remarked upon by Thomas Jefferson in 1789,9 date back at least of threatening foreign leaders. As horrific as such an act might have been, it would have paled in comparison to the bloodshed that could have occurred to this country if, for example, Castro had launched a nuclear attack against the United States. . . . Merely having the option available, even if never utilized, might have served as a deterrent to the nation's enemies.” Daniel L. Pines, The Central Intelligence Agency's "Family Jewels": Legal Then? Legal Now?, 84 IND. L.J. 637, 688 (2009). 8 Kenneth Anderson, Predators over Pakistan, WEEKLY STANDARD, Mar. 8, 2010, 26, available at http://www.weeklystandard.com/articles/predators-over-pakistan. 9 Thomas Jefferson wrote to James Madison that “[A]ssassination, poison, [and] perjury” were all “legitimate principles in the dark ages . . . but exploded and held in just horror in 2011 / The CIA and Targeted Killings Beyond Borders 288 to the early seventeenth century.10 Of course, such things still happened in the late twentieth century, but they were not part of a declared policy; when they were exposed, the state concerned would go to considerable lengths to deny the allegations;11 and when the state was caught out there was rarely an attempt to provide a legal justification. Arguments revolved mainly around the facts.12 And when the international community has been able to credibly assign responsibility for such targeted killings it has condemned the practice.13 the 18th century.” Letter from Thomas Jefferson to James Madison (Aug. 28, 1789), in 15 THE PAPERS OF THOMAS JEFFERSON 367 (Julian P. Boyd ed., 1958). 10 Ward Thomas, The New Age of Assassination, 25 SAIS REV. 27, 29 (2005) (“whatever tactics anarchists and revolutionaries might adopt, civilized nations simply did not engage in [assassinations]. The norm was so powerful and long-lived that it shielded generations of international provocateurs, from Gustaphus Adolphus and Napoleon to Hitler and Saddam Hussein.”). 11 See, for example a description of various assassination projects undertaken by Israel, but never officially acknowledged as such. Ephraim Kahana, Israeli Intelligence: Organization, Failures, and Successes, in THE OXFORD HANDBOOK OF NATIONAL SECURITY INTELLIGENCE 818 (Loch K. Johnson ed., 2010) (describing various assassination projects undertaken by Israel, but never officially acknowledged as such). 12 To give but one of many examples, between 1976 and 1992, an elite unit of the British army, the Special Air Services (SAS) regiment killed 37 members of the Irish Republican Army in Northern Ireland. Amnesty International accused the government of pursuing an “official policy of planned killings of suspected members of armed opposition groups.” The government denied that any such policy existed, and when the facts seemed to tell a different story, set up various inquiries. These rarely provided any clarification, at least not for public consumption. See generally AMNESTY INTERNATIONAL, POLITICAL KILLINGS IN NORTHERN IRELAND 4 (1994); MARK URBAN, BIG BOYS’ RULES: THE SAS AND THE SECRET STRUGGLE AGAINST THE IRA 238 (1992). 13 See, e.g., Press Release, Council of the European Union, 738/04 (Presse 80) (Mar. 2004), available at http://www.consilium.europa.eu/App/NewsRoom/loadBook.aspx?target=2004&infotar get=&max=15&bid=78&lang=EN&id=1850 (condemning Israeli forces’ killing of Hamas leader Sheikh Ahmed Yassin and seven other Palestinians as “extrajudicial-killing”); U.N. SCOR, 59th Sess., 4945th mtg., U.N. Doc. S/PV.4945 (Apr. 19, 2004) (condemnation of Israeli killing of Hamas leader Al-Rantisi by Russia, Pakistan, United Kingdom, Germany and Spain); Brian Whittaker & Oliver Burkeman, Killing Probes the Frontiers of Robotics and Legality, GUARDIAN, Nov. 6, 2002 (quoting Swedish Foreign Minister on US targeting of al-Harithi in Yemen: “If the USA is behind this with Yemen’s consent, it is nevertheless a summary execution that violates human rights. If the USA has conducted the attack without Yemen’s permission it is even worse. Then it is a question of unauthorised use of force.”). 