Photo by Bobbi Zapka/U.S. Air Force
By Damian Mencini |
Drone strikes are sensational events. As such, scholars, pundits, and government officials have exhausted reams of paper and hours of airtime arguing whether they are legal, ethical, or effective. Few commentators, however, have expanded the spectrum of study to include an analysis of the years before 9/11. This paper argues that the history of targeted lethal operations prior to September 11, 2001 can inform modern policy.
In order to study the history of targeted strikes, the first task must be to widen the definition to one that moves beyond Unmanned Aerial Vehicles (UAVs) and precision missile systems, first employed by the U.S. military and Central Intelligence Agency in 2001.[1] The use of remotely piloted aircraft in fact dates back to the Vietnam War.[2] There are two types of operations employed in drone strikes: targeted killings and signature strikes. Both types of operations have histories that predate September 11, 2001. Signature strikes are targeted operations based on an individual’s patterns of behavior, or “signature,” rather than his or her individual identity. Targeted killings, by contrast, occur when decision-makers intentionally identify, track, and kill an individual. Importantly, targeted killings are not “assassinations.” Commenting on the distinction, Attorney General Eric Holder said, “Some have called operations ‘assassinations.’ They are not, and the use of the loaded term is misplaced. Assassinations are unlawful killings.”[3] The primary distinction between targeted killing and assassination operations is that the latter is not considered grounded in law.
In order to argue that the history of targeted killings and signature strikes can inform modern policy, this paper includes three sections. The first section summarizes the precedents for both types of operations in an effort to establish a historical foundation. This foundation is used to analyze specific historical trends. The paper concludes with three policy recommendations extracted from the past yet crafted for the future.
Historical Precedents
The United States government has long debated whether to kill its enemies. Targeted killings are legal operations by a state or its agents that intentionally and deliberately kill individuals. Governments target an individual, fix his or her location, and then kill him or her.[4] The operation against Admiral Isoroku Yamamoto, the architect of the attack on Pearl Harbor and admiral of the Japanese Fleet, in 1943 is a clear example that American policymakers consistently cite to justify modern operations.[5] American aviators gunned down Yamamoto on April 18, 1943 after American intelligence cryptologists deciphered a Japanese message identifying the admiral’s flight itinerary.
In the early decades of the Cold War, the CIA plotted to assassinate various foreign leaders. The Church Committee, a Senate Select Committee convened to study government intelligence operations chaired by Senator Frank Church, revealed these assassination plots in 1975. The public reaction was overwhelmingly negative. While the CIA never succeeded in assassinating enemy leaders, public outcry in the wake of the Church Committee revelations left a significant scar on the CIA and its officers. Moreover, the Church Committee findings led to three executive orders banning assassination as a foreign policy tool.
In the aftermath of the Church Committee findings, subsequent administrations were reluctant to engage in targeted killing operations out of a fear the public would misconstrue them as assassinations. In 1986, the Reagan administration authorized an airstrike against terrorist facilities in Libya. One of the facilities was the command-and-control center and home of Libyan leader Muammar Qaddafi. Although targeted killings literature cites the air strike against Libya as a case, it is not an operational precedent for targeted killing.[6] The United States intelligence community knew that Qaddafi moved locations multiple times each night to avoid internal coup attempts; therefore, the U.S. military did not equip the aircraft with ordnance powerful enough to destroy the bunker at Qaddafi’s command center.[7] While the Libyan strikes were not an operational precedent for targeted killings, President Reagan invoked a legal justification that the Obama administration uses to justify its drone strikes today: the right to self-defense as stipulated by the United Nations Charter Article 51.[8]
Later, the Clinton administration authorized a cruise missile salvo on a compound where Osama bin Laden was thought to be located in August 1998. The operation was unsuccessful, but is another example of an attempted targeted killing because bin Laden was specifically identified as a target, then located before the strike was carried out. The failure to kill Bin Laden in 1998 and 1999 also led to the development of the armed Predator drone, which became the weapon of choice for the Bush and Obama administrations’ targeted killing operations.
Signature strikes are preemptive operations in which operators target individuals based on certain characteristics associated with enemy leaders or militant organizations. Characteristics associated with militants’ movements include the handling of explosives, travel toward armed conflict, and training in al Qaeda compounds.[9] Unlike targeted killings, signature strikes do not target high-value commanders with known identities; rather, operators eliminate low-level fighters. Target devolution—the shift from targeting high-value leaders to low-level combatants—and preemptive operations are hallmarks of signature strikes.
The Phoenix Program conducted during the Vietnam War was an intelligence exploitation program aimed at dismantling Viet Cong Infrastructure (VCI) in which target selection devolved from high-ranking commanders to low-level fighters. The Phoenix Program relied on Provincial Reconnaissance Units (PRUs) to neutralize Viet Cong soldiers and facilitators. The PRUs had three methods of neutralization: capturing, inducing desertion, and killing.[10] The PRUs and the Phoenix Program neutralized tens of thousands of Viet Cong and the PRUs killed a significant number of them. The PRUs used certain criteria to target VCI such as evidence of their activities and positions within the VCI organizational structure.[11] These criteria are similar to how signature strike operators evaluate prospective targets today. As the Phoenix Program aged, the PRUs targeted fewer high-value commanders in favor of a greater number of low-level combatants.[12]
The Reagan administration’s counterterrorism policy, articulated in 1984, advocated a preemptive posture akin to today’s signature strikes. National Security Decision Directive 138 authorized the CIA to: “Develop, in coordination with other friendly security services, capabilities for the pre-emptive neutralization of anti-American terrorist groups which, plan, support, or conduct hostile terrorist acts against U.S. Citizens, interests, and property overseas.”[13] The Reagan administration never implemented NSDD 138, however, and neither the CIA, the military, nor America’s allies conducted operations to neutralize foreign terrorists. Despite the fact that it was never used, the policy explicitly articulated preemptive offensive counterterrorism measures. In addition, Secretary of State George Schultz publicly called for the United States to use preemptive force to check international terrorist organizations.[14]
Targeted killings, signature strikes, and armed drones are not interdependent. Armed drones can be used to carry out operations that are not targeted killings or signature strikes, and likewise Special Forces teams can carry out the same operations. The tools are less important than the nature of the operations. Historically, the White House has authorized operations to kill its enemies and will undoubtedly continue to do so.
