Why Shifting Drone Strikes from the CIA to the DoD is a Good Idea

Written by Ellen Policinski*

          The use of drones as a tool to carry out targeted killing operations raises a number of concerns about the legality of the administration’s targeting policies (for details on targeted killing operations generally, see my previous blog post here).  One aspect of drone strikes not previously addressed is the involvement of non-military personnel, particularly the Central Intelligence Agency (CIA).  Although the US currently has the most extensive drone program in the world, at least 59 other countries are known to possess some form of unmanned aerial vehicles and the involvement of non-military personnel in conducting US drone strikes may set a dangerous precedent for the future. 

          Although very little about the CIA drone program has been officially acknowledged due to the covert nature of the operations, it has been asserted that the CIA has conducted drone operations in Northwest Pakistan, Yemen and Somalia.[1] Recently, Attorney General Eric Holder acknowledged in a letter to Congress that four US citizens have been killed in drone strikes since 2009, although only alleged al-Qaeda affiliate Anwar al-Awlaki was deliberately targeted.[2]  It is thought that the drone that killed al-Awlaki was controlled by the CIA.[3]

          From publicly available documents and news reports, it appears that until now there have been two parallel drone programs: one run through the CIA and another run through the Department of Defense (DoD).[4]  For a few months there have been reports discussing the potential shift of drone operations out of CIA control and to DoD in light of new classified policy guidance reported to do just that.[5]  The proposed shift would eventually put command and control over all drone operations in the hands of the military. 

          This move could change the status of CIA personnel involved in carrying out targeted killings abroad.[6]  In wartime, international humanitarian law provides certain protections for the military that do not apply to civilians, such as POW status and immunity for prosecution for taking part in the fighting.  It also protects civilians from attack so long as they do not actively fight in the conflict.  Where military operations are run by non-military personnel, these protections are no longer applicable.  Even more frightening than CIA personnel themselves loosing immunity from attack, to the extent that targeted killing operations are based from within the United States, Americans could be at risk of attack if they live or work near places where drone operations are based.

          CIA agents who participate in targeted killing operations in the context of armed conflict raise important questions under IHL.  Given that lethal drone strikes are unmistakably military operations, the CIA personnel involved may fall under one of two categories: combatants or civilians who are directly participating in hostilities. 

 The CIA as Combatants

          The advantage of being considered privileged combatants is that these personnel would be entitled to immunity from prosecution for acts that under normal circumstances would be considered crimes.[7]  Without this privilege targeted killing would be subject to applicable criminal law regimes, for example the foreign murder statute in the U.S. or even the criminal laws of the country where the killing takes place.[8]

          Even if the CIA is not officially part of the U.S. armed forces, its personnel may still be considered combatants if they meet four criteria: 1) They are commanded by a person who is responsible for his or her subordinates; 2) They wear a fixed distinctive sign, like a uniform, that is recognizable at a distance; 3) They carry their weapons openly; and 4) they respect IHL.[9]  CIA operations are covert and are conducted far from the battlefield.  It is therefore unlikely that they would be considered combatants without formally being incorporated into the armed forces.

 The CIA as Civilians

          Alternately, CIA personnel may be civilians directly participating in hostilities.[10]  This is an important distinction because, unlike soldiers, who may legally be the target of attacks simply because they are combatants, civilians are protected from direct attack unless they actively take part in the fighting. [11]  Therefore, if CIA personnel are conducting a military operation, they would be legitimate targets while preparing or carrying out that operation.

          What constitutes “[d]irect participation in hostilities” making a civilian targetable is not clearly defined in international law.  Because of this, the International Committee of the Red Cross (ICRC) has developed the Interpretive Guidance on the Notion of Direct Participation in Hostilities to clarify the issue.[12]  According to the ICRC Interpretive Guidance, there are three conditions which must all be met for conduct to be considered direct participation in hostilities: 1) the harm caused by an action must meet a certain threshold; 2) the act must directly cause harm to the enemy forces; and 3) the action must have been done with the intent to harm the enemy (otherwise known as the “belligerent nexus” criteria).[13]  If CIA personnel participating in drone strikes meet these three criteria, they are directly participating in hostilities and lose immunity from being intentionally attacked and killed.

          There are two ways to meet the threshold of harm criteria.  The first is by performing an act that is likely to adversely affect the military operations or military capacity of either side of the armed conflict.[14]  The second way to meet the threshold of harm criteria is to harm persons or objects protected from direct attack, such as civilians, medical personnel, or hospitals.[15]  Drone strikes are designed to eliminate enemy forces and undermine the military capacity of the enemy. Accordingly, CIA drone strikes likely meet this criterion. 

          The direct causation threshold makes a distinction between “direct” and “indirect” participation in hostilities.[16]  Indirect participation is more like part of the general war effort or a war-sustaining activity than fighting associated with the conflict.[17]  This could be growing a victory garden or sending care packages to troops stationed abroad.  The line between direct and indirect participation is not always clear and depends on the specific facts of each situation. 

          The ICRC Interpretive Guidance specifically mentions drone operations with respect to the complexity of determining causation, saying that while many of the persons involved in executing a drone strike “are integral to that operation and directly participate in hostilities, only few of them carry out activities that, in isolation, could be said to directly cause the required threshold of harm.  The standard of direct causation must therefore be interpreted to include conduct that causes harm only in conjunction with other acts.”[18]  In other words, all persons involved in a drone operation are actively engaged in the fighting, even if they are not the person who actually “pulls the trigger” to fire the missile used.

          In order to meet the belligerent nexus criteria, the underlying act must be connected to the conflict.  According to this test the act must be done with the intent to support one side conflict over the other.[19]  This is clearly the case where a drone strike is intended to eliminate enemy forces.  In light of these criteria it is quite likely that CIA personnel who take part in drone operations are directly participating in hostilities.

