Clip the Agency's Wings

Why Obama needs to take the drones away from the CIA.

Among the 9/11 Commission's 41 recommendations was that "lead responsibility for directing and executing paramilitary operations, whether clandestine or covert, should shift to the Defense Department" to avoid the "creation of redundant, overlapping capabilities and authorities in such sensitive work." President Bush directed Secretary of Defense Donald Rumsfeld and Director of Central Intelligence Porter Goss to review "to what extent implementation of the recommendation is in the interest of the United States." Goss -- himself a CIA operative in the 1960s -- told the Senate Select Committee on Intelligence: "[Rumsfeld] feels that he has capabilities that are important, and I agree. And I feel I have capabilities that are important, and he agrees. There's not a lot of disagreement on this."

Rumsfeld and Goss apparently did agree; their formal response to Bush reportedly stated: "Neither CIA nor (Defense Department) endorses the commission's recommendation on shifting the paramilitary mission or operations. We do not believe change is required in the responsibility of the CIA for foreign intelligence collection and covert action or activities, or that of the DOD for traditional military activities." An anonymous CIA official claimed that Goss "was concentrating on protecting the diminished role of the agency" from the Pentagon's expansion of paramilitary authorities and resources. Former intelligence officials also contend that as the CIA's responsibilities remained uncertain during the intelligence community's reorganizations of 2004 and 2005, Goss wanted to retain the authority for lethal operations, albeit in rare circumstances -- at the time, the CIA had conducted only three drone strikes.

Implementing the 9/11 Commission recommendation has been proposed repeatedly over the last nine years, but neither the Bush nor Obama administrations seriously considered it. Subsequently, the lead executive authority for targeted killings became divided between the CIA and Joint Special Operations Command (JSOC) -- a subunified command of Special Operations Command. Since 9/11, with a few exceptions, non-battlefield targeted killings have been carried out in Pakistan by the CIA, in Somalia by JSOC, and in Yemen by both. (The CIA also conducted one drone strike in the Philippines in 2006.) Of the approximately 420 targeted killing attempts, the lead executive authority for over 90 percent has been the CIA.

Last month, Daniel Klaidman reported that three senior officials had told him that President Obama would gradually transfer targeted killings to the Pentagon during his second term. Other journalists report that this is not a certainty or that "it would most likely leave drone operations in Pakistan under the CIA," making any transition meaningless since over 80 percent of all U.S. targeted killings have occurred in Pakistan. But if Obama is serious about reforming targeted killing policies, as he has stated, then he needs to sign an executive order transferring lead executive authority for non-battlefield targeted killings from the CIA to the Defense Department. Doing this has three significant benefits for U.S. foreign policy.

First, it would increase the transparency of targeted killings, including what methods are used to prevent civilian harm. Strikes by the CIA are classified as Title 50 "covert action," which under law are "activities of the United States Government...where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include traditional...military activities." CIA operations purportedly allow for deniability about the U.S. role, though this rationale no longer applies to the highly-publicized drone campaign in Pakistan, which Obama personally acknowledged in January 2012. Beyond adjectives in public speeches ("methodical," "deliberate," "not willy-nilly"), the government does not, and cannot, describe the procedures and rules for CIA targeted killings.

JSOC operations in Somalia and Yemen, on the other hand, fall under the Title 10 "armed forces" section of U.S. law, which the White House reports as "direct action" to Congress. The United States has also acknowledged clandestine military operations to the United Nations "against al-Qaida terrorist targets in Somalia in response to on-going threats to the United States." Moreover, JSOC operations are guided by military doctrine, available to the public in Joint Publication 3-60 (JP 3-60): Joint Targeting. (While the complete 2007 edition can be found online, only the executive summary of the most-recent version, released on January 31, is available. If the Joint Staff's J-7 Directorate for Joint Force Development posted this updated edition in its entirety -- or fulfilled my FOIA request [case number 13-F-0514] -- that would be appreciated.) JP 3-60 matters because it details each step in the targeting cycle, including the fundamentals, processes, responsibilities, legal considerations, and methods to reduce civilian casualties. This degree of transparency is impossible for CIA covert actions.

Second, it would focus the finite resources and bandwidth of the CIA on its primary responsibilities of intelligence collection, analysis, and early warning. Last year, the President's Intelligence Advisory Board -- a semi-independent executive branch body, the findings of which rarely leak -- reportedly told Obama that "U.S. spy agencies were paying inadequate attention to China, the Middle East and other national security flash points because they had become too focused on military operations and drone strikes." This is not a new charge, since every few years an independent group or congressional report determines that "the CIA has been ignoring its core mission activities." But, as Mark Mazzetti shows in his indispensable CIA history, the agency has evolved from an organization once deeply divided at senior levels about using armed drones, to one that is a fully functioning paramilitary army. As former senior CIA official Ross Newland warns, the agency's armed drones program "ends up hurting the CIA. This just is not an intelligence mission."