Key Trends
These past operations and precedents inevitably raise the question: how can history inform today’s targeted killing and signature strikes policy? This section identifies six distinct historical trends that should inform policymakers today.
Fusion between Military and Intelligence
Over the years, the military has taken on responsibilities traditionally assigned to the intelligence community, while the CIA has amassed increased war-fighting capabilities.[15] The air raid on Yamamoto exemplified traditional military and intelligence roles. Intelligence cryptologists decrypted a Japanese cable and provided actionable intelligence to the military, which then carried out the lethal operation. The Phoenix Program and the use of Provincial Reconnaissance Units, on the other hand, was a convoluted convergence of military and CIA responsibility. American advisers to the PRUs were either military or intelligence officials, and the responsibilities for each team included intelligence collection and analysis as well as enemy neutralization through capture, desertion, or elimination. Intelligence collection and analysis has been the traditional role of intelligence officers, while enemy neutralization has historically been the responsibility of a soldier. The targeted killing of Anwar al-Awlaki is an example of a nearly seamlessly fused operation by which the CIA and JSOC both had intelligence collection capabilities and armed drone programs in Yemen. Moreover, the National Security Council originally assigned the task to fix and finish Awlaki to JSOC, but then switched the mission jurisdiction to the CIA in the final months of the hunt.[16]
These three examples show the increasing fusion between the two communities over time. In the downing of Yamamoto’s plane, the communities adhered to traditional roles. During the Phoenix Program, the PRUs were a mix of military and intelligence personnel performing a wide range of activities ranging from intelligence collection to enemy neutralization. The Awlaki drone strike is a capstone to the increasing fusion between the two communities.
Today’s terrorist organizations are decentralized, geographically dispersed, and horizontally-structured, factors which demand a different response to the localized and vertically-structured threats of the past. In addition, today’s terrorist organizations and insurgent movements are asymmetric.[17] Thus, it is unsurprising that the military and intelligence communities have sought to improve their own counterterrorism capabilities by expanding their traditional roles of war fighting and intelligence collection and analysis.
Armed, unmanned systems are the perfect technological platform for the fused operations of the twenty-first century. Remotely piloted vehicles were initially designed for intelligence, surveillance, and reconnaissance.[18] When the CIA and DOD decided to equip the MQ-1 Predator drone with a Hellfire II missile in 2000, however, they added a war fighting function. Thus, there are two layers of fusion between today’s military and intelligence operations. The first is the jurisdictional fusion between the CIA and the military, where the military now has greater intelligence capabilities and the CIA has more war fighting responsibilities. The second, more tactical layer of fusion is the technological platform. Both the intelligence community and the Department of Defense are employing armed, unmanned systems which have the capability of collecting intelligence and killing enemy combatants.
The increased fusion between military and intelligence communities raises the legal issue of covert authority. The National Security Act of 1947 reorganized the defense and intelligence communities and added provisions to the U.S. Code. Title 10 and Title 50 clarify the roles of the intelligence and defense communities. Yet there is no strict interpretation of these statutes.[19] Title 10 is often associated with the Department of Defense and its concomitant military operations, while Title 50 is thought to refer to intelligence agencies and covert action.[20] The debate over Title 10 and Title 50 burgeoned after the Special Forces raid that killed Osama bin Laden in 2011. The CIA temporarily contracted U.S. Navy Seals under Title 50 authority to conduct a covert action mission because the United States military did not have authorization to conduct military missions in Pakistan.[21] Mark Mazzetti, a national security reporter for the New York Times, notes that the security community’s slang term for this phenomenon of temporarily contracting military personnel is “sheep dipping.”[22] Title 10 and Title 50 authority further explains that the CIA originally secured the contract to use armed drones in Pakistan because the Agency needed to conduct strikes under covert authority.
The increased fusion between the military and intelligence communities highlights important considerations for this paper’s policy recommendations. This trend has a history that dates back to the Phoenix Program where mission creep was evident between soldiers and spies. Three decades later, the intelligence community and Pentagon catalyzed this convergence when faced with the asymmetric nature of the terrorist threat and the unique war fighting and intelligence capabilities of armed drones. In modern fused operations, the Bush and Obama administrations have relied on the framework embedded in the U.S. Code for aggregating military and covert action activities. Therefore, any policy recommendation has to recognize the history of fusion, its recent developments, and the established framework in the U.S. Code.
Executive Command
Throughout the history of targeted killings and signature strikes the executive branch has become increasingly involved and open about its role in the use of lethal force. The Roosevelt administration did not admit that Admiral Yamamoto died in a plane crash until a month after the operation when Japanese radio stations eulogized the fallen commander. Even then, President Roosevelt simply responded with “Gosh!”[23] Later, the Truman administration did not reveal that American aviators gunned down Yamamoto until after Japanese leaders surrendered. The White House stayed removed from any role in the targeted killing, mainly because they did not want to reveal that American intelligence officer cracked the Japanese Code.
In the early years of the Cold War, the National Security Council authorized the CIA’s assassination plots under the auspices of “plausible deniability.” The White House intentionally installed mechanisms to distance itself from lethal action. The 1986 airstrike on Qaddafi was a departure from this norm because President Reagan addressed the nation announcing the raid on Libya’s terrorist facilities. President Clinton followed Reagan’s lead and announced the cruise missile strike on the al Qaeda compound near Kwhost in 1998.
