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.