289 Harvard National Security Journal / Vol. 2 Targeted killings by the CIA also represent a significant regression in terms of United States law and policy. As noted below, a regime of prohibitions against arbitrary extraterritorial killings was painstakingly constructed during the 1970s in response to the CIA’s excesses in the 1950s and 1960s and the extensive use of large-scale programs during the Vietnam War. The steady loosening of constraints on extraterritorial killing, a process initiated by the CIA in the late 1990s without any public debate or congressional approval, risks making targeted killings an option for dealing with a growing range of perceived problems. Thus, from the perspective of both domestic and international law, the practice of secret killings conducted outside conventional combat settings, undertaken on an institutionalized and systematic basis, and with extremely limited if any verifiable external accountability, is a deeply disturbing and regressive one. These developments threaten to do irreparable harm to the international legal framework designed to establish and uphold foundational protections for the right to life and human dignity. The second reason why current developments are of particular concern is that they vindicate and encourage the arguments increasingly being put forward by scholars and officials both to defend the practice of targeted killings and to urge that it be accepted by law, either through the reinterpretation of existing norms or the adoption of new authorizations. Michael Gross, for example, has argued that assassination was long reviled but took on new life in the 21st century to wage war against militants entrenched among civilians. Initially condemned as extra-judicial execution (by this writer among others),14 targeted killing has emerged as an effective means to disable non-uniformed combatants while sparing civilians many of the horrors of full-scale battle.15 14 Gross refers here to a 2003 analysis in which he had argued that assassinations violated human rights law and also fell afoul of IHL’s proscription against perfidious and treacherous means of warfare. Michael L. Gross, Fighting by Other Means in the Mideast: A Critical Analysis of Israel’s Assassination Policy, 51 POLITICAL STUD. 350, 364–65 (2003). 15 Michael Gross, Response to “Notes on Asymmetric War”, CURRENT INTELLIGENCE (Feb. 2, 2011), available at http://www.currentintelligence.net/reviews/2011/2/15/notes-on- asymmetric-war.html. 2011 / The CIA and Targeted Killings Beyond Borders 290 In a recent book, Gross has argued that targeted killing is an essential tool for combating non-state actors, because they do not wear uniforms. He thus puts “militants, insurgents, guerillas, and terrorists” together in a group that can lawfully be targeted, provided only that they have been identified by intelligence operations and named on a list. He argues that such killings are actually necessary in order to restore a certain element of equilibrium in favor of the attacking military forces that are otherwise put at such a disadvantage in the context of an asymmetric war in which their opponents are ununiformed.16 Amos Guiora has described targeted killing as a legitimate and effective form of “active self-defense,”17 and Jason Fisher has predicted that “an international norm permitting the use of targeted killing as a counter- terrorism tactic is likely to emerge because targeted killing’s environmental fit, prominence and coherence favor such a development.”18 Kenneth Anderson is one step ahead of him and describes targeted killings as “a vital strategic, but also humanitarian, tool in long-term counterterrorism.”19 Other commentators have embraced the same logic, and have formulated permissive norms to make it easier for governments to kill, while also identifying precautions to ensure that the open season thus declared is not abused. Gabriella Blum and Philip Heymann have recently proposed in this Journal that If a terrorist plan is an act of war by the organization supporting it, any member of any such terrorist organization may be targeted anytime and anywhere plausibly considered “a battlefield,” without prior warning or attempt to capture.20 16 MICHAEL L. GROSS, MORAL DILEMMAS OF MODERN WAR: TORTURE, ASSASSINATION, AND BLACKMAIL IN AN AGE OF ASYMMETRIC CONFLICT 118–21 (2010). 17 Amos Guiora, Targeted Killing as Active Self-Defense, 36 CASE W. RES. J. INT’L L. 319, 334 (2004). 18 W. Jason Fisher, Targeted Killing, Norms, and International Law, 45 COLUM. J. TRANSNAT’L L 711, 717 (2007). 19 KENNETH ANDERSON, TARGETED KILLING IN US COUNTERTERRORISM STRATEGY AND LAW (2009), available at http://www.brookings.edu/papers/2009/0511_counterterrorism_anderson.aspx. 20 Gabriella Blum & Philip Heymann, Law and Policy of Targeted Killing, 1 HARV. NAT’L SECURITY J. 145, 168 (2010). In defense of the proposition they note that “[p]ublicly acknowledged targeted killings are furthermore an effective way of appeasing domestic audiences, who expect the government ‘to do something’ when they are attacked by 291 Harvard National Security Journal / Vol. 2 Anne-Marie Slaughter has also proposed that the UN Security Council should introduce a system of “mercy killings” leading it to authorize the targeted killing of a head of state whose actions it had condemned as criminal. Writing in 2003 about Saddam Hussein, but in support of a more broadly applicable policy, she proposed that as “an absolute last resort,” the Council “should have authorized the use of deadly force in the