President Obama has taken the most active role of any U.S. President to date in authorizing lethal force. The National Security Council curates the disposition matrix—the software that manages the location and priority of terrorist targets—while President Obama makes the final decisions—which operations to conduct.[24] In addition, President Obama and his top officials have taken to public forums to argue the administration’s position and criteria on targeted strikes. The role of the executive branch in targeted lethal strikes is more visible today than it was in the era of plausible deniability.
One plausible explanation for why the Obama administration has taken such an authoritative role in authorizing and publicizing targeted strikes is the technology itself.
Remotely piloted aircraft have a clear chain of command. The President no longer has to wait for the dust to settle to hear the results of cumbersome covert proxy operations. With remotely piloted targeted killings, the results are quickly communicated up the chain of command. Moreover, the public’s conception that America is waging war by remote control undoubtedly pushes the authorizing administration to be more forthcoming about the technology and how the respective agency employs it.
Technology
Military and intelligence communities have employed advanced technology throughout the history of targeted killings. From the inventions of the longbow to the airplane, distancing humans from conflict is a trend that has long existed in warfare. Today’s technologies place an even stronger emphasis on removing human operators from the equation. In the strike on Admiral Yamamoto, army aviators used the maneuverable P-38 aircraft, a plane with less than a year of combat deployment.[25] The debates within the Clinton administration over how to kill Osama bin Laden also reveal the fact that the administration feared putting U.S. personnel in danger. The administration used cruise missiles, which removed American operators from battle. The missiles, however, had long flight times necessitating knowledge that a specific target—in this case Bin Laden—would be in one location for an extended period of time. Military officials proposed using AC-130 gunships but were worried about their short flight time, the need for nearby landing zones, or the risk of losing American personnel in foreign territory.[26] These considerations resulted in arming the MQ-1 Predator drone, which has proved to be an effective tool for hunting terrorists.
Remotely piloted vehicles such as the MQ-1 and the more advanced MQ-9 are ideal platforms for targeted killings and signature strikes. The MQ-9 — variously titled the Predator or Reaper, depending on the agency or military division terming it — can fly for twenty-seven hours at a maximum altitude of 50,000 feet, loiter for hours above a target, and can carry a laser-guided, Hellfire II Missile as well as more sophisticated and substantial bombs.[27] A human operator, often thousands of miles away, remotely pilots this aircraft. The precision munitions systems and the remotely-piloted nature of unmanned aerial vehicles are valuable benefits to counterterrorism operations, but those features are not what make them the ideal tool for lethal strikes. The reason remotely piloted vehicles have become synonymous with counterterrorism under the Obama administration is due to their unique ability to loiter. The UAV’s capacity to circle for hours at a time overhead make it the ideal tool for intelligence collection, target identification, and lethal strikes.
While these major technological advancements and the use of remotely piloted vehicles in lethal counterterrorism missions have raised profound ethical questions, drone technology is rapidly advancing and its use will undoubtedly continue in targeted strikes by the military and CIA. Using new technology has been a trend in targeted killings for decades and has been one of the most debated issues in modern targeted lethal policy.
Preemption and Imminence
Signature strikes and targeted killings are preemptive in nature. The White House authorizes the use of preemptive force with the expectation that an adversary will attack first.[28] A concept that goes hand-in-hand with preemption is determining whether an attack is imminent. John Yoo, an attorney in the Bush administration, wrote, “Imminence classically depends on timing. Only when an attack is soon to occur, and thus certain, can a nation use force in preemptive self-defense.”[29] The Obama administration explicitly outlines imminence as a criterion for a targeted killing. Eric Holder, the Attorney General, wrote in a leaked White Paper, “an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.”[30]
The Obama administration has justified its preemptive lethal actions in domestic and international law. John Brennan, the current Director of the CIA, noted in a speech that “The Constitution empowers the President to protect the nation from any imminent threat of attack.”[31] Following the precedent of the Reagan and Clinton administrations, the Obama administration also grounds its international legal authority in Article 51 of the United Nations Charter. With regard to international law, officials have vehemently defended the use of unmanned technology, arguing that there is no stipulation that “bans the use of remotely piloted aircraft for [national self-defense] or that prohibits [the United States] from using lethal force against [its] enemies outside of an active battlefield.”[32]
In the historical precedents for targeted killings and signature strikes, imminence and preemption were not always explicitly used as justification by the presiding administrations. It is possible, however, to infer preemption in many of the operations. NSDD 138 was the most explicit reference to using preemptive tactics to counter terrorism, although it is impossible to know whether those tactics would have been lethal because the Reagan administration never implemented the neutralization policy. The targeted killings on Yamamoto and Awlaki and the attempted strike against Bin Laden in 1998 all highlight the preemptive justification. Yamamoto was the architect of Pearl Harbor and the commander during Midway; as such, military and national security advisors reasoned that he would orchestrate a surprise attack on U.S. forces again. According to historian Paul Woodruff, the raid on Yamamoto was not motivated by vengeance, but instead aimed to preempt another attack.[33] Thus, the Roosevelt administration justified the air raid as preemptive. Likewise, Bin Laden had attacked several U.S. assets around the world by the year 1998. Intelligence revealed he was planning to attack more targets, which he did in the USS Cole bombing in the year 2000, and on September 11, 2001. Anwar al-Alwaki was an ideologue turned operator who plotted several attacks against the United States and inspired many more. Therefore, there was a clear expectation Awlaki would continue to target Americans.