There is no longer any justification for the CIA to have its own redundant fleet of 30 to 35 armed drones. During White House debates of CIA requests in 2009, Gen. James Cartwright, the vice chairman of the Joint Chiefs of Staff, repeatedly asked: "Can you tell me why we are building a second Air Force?" Obama eventually granted every single request made by then-Director of Central Intelligence Leon Panetta, adding: "The CIA gets what it wants." With this year's proposed National Intelligence Program budget scheduled to fall by 8 percent, an open checkbook for Langley is not sustainable or strategically wise.

Third, it would provide clear and unified congressional oversight. CIA drone strikes are reported to the congressional intelligence committees. Sen. Dianne Feinstein confirmed that the Senate's intelligence committee, which she chairs, receives post-strike notifications, reviews video footage, and holds monthly meetings to "question every aspect of the program." Rep. Mike Rogers, chair of the House Permanent Select Committee on Intelligence, has claimed repeatedly that he reviews every single counterterrorism airstrike, whether conducted by the CIA or JSOC. This raised eyebrows among some congressional and Pentagon staffers, since while the House committee can statutorily exercise oversight of tactical military activities, its authority does not extend JSOC operations. Either oversight is duplicated among the various committees, or there remains a misunderstanding over who is mandated to oversee which operations.

Meanwhile, as required by law since March 2012, all JSOC counterterrorism operations -- including a "global update on activity within each geographic combatant command" -- have been reported at a minimum every three months to the congressional armed services committees. Although the chairs of those committees have not publicly described their roles, their oversight of JSOC operations has been routine and robust. Administration officials aware of how both entities report their activities to their respective committees, say that JSOC makes available a broader range of information than the CIA.

Some policymakers question if consolidating targeted killings within the Pentagon will make any substantive difference. Feinstein recently expressed her skepticism:

We watch the intelligence aspect of the drone program...literally dozens of inspections. Following the intelligence, watching the Agency exercise patience and discretion, specifically to prevent collateral damage. The military program has not done that nearly as well. I think that's fact. I think we even hit our own base once. So, I would have to really be convinced that the military would carry it out that way.

It is unclear what incident that Feinstein is referring to. In 2011, a military-controlled Predator drone accidentally killed two U.S. servicemembers in Afghanistan in a friendly-fire incident unrelated to the weapons platform. Furthermore, if there is a database that compares the procedures and results of CIA and Pentagon drone strikes, a declassified version should be made public.

Groups like Human Rights Watch and the Center for Civilians in Conflict also correctly warn that JSOC is itself a highly-secretive organization and that CIA and military teams operate jointly in pursuit of the same individual. For example, while a CIA drone killed Anwar al-Awlaki in September 2011, military aircraft stationed on nearby carriers would have been deployed if the agency drones failed. It is unrealistic to fully disentangle the CIA and the Pentagon, as military operations routinely receive targeting information from elements within the Intelligence Community. The military, however, can be much more transparent than the CIA, if the president and secretary of defense make this a priority. (Unfortunately, not one senator asked Hagel his opinion of drone strikes during his confirmation hearing.) Military officers, even from the special operations community, are far more candid and honest about the benefits and limits of targeted killings than civilian intelligence officials.

The Obama administration has two central objectives for its promised targeted killings reforms: preventing constraints on its ability to conduct lethal operations, and setting precedents for the use of armed drones by other states. By law, institutional culture, and customary practice, drone strikes conducted by the CIA cannot reach even the minimum thresholds of transparency and accountability required to achieve either objective. Thus, if President Obama is serious about these reforms, he should implement the 9/11 Commission's unfulfilled recommendation and make the military responsible for America's drone campaigns.

Mark Wilson/Getty Images

National Security

An Inconvenient Truth

Finally, proof that the United States has lied in the drone wars.

It turns out that the Obama administration has not been honest about who the CIA has been targeting with drones in Pakistan. Jonathan Landay, national security reporter at McClatchy Newspapers, has provided the first analysis of drone-strike victims that is based upon internal, top-secret U.S. intelligence reports. It is the most important reporting on U.S. drone strikes to date because Landay, using U.S. government assessments, plainly demonstrates that the claim repeatedly made by President Obama and his senior aides -- that targeted killings are limited only to officials, members, and affiliates of al Qaeda who pose an imminent threat of attack on the U.S. homeland -- is false.

Senior officials and agencies have emphasized this point over and over because it is essential to the legal foundations on which the strikes are ultimately based: the 2001 Authorization to Use Military Force and the U.N. Charter's right to self-defense. A Department of Justice white paper said that the United States can target a "senior operational leader of al-Qa'ida or an associated force" who "poses an imminent threat of violent attack against the United States." Attorney General Eric Holder said the administration targets "specific senior operational leaders of al-Qaeda and associated forces," and Harold Koh, the senior State Department legal adviser dubbed them "high-level al-Qaeda leaders who are planning attacks." Obama said during a Google+ Hangout in January 2012: "These strikes have been in the FATA [Federally Administered Tribal Areas] and going after al-Qaeda suspects." Finally, Obama claimed in September: "Our goal has been to focus on al Qaeda and to focus narrowly on those who would pose an imminent threat to the United States of America."