efforts to capture him—either by his own people or by the agents of foreign governments.”21 By 2011, she had refined her proposal so that United Nations authorization would follow only after an indictment by the International Criminal Court. Even then, the order would be to seek to capture first, and only to kill if the person resists arrest.22 Similar proposals have also been put forward by others. A former CIA assistant general counsel has argued that killing leaders of regimes with which the US is involved in an armed conflict may “however regrettable, . . . be an appropriate policy option.”23 In making such decisions, United States policymakers (there would be no international authorization needed) would take account of certain criteria. For example, as far as possible, only those “persons within the regime that are responsible for the threats” should be killed.24 A potentially even broader proposal, again justified on utilitarian grounds, has been put forward by two philosophers who call for consideration to be given to the establishment of an international institution with the mandate of authorizing “the targeted killing of corrupt leaders.”25 terrorists. The visibility and open aggression of the operation delivers a clearer message of ‘cracking down on terrorism’ than covert or preventive measures that do not yield immediate demonstrable results.” Id. at 167. 21Anne-Marie Slaughter, Mercy Killings: The United Nations can and should target dictators directly, instead of their peoples, FOR. POL’Y, May/June 2003, 72. Philosophers have also developed a comparable proposal, albeit without reference to Slaughter’s work. 22 The UN Should Issue Death Warrants Against Dangerous Dictators, CNN WORLD, GLOBAL PUBLIC SQUARE (May 13, 2011), available at http://globalpublicsquare.blogs.cnn.com/2011/05/13/the-un-should-issue-death- warrants-against-dangerous-dictators/. 23 Catherine Lotrionte, When to Target Leaders, 26 THE WASH. Q. 73, 84 (2003). 24 Id. 25 See Andrew Altman & Christopher Heath Wellman, From Humanitarian Intervention to Assassination: Human Rights and Political Violence, 118 ETHICS 228, 253, 257 (2008) (arguing that the assassination of a political leader is morally permissible if (i) “the target had rendered himself morally liable to being killed” and (ii) “the risk to human rights is not disproportionate to the rights violations that one can reasonably expect to avert.”). 2011 / The CIA and Targeted Killings Beyond Borders 292 While the United States government has not actually endorsed any of these specific proposals, it hardly needs to, because in practice it is already carrying out targeted killings with growing frequency in various countries, both in situations of armed conflict and in other settings. It is for this reason that it becomes especially important to shine a clear light on what is already taking place and on the extent to which it is occurring within the framework of comprehensive transparency and accountability deficits. The third reason for concern is that the emergence of a major CIA- run program of targeted killings is premised on the unacceptable assumption that intelligence agencies can legitimately move from traditional intelligence gathering to killing without even a nod towards the notions of transparency and accountability that would automatically be assumed to apply to any other government agency engaged in such practices. This assumption that the de facto immunity from the constraints of international law that apply in relation to espionage can be transferred to killings augurs very badly in terms of aspirations for an international community governed even minimally by the rule of law. Yet, as argued below, the United States has intentionally sought to reinforce the immunity of its intelligence operatives through a policy known as “double-hatting” in which the distinction between military and covert action, and thus the distinct identities of personnel operating under the auspices of the military and the CIA, have been deliberately blurred. As a result, the United States is setting deeply troubling precedents which will redound to its detriment when invoked by other states seeking justifications for their own efforts to flout international legal prohibitions on arbitrary executions. B. Structure of the Article The Article starts by exploring the international legal obligations relating to targeted killings and argues in Part II that they require a significant degree of transparency, without which there can be little if any of the accountability required by international law. Part III documents the practice of the United States in this area. Part IV turns to an examination of CIA’s transparency in relation to targeted killings. In essence, the agency “declines to provide any information to the public about where it operates,