The use of UAV technology raises the issue of imminence and by extension, preemption. Using armed drones allows pilots to see militants in the early stages of any attack. A militant might be handling explosives or training in an al Qaeda compound for an attack that could happen in a day, in a month, or in a year, which raises the question: How soon is imminent? Juan Zarate, the Deputy National Security Advisor for Counterterrorism in the Bush administration, stated in an interview that the Obama administration has greatly expanded the concept of imminence. Zarate stated:
The notion of preemption changed because it was no longer clear imminence, it morphed into a sort of persistent imminence … the traditional examples of imminence are when tanks are ordered on the border, ships are headed towards the harbor, and aircraft are headed into sovereign airspace, that is imminence. Now, that concept has changed to they have tanks, ships, and airplanes.[34]
Preemption has always been implicitly involved in targeted strikes because policymakers are looking to eliminate an individual before that individual can attack. Yet the shift toward persistent imminence can be, in part, attributed to UAV technology. The ability to spy on militants who are performing nefarious actions but who may not be explicitly planning an attack on the United States, for example, forms the basis of signature strike policy.
Expanding internationally recognized concepts such as imminence increases the risk that legal authority is stretched to its breaking point. Administrations have a working platter of legal justifications to choose from, and each administration uses different authority to justify imminence. Presidents Reagan and Clinton used Article 51 of the United Nations Charter to justify strikes. The Bush administration used constitutional authority. Instead of authorizing strikes from presidential authority, the Obama administration grounded its justifications in the 2001 Authorization for the Use of Military Force. Rewriting international and domestic law and internationally recognized concepts such as imminence sends a message to other nations that they too can alter accepted norms as they see fit.
Public Support
Two factors contribute public support for lethal force: a target’s value and executive transparency. Public support is imperative in maintaining political support for a sustained targeted killing strategy. The checkered history of American targeted lethal operations, seen through the Phoenix Program and Cold War assassinations, highlights the real risk that public anger could force the U.S. government to halt an otherwise successful program. This section argues that targeted killings that have high target value and high executive transparency have the most public support.
Unquestionably, the two most well-received targeted killings in American history were those of Admiral Yamamoto and Osama bin Laden. Both operations were euphorically welcomed because each man had precipitated a devastating loss of life. The primary differentiating factor between the strike on Yamamoto and the raid on Bin laden, however, is the issue of executive transparency. In the case of Yamamoto, reporters did not announce his death until a month after Japanese radio had already eulogized it. When the White House did finally reveal that American aviators had killed the Japanese Admiral, the announcement coincided with the official Japanese surrender of World War II. Euphoria for the operation overlapped with a United States victory, and it became difficult for the public to bifurcate the two events.
The American public despised Bin Laden, and it is perhaps for this reason that the strike at Abbottabad offers an example of successful executive transparency. Americans turned en masse to their televisions and computers when news about Bin Laden’s death began to leak. The Awlaki drone strike, by contrast, did not receive the same level of public support, despite the fact that Alwaki was a high-value target. From an operational perspective, Awlaki’s target value was high, but the Yemeni cleric did not earn the same public enmity as Bin Laden or Yamamoto. Awlaki’s American citizenship also complicated public support for the strike. Although President Obama announced Awlaki’s death the morning after it occurred, the news was that the White House targeted an American citizen and the debate quickly shifted to the issue of citizenship rather than the value of the target.[35] Thus, two factors theoretically contribute to positive American reaction to targeted killings as seen in Figure 1.
The most positive public support to targeted strikes will occur when target value and executive transparency are both high. Using the same logic, negative reaction will occur when target value and executive transparency are both low. The other example worth noting is the CIA’s assassination attempts during the Cold War, which resulted in negative public reaction. As noted earlier, assassinations are different from targeted killings because the former are illegal. Nevertheless, the executive transparency was very low and the CIA plotted the operations in secrecy against a range of targets during the Cold War. The most notorious target of these proposed assassinations was Fidel Castro. While Castro’s target value was high, executive transparency was low.[36] The Phoenix Program led to heightened cynicism directed towards the CIA, and signature strikes continue to face considerable opposition.[37]
Public reaction where a low target value is coupled with high executive transparency, and high target value is coupled with low executive transparency are both noted as neutral; however the public will likely respond more favorably to the death of a high-value target (thus neutral to positive), as it did in the Yamamoto raid, even when transparency is low. There is also no real precedent for announcing low-value strikes with high executive transparency because there are not many scenarios where the public would be grateful that the president informed them the military targeted low-level militants. The only possible scenario is if the president was clarifying an operational mistake, which certainly would not result in positive public support.
Figure 2 shows observed public support to lethal targeted strikes. As noted, it would be bizarre for an executive administration to have high transparency for a low-value target unless an egregious error occurred. Therefore, the quadrant for high transparency and low target value highlights the rarity of such an event. The major implication of this argument is that high-value targets and executive transparency are the two most important factors in determining positive American reaction to the use of targeted lethal force.
Policy Recommendations
There is a rich history of the American government contemplating and using targeted lethal force prior to 9/11. Based on trends highlighted above, this paper suggests three policy recommendations.
1. The executive branch should only conduct targeted killings and stop signature strikes.
The White House should eliminate the signature strikes policy. Targeting individuals by characteristics alone expands the concept of imminence too far, setting a dangerous precedent. Technological innovation, as well as a public appetite for counterterrorism, have led to targeting killing policies that widen the concept of imminence beyond recognition. By analyzing an individual’s past actions, it is possible to explain how he might pose an imminent threat to the United States. Post strike, it is also possible to convey that individual’s misdeeds to the public. It is impossible, however, to assess an individual’s plots or operations when the state does not know an individual’s identity. This fact eliminates the opportunity to announce the proposed beneficial ramifications of a strike to the public.
Signature strikes also set a dangerous precedent for the international community. If other nations decide to conduct lethal operations to counter terrorism or other national security threats, the White House’s targeted killings policy sets a better example than its signature strike policy. The White House is significantly more transparent when it targets individuals than when it targets militants based on their behavior. When a government specifically identifies the individual it is targeting, it also makes it possible for scholars, reporters, international institutions, and the public to assess whether that person poses an imminent threat and the merits of the government’s justifications for the targeted killing. It is impossible to do the same for signature strikes. The executive branch, based on its past strikes, has a set of criteria for signature strikes which include handling explosives, traveling in an armed convoy towards a conflict, or training in a known al Qaeda facility. Neither the Bush nor Obama administrations have explicitly defined these scenarios; the criteria are only inferred through reports. Thus, another nation’s signature strike policy is open to their own government’s interpretation, which is especially disconcerting when considering some of the world’s more repressive regimes.