As the Obama administration unveils its promised and overdue targeted-killing reforms over the next few months, citizens, policymakers, and the media should keep in mind this disconnect between who the United States claimed it was killing and who it was actually killing.

Landay's reporting primarily covers the most intensive period of CIA drone strikes, from September 2010 to September 2011. "[T]he documents reveal estimates of deaths and injuries; locations of militant bases and compounds; the identities of some of those targeted or killed; the movements of targets from village to village or compound to compound; and, to a limited degree, the rationale for unleashing missiles," he writes.

While he provides few direct quotes from the documents, his most important finding is this:

At least 265 of up to 482 people who the U.S. intelligence reports estimated the CIA killed during a 12-month period ending in September 2011 were not senior al Qaida leaders but instead were "assessed" as Afghan, Pakistani and unknown extremists. Drones killed only six top al Qaida leaders in those months, according to news media accounts.

Forty-three of 95 drone strikes reviewed for that period hit groups other than al Qaida, including the Haqqani network, several Pakistani Taliban factions and the unidentified individuals described only as "foreign fighters" and "other militants."...

At other times, the CIA killed people who only were suspected, associated with, or who probably belonged to militant groups.

This scope of targeting complicates the Obama administration's claim that only those al Qaeda members who are an imminent threat to the U.S. homeland can be killed. In reality, starting in the summer of 2008, when President Bush first authorized signature strikes in Pakistan, the vast majority of drone-strike victims were from groups focused on establishing some form of Sharia law, attacking Pakistani security forces, and destabilizing Afghanistan by supporting the Taliban and attacking U.S. servicemembers. The United States essentially replicated the Vietnam War strategy of bombing the Vietcong's safe haven in Cambodia. In addition, the CIA was engaging in "side payment strikes" against the Pakistani Taliban to eliminate threats on Islamabad's behalf. This was not a secret to anyone following the CIA's drone program. As I wrote as early as March 2009:

The covert program that began as an effort to kill high-value al-Qaeda and Taliban officials responsible for previous international terror attacks (and who continue to provide strategic guidance to the global jihadist movement) has since led to the CIA's serving, in effect, as a counterinsurgency arm of the Pakistani air force.

Landay also writes that "the reports estimated there was a single civilian casualty, an individual killed in an April 22, 2011, strike in North Waziristan." This should finally demolish John Brennan's claim in June 2011 that "For the past year there hasn't been a single collateral death because of the exceptional proficiency, precision of the capabilities that we've been able to develop." As I noted previously, either Brennan did not receive the information in these top-secret documents (an implausible notion given his central role in managing the targeted killings program), or he was being dishonest.

It is important to note that the claim of a single civilian casualty is based on the CIA's interpretation that any military-age males who are behaving suspiciously can be lawfully targeted. No U.S. government official has ever openly acknowledged the practice of such "signature strikes" because it is so clearly at odds with the bedrock principle of distinction required for using force within the laws of armed conflict. According to the documents reviewed by Landay, even the U.S. intelligence community does not necessarily know who it has killed; it is forced to use fuzzy categories like "other militants" and "foreign fighters."

Some of the drone strikes that Landay describes, such as a May 22, 2007 attack requested by Pakistan's intelligence service to support Pakistani troops in combat, do not appear in the databases maintained by the New America Foundation, the Bureau of Investigative Journalism, or Long Wars Journal. This should strengthen the concerns of many analysts about the accuracy of reporting from Pakistan's tribal areas. It also suggests that there may be a few additional targeted killing efforts of which we know nothing.

This lack of understanding further reinforces the need for a comprehensive official history of U.S. targeted killings in non-battlefield settings, comparable in scope and transparency to the government reports about other controversial counterterrorism policies. Some policymakers will question why we should care about what the United States was doing two years ago, which in Washington is considered ancient and irrelevant. Yet, for all of the historical accounts and professed concerns over the CIA's detention and extraordinary rendition program, which involved "136 known victims," it is time for an accounting of the CIA's drone strikes, which have killed between 3,000 and 4,000 people in Pakistan and Yemen.

Finally, based on the Obama administration's patterns of behavior, the Department of Justice will assuredly target Landay and his sources for leaking classified information. While the DOJ has refrained from plugging the many selective leaks by anonymous administration officials that praise the precision and efficacy of drone strikes, it has sought more criminal prosecutions of leaks in Obama's first term than during all previous presidential administrations combined. Like almost everything else we know about targeted killings, these latest revelations come from an investigative journalist who served the public interest by reporting new information on a highly controversial policy -- a policy that the government absurdly insists remain secret. Absolutely nothing in Landay's reporting reveals the CIA's sources and methods for determining who had been killed.

The hypocrisy behind U.S. targeted killings has long been apparent to casual news readers, and it is now confirmed by internal intelligence documents. The Obama administration has a fundamental choice to make if it is serious about reforming its targeted-killing program: Either target who officials claim they are targeting, or change their justifications to match the actual practice. If they are unable or unwilling to do this, then other White House efforts toward drone-strike reform or transparency will be met with skepticism.

U.S. Air Force