          The difference between being considered a combatant and being considered a civilian is that civilians who actively take part in hostilities can be prosecuted for murder, whereas combatants can only be prosecuted if the attack violated IHL. CIA personnel are therefore themselves placed in a vulnerable position when they are asked to conduct drone operations.

          Whether CIA personnel are considered combatants or civilians directly participating in hostilities, they are legitimate targets for the enemy to attack under IHL.   This is disturbing in light of the fact that drone operations can be conducted from anywhere in the world, far from the traditional zone of hostilities, possibly even based in civilian communities inside United States territory.  Should these facilities be attacked, American civilians would be at risk.  

 


* Ellen Policinski is a legal fellow with the International Humanitarian Law Dissemination unit at American Red Cross National Headquarters.  She holds a J.D. from Villanova Law School in Villanova, Pennsylvania and an LL.M. from the Geneva Academy of International Humanitarian Law and Human Rights in Geneva, Switzerland.

[1] See Richard W. Murphy and Afsheen John Radsan, “Measure Twice, Shoot Once: Higher Care for CIA Targeting,” William Mitchell Legal Studies Research Paper No. 2010-14, Texas Tech Law School Research Paper No. 2010-25, 2 (16 June 2010); Peter Baker, “Obama’s War Over Terror,” (NY Times, 10 Jan.2010); Ryan Vogel, “Drone Warfare and the Law of Armed Conflict,” 39 Denv. J. Int’l. L. & Pol’y. 101.

[2] Karen DeYoung and Peter Finn, “U.S. Acknowledges Killing of Four U.S. Citizens in Counterterrorism Operations,” (Washington Post, 22 May, 2013). Available at: http://www.washingtonpost.com/world/national-security/us-acknowledges-killing-of-four-us-citizens-in-counterterrorism-operations/2013/05/22/7a21cf84-c31d-11e2-8c3b-0b5e9247e8ca_story.html on.

[3] Scott Neuman, “CIA Drone Operations Could be Handed to Pentagon,” (NPR, 21 Mar. 2013). Available at: http://www.npr.org/blogs/thetwo-way/2013/03/21/174925726/cia-drone-operations-could-be-handed-to-pentagon.

[4] Daniel Klaidman, “Exclusive: No more Drones for CIA” (The Daily Beast, 19 Mar. 2013). Available at: http://www.thedailybeast.com/articles/2013/03/19/exclusive-no-more-drones-for-cia.html.

[5] Peter Baker, “Pivoting from a War Footing, Obama Acts to Curtail Drones,” (New York Times, May 23, 2013).  Available at: http://www.nytimes.com/2013/05/24/us/politics/pivoting-from-a-war-footing-obama-acts-to-curtail-drones.html?pagewanted=all.

[6] For a discussion of the affect of this move under U.S. law, see the March 20, 2013 Lawfare post by Jack Goldsmith, “No More Drones for CIA.”  To read about a recent legal blow to the secrecy of the CIA drone program, see this March 15, 2013 article on the ACLU website: DC Appellate Court Rejects CIA’s Secrecy Claims in ACLU’s Targeted Killing FOIA Lawsuit or this Reuters article: CIA Must Respond to Request about Secret Drone Program.

[7] ICRC Interpretive Guidance, Part II(C)(X)(1) and Part II (X); Robert Barnidge, “A Defense of Drone Attacks in Pakistan Under Humanitarian Law.”

[8] 18 USC 1119.  For a detailed discussion of this, see the March 10, 2013 post by Kevin Jon Heller, Why the ‘Public Authority’ Defense Doesn’t Work for the CIA on Opinio Juris.

[9] GC III Art. 4(1), (2).

[10] AP I Art. 50, In armed conflict, civilians are generally understood to be all the people who are not combatants .  For instance, AP I, Art. 50 defines civilians as: “Any person who does not belong to one of the categories of persons referred to in Article 4 A 1), 2), 3) and 6) of the Third Convention and in Article 43 of this Protocol.

[11] GC IV Art. 27; AP I Art. 51(3); AP II Art. 13(3). IHL neither prohibits nor authorizes civilian participation in hostilities, but civilians lose their protection from attack if “and for such time as they take a direct part in hostilities.” Attacks conducted by civilians which otherwise comply with IHL are therefore not war crimes, but regular crimes for which those civilians may be criminally tried.  GC IV Art. 27; AP I Art. 51(3); AP II Art. 13(3);  Human Rights Institute, Columbia Law School, Background Note for the American Society of International Law Annual Meeting, “Targeting Operations with Drone Technology: Humanitarian Law Implications” (March 25, 2011) p. 27; Nils Meltzer, ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, Part II(B)(X); Robert Barnidge, “A Defense of Drone Attacks in Pakistan Under Humanitarian Law” originally in Boston University International Law Journal, reproduced by the Foundation for Defense of Democracies here.

[12] The ICRC Interpretive Guidance is available in its entirety here.

[13] Id., Part I(V)

[14] Id., Part II(B)(V)(1)(a)

[15] Id., Part II(B)(V)(1)(b)

[16] Id., Part II(B)(V)(2)(a)

[17] Id., Part II(B)(V)(2)(a). How much of a contribution to the military capacity of a party to the conflict a person must make in order for something to be considered direct rather than indirect participation in hostilities depends on there being a close causal relationship between the conduct and the harm that occurs.  Id., Part II(B)(V)(2)(b); Sandoz commentary to AP I at Section/Para. 4787 “The term ‘direct participation in hostilities’… implies that there is a sufficient causal relationship between the act of participation and its immediate cons

[18] Id., Part II(B)(V)(2)(c).

[19] Id., Part II(B)(V)(3)(a); AP I Art. 50.

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