Signature strikes may be effective at eliminating threats by chance, yet the pros of signature strikes do not outweigh the cons. Signature strikes may be more effective in active duty war zones where there are troops on the ground supported by armed drones. Signature strikes in limited lethal counterterrorism operations, however, are out of place. The chances of a signature strike going awry and killing scores of civilians is much higher than a targeted operation against a well-known individual. The scenarios for signature strikes are open to the pilot or targeting analyst’s interpretation. In addition, if the President decides he or she needs to continue to kill terrorists outside of active war zones in the future, signature strikes run the risk of severely damaging relations with host nations.
If the CIA and military conduct too many unsuccessful or collateral damage-ridden signature strikes, the United States runs the risk of nullifying the host nation’s agreement to allow American UAVs in their airspace. Thus far, leaders from Pakistan, Yemen, or Somalia have remained amenable to American UAVs in their airspace. The recently reported negotiations between Pakistani leaders and American policymakers about curbing low-value strikes, however, signal that foreign nations will use airspace as a diplomatic bargaining chip.[38] Nullifying the agreement would eliminate the opportunity to target high-value individuals. If the reports are true that the Obama administration agreed to scale back its strikes in Pakistan and only target high-value individuals, a policy which would serve to eliminate all signature strikes, then American officials are already moving toward this recommendation.[39] While the agreement between Pakistani and American officials is a step in the right direction, the Obama administration has continued to authorize signature strikes in Yemen in 2014.[40]
2. The Central Intelligence Agency should remain in charge of conducting targeted killings.
The question of who should run America’s armed drones to counter terrorism has been a question since “The Predator Initiative.”[41] When the Bush administration was debating who should run the armed predator program in 2001, George Tenet, the Director of Central Intelligence, raised a series of key questions. According to the 9/11 Commission, Tenet asked, “What is the chain of command? Who takes the shot? Are America’s leaders comfortable with the CIA doing this, going outside of normal military command and control?”[42] Such questions concerning command have only become more complex in the past decade due to the fact that the CIA and JSOC both run parallel drone programs. In January 2014, the United States Congress blocked the transfer of the CIA’s armed drones to the military (presumably to the Joint Special Operations Command) by adding provisions in the classified portion of the federal budget.[43] The CIA should be the sole organization in charge of targeted killings for one very good reason: it is better at targeted killings. The CIA has a track record of securing accurate intelligence sources, which makes for accurate targeting data resulting in fewer civilian casualties.[44]
On the surface, it makes more sense for JSOC to run the counterterrorism drone program. Owen Cote, a security studies expert who specializes in military operations at the Massachusetts Institute of Technology, stated in an author interview, “The CIA will stop conducting operations at some point and JSOC will take over. JSOC is gearing up for the shift. JSOC was a killing machine in Iraq. They would conduct kill-capture raids every night, collect the intelligence, and run the next operation.”[45] There are two lethal drone programs in Yemen: the CIA operates one and JSOC operates the other. JSOC was the first organization to have authority over Yemen, but the CIA was given the authorization to expand to Yemen because JSOC made several mistakes including targeting the wrong individuals.P[46]P Congress’s decision to block the transition is presumed to be influenced by the poorly executed strike on December 12, 2013, when JSOC controlled drones killed several civilians, tribal leaders, and possibly members of a Yemeni wedding party.[47] If the United States government is going to kill individuals around the world with a UAV, correct and accurate execution of the operation is crucial.
While the CIA is an intelligence organization, not a killing organization, it has achieved superior results with targeted killings. Targeted killings are intelligence driven operations. The first two legs of a find-fix-finish mission are contingent on intelligence. In addition, the “finish” portion of the operation will only be as successful as the intelligence is accurate. This mission is better suited for the CIA. After 9/11, the CIA swelled with a new class of counterterrorism analysts and targeters who spent more than a decade hunting terrorist targets in Iraq and Afghanistan. The CIA has more intelligence resources than JSOC to ensure their targeting data is correct. The CIA also has the ability to use human intelligence in targeted killings, which proved useful in the Anwar al-Awlaki strike.[48]
The CIA was also the first organization to conduct armed drone strikes. The Agency therefore, has had time to build an infrastructure and targeting processes. The drone theatre in Pakistan is by far the most pervasive in terms of frequency of strikes and longevity of the program. The CIA’s experience and seasoned personnel translate to more precise results. Austin Long, a scholar at Columbia University who specializes in counterinsurgency and has spent time as an embedded researcher with U.S. Special Forces teams, argues that while JSOC has expanded rapidly over the last decade with massive increases in personnel, “The Agency has cadres of personnel who are more refined and have better [tactics, techniques and procedures].”[49] For example, he notes that, “In some cases the Agency may launch four drones for one strike. One may designate the target. One may fire the weapons system. But one’s job is solely to evaluate possible collateral damage.”[50] By giving each pilot a different responsibility, these procedures ensure a broader operational picture, ensuring that operators can properly assess the presence of civilians and not just focus on the target.[51] Thus, the CIA not only has more seasoned targeters with better intelligence resources, they also have better techniques honed through more years of experience conducting drone strikes.
The obvious counterpoint to this recommendation is that the CIA’s primary focus should be intelligence collection. Allowing the Agency to conduct targeted killings is outside its mission, detractors of the proposed strategy say. Yet, the shift in CIA culture has already happened. The 9/11 attacks galvanized American leaders to do whatever it took to track down terrorists and hold them accountable. This eliminated any hesitations that top CIA leadership had about returning to killing operations. At this point in U.S. national security policy, it is more important that the government conduct operations diligently and effectively, taking every opportunity to account for false intelligence and active civilian presence. The CIA already has the resources and, after 9/11, the authorization to kill terrorists.
