Repairing the Framework

On its surface, Leiter’s statement seems unassailable; so far, not much criticism of the operation that killed Osama bin Laden – or even the strike that killed al-Awlaki, who was an American citizen – has made it into the mainstream. Both men were linked to deadly plots against Americans.

But many unanswered questions about the details of America’s new era of shadow warfare remain: How many of the 1,350 to 2,250 people killed by drones in Pakistan over the past three years posed an “imminent threat” to the United States? When does the Authorization of the Use of Military Force (AUMF), passed by Congress after 9/11 to give the president sole power to use “all necessary and appropriate force” to prevent attacks, expire? Is the targeted killing of American citizens constitutional, or was al-Awlaki denied due process? Would Americans have supported, say, the targeted killing of Timothy McVeigh, a terrorist directly responsible for the deaths of 168 people in 1995? If not, what are the distinctions between his case and al-Awlaki’s?

In debating and answering these questions in the dark, and essentially saying “trust us” to the American public and the world, the White House has, so far, come up short.

In debating and answering these questions in the dark, and essentially saying “trust us” to the American public and the world, the White House has, so far, come up short. Legal experts such as Chesney and American University law professor Kenneth Anderson, who generally consider the administration’s shadow warfare policies and procedures to be lawful, also consider their secrecy to be unsustainable – and perhaps, ultimately, indefensible. At the time of this writing, at least one lawsuit has been filed to compel the administration to explain itself, and more suits are sure to follow.

It may be time, after achieving such tactical supremacy, for the United States to firm up the legal, moral, and strategic footing on which these victories must ultimately be legitimized. Chesney, who in his covert action article focuses solely on the domestic legal architecture, proposes statutory changes to accommodate the convergence of the military and intelligence communities – a phenomenon that did not occur because of some grand conspiracy, but as a pragmatic solution to the tactical problems posed by a stateless enemy.

Some changes would be procedural, pinning down requirements for executive branch decision-making procedures, executive and legislative oversight, and information-sharing and notification requirements, while others would occur simply to clarify and define – for example, codifying how these relatively new, not-so-secret “Title 50” operations meet the requirements of international law on principles such as necessity, distinction, and proportionality.

Other necessary changes would not have to be statutory, but a matter of policy.

As Kenneth Anderson wrote on the Opinio Juris blog in August, “I am all in favor of drone strikes and targeted killing and special operations by both military and CIA teams; I am also convinced that the public acceptance and legitimacy of those operations will be undermined bit by bit unless successive American administrations make clear that ‘covert’ does not mean ‘standardless.’”

As Kenneth Anderson wrote on the Opinio Juris blog in August, “I am all in favor of drone strikes and targeted killing and special operations by both military and CIA teams; I am also convinced that the public acceptance and legitimacy of those operations will be undermined bit by bit unless successive American administrations make clear that ‘covert’ does not mean ‘standardless.’”

For Dehn at West Point, this is one of the most troubling issues about the evolving relationship between the CIA and the military. “As threats become smaller but more powerful, the secrecy, economy – of force and of necessary funds – and congressional pre-approval attending covert actions may cause the president to bypass Congress and the military in favor of covert actions in which CIA controls and JSOC participates,” he said. “Over the long term, will this result in increased executive power to independently authorize and conduct kinetic operations overseas without significant congressional and almost no public oversight? What are the implications of that, particularly in light of the CIA’s rather checkered history?”

Given these concerns, it may be, writes Anderson, that the Obama administration has shown some foresight in placing Panetta and Petraeus where they are today. “… crystallizing legitimacy is a long term process,” Anderson wrote. “Formalizing a set of standards applicable to special operations would be a good thing, but I would guess that only Petraeus, given his standing with the military and given his new intelligence position, is in a position to direct the attention and resources to do so.”

This article was first published in Defense: Review Edition 2011/2012.