A second counterargument centers on whether CIA personnel would support the continuation of targeted killings. According to the media, the most adamant advocate within the CIA to end its lethal strikes is John Brennan, the agency’s own director.[52] During Brennan’s confirmation hearing as director of the CIA, he stated, “The C.I.A. should not be doing traditional military activities and operations.”[53] Brennan’s opposition is surprising given his influence in amplifying the Obama administration’s drone strikes and his decision to transfer the responsibility to hunt Awlaki from JSOC to the CIA.[54] Nevertheless, the media reports that Brennan aims to refocus the agency on analysis because of the CIA’s less-than-stellar analytical performance in forecasting the Arab Spring.[55] Mazzetti reports that the predominant faction within the CIA advocating a continuation of the policy of targeted strikes is the agency’s counterterrorism center. The CTC also has the support of Senate Intelligence Committee Chairwoman Dianne Feinstein.[56] Refocusing the agency to emphasize analysis over counterterrorism does not nullify this paper’s recommendation. The CIA already has a functioning counterterrorism apparatus. Strengthening traditional analysis can be done in parallel with continuing lethal counterterrorism operations. If the White House is going to continue to authorize targeted lethal action, which agency will be the most diligent, cautious, and precise? The answer is the CIA.
3. The Executive Branch should announce the CIA’s mandate to conduct targeted killings and release the targeting “playbook.”
The third and final recommendation rests on the implementation of the second. If the CIA retains control over lethal counterterrorism strikes, the public needs to know. Transparency is not only a fundamental feature of democracy, but greater transparency facilitates stronger public support and thus ensures that targeted killing operations maintain political support. There are two steps to implementing this change. First, the White House should declassify parts of the “playbook” for targeted strikes. Second, the executive branch should write a new mandate authorizing the CIA to carry out targeted killings solely for counterterrorism purposes. There have been numerous press reports that the National Security Council created a “playbook,” which outlines the Obama administration’s procedures for targeting terrorists.[57] The National Security Council playbook is classified. The report in full does not need to be declassified because it would most likely compromise agreements with host nations, reveal special technologies, and expose informants. The only substantive material that the executive branch should declassify is the institutional process for approving lethal strikes. Americans are still sensitive to terrorists’ threats. For the most part, they support counterterrorism agendas. The public, however, prefers to know the procedures that the government uses for killing terrorists and militants. How many people review the list of priority individuals? Who makes decisions for the priority of certain individuals? What is the nominating process for adding new extremists to the list? These are all questions the executive branch could answer by releasing a version of the secretive “playbook.”
The CIA’s new mandate should address covert authority, include an executive order, and outline Congress’s role in the new targeted killings program. The NSC needs to sift through the logistical details to determine whether to conduct operations under covert authority or not. The host nation’s citizens should see that the United States government is conducting lethal operations; therefore, the White House and CIA should end the era of keeping the intelligence agency’s hand in armed drone strikes hidden. The executive branch should formally authorize the CIA to conduct targeted killings by declassifying the original executive order in the Bush administration that expanded the Agency’s responsibilities. Alternatively and preferably, the NSC should draft a new executive order with congressional input. In such an order, the White House should outline why the CIA will continue targeted killings by highlighting its successes and failures over the past decade. In addition, the mandate should provide full legal justifications for the Agency’s new role in counterterrorism. Finally, the new mandate for the CIA should include its responsibilities for congressional intelligence oversight committees to oversee the program and allow the committees complete access to the disposition matrix and all operations.
Conclusion
Since September 11, 2001 the Bush and Obama administrations have conventionalized the use of targeted lethal force, but they did not inaugurate the policy. For decades, American presidents have waged war by precisely targeting enemies and killing them. Today’s operations only differ from those in prior decades because of their technology and frequency. These operations will undoubtedly continue, as will the debates surrounding them. Open debate is a fundamental feature of democracy and will only serve to clarify the nation’s position on using lethal force. The impetus is to look forward when considering how, why, and when the American government should act with lethal resolve, yet it is equally important to look backwards. Understanding the past debates about killing individual enemies serves to enlighten the contemporary debates.
Damian Mencini graduated from Boston College in 2014 as a Scholar of the College. His research interests include counterterrorism, proxy warfare, and U.S. National Security policy. This paper is based on a section of his senior thesis, which won the John McCarthy, S.J. Award for most distinguished thesis in Social Sciences.
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[1] National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report: Final Report on Terrorist Attacks upon the United States (Washington, D.C.: United States Government Printing Office, 2004), 210-214.
[2] The Air Force and CIA used small jet-propelled unmanned aerial vehicles during the Vietnam War called Lightning Bugs to carry out high-altitude reconnaissance missions. The precursor to the MQ-1 Predator drone—the most prolifically used remotely piloted aircraft in the twenty-first century—dates back to late 1980s when an American contractor created the Gnat and the Amber, which were larger stand-off platforms. The MQ-1 Predator drone was first deployed in the Balkan conflicts in the 1990s, and then later armed in the twenty-first century. For more on the history of remotely piloted aircraft see: Brian Glyn Williams, Predators: The CIA’s Drone War on Al Qaeda (Washington D.C.: Potomac Books, 2013), 20-25.
[3] Eric Holder, “Attorney General Eric Holder Speaks at Northwestern University School of Law,” (Speech, Chicago, IL, March 5, 2012), The Department of Justice, http://www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1203051.html.
[4] Micah Zenko, “Reforming U.S. Drone Strike Policies,” Council on Foreign Relations, Special Report no. 65 (January 2013): 6; Charles Faint and Marshall Harris, “F3EAD: Ops/Intel Fusion “Feeds” The SOF Targeting Process,” Small Wars Journal, January 31, 2012, http://smallwarsjournal.com/jrnl/art/f3ead-opsintel-fusion-%E2%80%9Cfeeds%E2%80%9D-the-sof-targeting-process.
[5] Holder, “Attorney General Eric Holder Speaks at Northwestern University School of Law”; Harold Koh, “The Obama Administration and International Law,” (Speech, Washington, D.C., March 25, 2010,) The State Department, http://www.state.gov/s/l/releases/remarks/139119.htm;Jeh Johnson, “National Security Law, Lawyers and Lawyering in the Obama Administration,” (Speech, New Haven, CT, February 22, 2012), Council on Foreign Relations, http://www.cfr.org/defense-and-security/jeh-johnsons-speech-national-security-law-lawyers-lawyering-obama-administration/p27448.
[6] For mentions of the 1986 airstrike in targeted killings literature see Jeffrey Richelson, “When Kindness Fails: Assassination as a National Security Option,” International Journal on Intelligence and Counterintelligence 15, no. 2, (2010): 243-274; Howard Rachtel, “Targeting Osama Bin Laden: Examining the Legality of Assassination as a Tool of U.S. Foreign Policy,” Duke Law Journal 55, no. 3, (2005): 677-710; Kenneth Anderson, “Targeted Killing in U.S. Counterterrorism Strategy and Law,” Working Paper between the Brookings Institution, Georgetown University Law Center, and Hoover Institution (2009), http://www.brookings.edu/~/media/research/files/papers/2009/5/11%20counterterrorism%20anderson/0511_counterterrorism_anderson.pdf.
[7] Stephen Hosmer, Operations Against Enemy Leaders (Santa Monica, CA: RAND Corporation, 2001), 27; Ronald Bruce St John, Libya and the United States: Two Centuries of Strife (Philadelphia, PA: University of Pennsylvania Press, 2002), 122.
[8] Ronald Reagan, “Address to the Nation on the United States Air Strike against Libya,” (Speech, Washington, D.C., April 14, 1986), http://www.reagan.utexas.edu/archives/speeches/1986/41486g.htm.
[9] Kevin Jon Heller, “‘One Hell of a Killing Machine:’ Signature Strikes and International Law,” Journal of International Criminal Justice 11, (2013): 94-103.
[10] Mark Moyar, Phoenix and Birds of Prey (Annapolis: Naval Institute Press, 1997), 236.
[11] United States Military Assistance Command, Vietnam, Phung Hoang Adviser Handbook, (Saigon: U.S. Military Assistance Command, Vietnam, November 20, 1970): 9.
[12] William Rosenau and Austin Long, “The Phoenix Program and Contemporary Counterinsurgency,” RAND, (2009): 14.
[13] National Security Decision Directive 138, “Combatting Terrorism,” The White House (April 3, 1984), 4.
[14] George Schultz, “Terrorism and the Modern World,” Terrorism 7, no. 4 (1985), 431-447.
[15] Mark Mazzetti and Robert Chesney also argue for a convergence between military and intelligence. For more see Mark Mazzetti, The Way of the Knife: The CIA, A Secret Army, and a War at the Ends of the Earth (New York: Penguin Press, 2013); Robert Chesney, “Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate,” Journal of National Security Law and Policy 5, (2012): 539-629.
[16] Hakim Almasmari, Margaret Coker, and Siobhan Gorman, “Drone Kills Top Al Qaeda Figure,” The Wall Street Journal, October 1, 2011, http://online.wsj.com/news/articles/SB10001424052970204138204576602301252340820; Mazzetti, The Way of the Knife, 308.
[17] Carter Ham, “Fit for the Future: Cross-Atlantic Perspectives on Ground Forces,” (Lecture: Center for Strategic and International Studies, Washington D.C.), June 20, 2013.
[18] J.R. Reid, interview with author (Washington D.C., August 2013). J.R. Reid is a former Air Force Lieutenant and currently an engineer with General Atomics, which is the manufacturer of the MQ-1 and MQ-9 remotely piloted vehicles. The MQ-1 and MQ-9 are the primary aircraft used by the military, the CIA, and JSOC to conduct targeted killings and signature strikes and are better known for their product names “Predator” and “Reaper.”
[19] Andru Wall, “Demystifying the Title 10-Title 50 Debate: Distinguishing Military Operations, Intelligence Activities & Covert Action,” Harvard Law School National Security Journal 3, (2011): 100.
[20] Ibid., 87.
[21] Chesney, “Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate,” 539.
[22] Mazzetti, The Way of the Knife, 133.
[23] “‘Gosh!’” Says Roosevelt On Death of Yamamoto,” The New York Times, May 21, 1943.
[24] Greg Miller, “Plan for hunting terrorists signals U.S. intends to keep adding names to kill lists,” Washington Post, October 12, 2012, http://www.washingtonpost.com/world/national-security/plan-for-hunting-terrorists-signals-us-intends-to-keep-adding-names-to-kill-lists/2012/10/23/4789b2ae-18b3-11e2-a55c-39408fbe6a4b_print.html.
[25] “Lockheed P-38J-10-LO Lightning,” Smithsonian National Air and Space Museum, http://airandspace.si.edu/collections/artifact.cfm?object=nasm_A19600295000.
[26] National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report: Final Report on Terrorist Attacks upon the United States (Washington, D.C.: United States Government Printing Office, 2004), 135-136.
[27] “MQ-9 Reaper/Predator B,” General Atomics, (Product Information Card: Received at the AUVSI Unmanned Systems Conference, August 2013).
[28] Karl Mueller, Jasen Castillo, Forrest Morgan, Negeen Pegahi, and Brian Rosen, Striking First: Preemptive and Preventative Attack in U.S. National Security Policy (Santa Monica, CA: RAND Corporation, 2006), 6-8.
[29] John Yoo “Assassinations or Targeted Killings After 9/11,” New York Law School Law Review 56, (2011/12) 73.
[30] “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qaeda or an Associated Force,” Department of Justice (White Paper: 2013).
[31] Brennan, “The Ethics and Efficacy of the President’s Counterterrorism Strategy.”
[32] Ibid.
[33] Paul Woodruff, “Was it Right to Gun for Yamamoto?” in Lightning over Bougainville, ed. R. Cargill Hall (Washington, D.C.: Smithsonian Institute Press, 1990), 46-53.
[34] Juan Zarate, interview with author (Cambridge, MA: March 2014).
[35] Barack Obama, “Remarks by the President at the ‘Change of Office’ Chairman of the Joint Chiefs of Staff Ceremony,” (speech, Fort Meyers, VA, September 30, 2011), The White House.
[36] The example of Castro shows how low public support can be for lethal operations and the severe scrutiny for the CIA. The CIA assassination plots, however, are omitted from further analysis because this paper focuses on legal operations.
[37] Congressional Representatives looked to add a provision to the Intelligence Authorization Act for Fiscal Year 2014 to ban signature strikes. See United States House of Representatives, “Intelligence Authorization Act for Fiscal Year 2014,” 113th Congress 1st Session, Report 113-277 (November 25, 2013), 28.
[38] Adam Entous and Siobhan Gorman, “U.S. to Curb Pakistan Drone Program,” Wall Street Journal, February 5, 2014, http://online.wsj.com/news/articles/SB10001424052702304450904579365112070806176.
[39] Ibid. and Karen DeYoung and Greg Miller, “U.S. said to curtail drone strikes in Pakistan as officials there seek peace with Taliban,” Washington Post, February 4, 2013, http://www.washingtonpost.com/world/national-security/us-curtails-drone-strikes-in-pakistan-as-officials-there-seek-peace-talks-with-taliban/2014/02/04/1d63f52a-8dd8-11e3-833c-33098f9e5267_story.html.
[40] In April 2014, CIA-operated UAVs killed as many as 55 unidentified militants in southern Yemen. Eric Schmitt, “U.S. Drones and Yemeni Forces Kill Qaeda-Linked Fighters, Officials Say,” New York Times, April 21, 2014, http://nytimes.com/2014/04/22/world/middleeast/us-drones-and-yemeni-forces-kill-qaeda-linked-fighters-officials-say.html.
[41] DCI Report: The Rise of UBL and Al-Qa’ida and the Intelligence Community Response,” Draft, Central Intelligence Agency Analytic Report, March 19, 2004, 60.
[42] National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, 211.
[43] Greg Miller, “Lawmakers seek to stymie plan to shift control of drone campaign from CIA to Pentagon,” Washington Post, January 15, 2014, http://www.washingtonpost.com/world/national-security/lawmakers-seek-to-stymie-plan-to-shift-control-of-drone-campaign-from-cia-to-pentagon/2014/01/15/c0096b18-7e0e-11e3-9556-4a4bf7bcbd84_story.html.
[44] Ibid.
[45] Owen Cote, interview with author (telephone, March 2014).
[46] Greg Miller, “Obama’s new drone policy leaves room for CIA role,” Washington Post, May 25, 2013, http://www.washingtonpost.com/world/national-security/obamas-new-drone-policy-has-cause-for-concern/2013/05/25/0daad8be-c480-11e2-914f-a7aba60512a7_story.html.
[47] Schmitt, “Congress Restricts Drone Program Shift” and Zaid Ali and Laura King, “U.S. Drone Strike on Yemen wedding party kills 17,” Los Angeles Times, December 13, 2013, http://articles.latimes.com/2013/dec/13/world/la-fg-wn-yemen-drone-strike-wedding-20131213.
[48] Prior to the Awlaki strike, the CIA ran multiple operations to find Awlaki through human intelligence. Journalists have reported that the CIA finally tracked Awlaki through an agent in al Qaeda in the Arabian Peninsula. For more see Mark Mazzetti, Charlie Savage, and Scott Shane, “How a U.S. Citizen Came to Be in America’s Cross Hairs,” The New York Times, March 9, 2013, http://www.nytimes.com/2013/03/10/world/middleeast/anwar-al-awlaki-a-us-citizen-in-americas-cross-hairs.html.
[49] Austin Long, interview with author, (telephone: March 2014).
[50] Ibid.
[51] Ibid.
[52] Mark Mazzetti, “Delay in Effort to Refocus CIA from Drone War,” New York Times, April 5, 2014, http://www.nytimes.com/2014/04/06/world/delays-in-effort-to-refocus-cia-from-drone-war.html?smid=nytnow-share&smprod=nytnow&_r=0.
[53] Ibid.
[54] Hakim Almasmari, Margaret Coker, and Siobhan Gorman, “Drone Kills Top Al Qaeda Figure,” The Wall Street Journal, October 1, 2011, http://online.wsj.com/news/articles/SB10001424052970204138204576602301252340820
[55] Mazzetti, “Delay in Effort to Refocus CIA from Drone War.”
[56] Ibid.
[57] Karen DeYoung, “A CIA veteran transforms U.S. counterterrorism policy,” Washington Post, October 24, 2012, http://www.washingtonpost.com/world/national-security/cia-veteran-john-brennan-has-transformed-us-counterterrorism-policy/2012/10/24/318b8eec-1c7c-11e2-ad90-ba5920e56eb3_story.html; Greg Miller, Ellen Nakashima, and Karen DeYoung, “CIA drone strikes will get pass in counterterrorism ‘playbook,’ officials say,” January 19, 2013, http://articles.washingtonpost.com/2013-01-19/world/36474007_1_drone-strikes-cia-director-playbook.; Michael Crowley, “Holder: Obama’s New Drone Strike ‘Playbook’ Has Arrived,” Time, May 22, 2013, http://swampland.time.com/2013/05/22/holder-obamas-new-drone-strike-playbook-has-arrived/.