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Charles Kenworthy: Are Target Assassinations Legal?

[Charles Kenworthy is an ACE contributor]

That the CIA targets terror suspects for assassination should come as no surprise to anyone following the news.  A special set of circumstances, however, led California Representative Jane Harmon to label Anwar al-Awlaki “Terrorist No. 1.”  Al-Awlaki is an American citizen.  He was born in New Mexico to Yemeni parents in 1971.  Although he was raised in Yemen after the age of seven, he attended college in the U.S. before finally deciding to become a religious figure.  Al-Awlaki would eventually turn against the nation of his citizenship due to his distress at the U.S. government’s treatment of Muslims.  His connection to al Qaeda, as well as the Fort Hood shooting, the attempted Christmas airplane bombing, and the Times Square bomb plot prompted Harmon to label him “Terrorist No. 1.”

The most disturbing aspect of the story is not that an American citizen is now “Terrorist No. 1.” It is rather the fact that President Obama has stated that al-Awlaki is on a “kill-or-capture” list, and the fact that the CIA have been authorized to use drones to kill him, if necessary.  The Christian Science Monitor, for its part, sees this as a worrying extension of executive power, which also begs the question:  is this legal?

We can approach that question from a number of different perspectives.  On the one hand, one can look at Al-Awlaki as a terrorist promoting agendas that are hazardous to American interests.  This perspective will be addressed in more detail in the ACE forum, so I will move instead to the historical precedents for such action.

Ronald Sokol, in the Christian Science Monitor, has mentioned that the U.S. set a standard with the Nuremberg and Tokyo war crimes tribunals that would be violated by the targeted killing of Al-Awlaki.  According to Sokol, the message that these trials presented was clear:  even the U.S. government needs to adhere to due process of law in dealing with suspected enemies.3

In the decades that followed Nuremberg and Tokyo however, the disappearance of the static battlefield and rise of actions based upon counterinsurgency has seen the government looking for a loophole out of this Nuremberg standard.  The CIA became the agent that allowed for this loophole. It isn’t hard to see how this happened, especially after an examination of the 1947 National Security Act, the legislation that created the CIA.  But the subsequent sixty-three years of the agency’s history shows that we need to re-evaluate its mission in light of the War on Terror.  Indeed,  in some respects the CIA’s proscribed mission was obsolete the moment it was created.

The History of the CIA

For the purposes of this review, the history of the CIA will be divided into three eras: 1947 to the mid-1970s, the mid-70s to 9/11 – after the Rockefeller and Church committees threw some of the agency’s dirty laundry into the street, and the War on Terror CIA.

According to the National Security Act in 1947, the CIA was tasked exclusively with operations related to collecting foreign intelligence.  The National Security Act also created a prohibition against exercising “police and law enforcement powers” and against “internal security functions”.

Unfortunately the language used in the original CIA mandate was rather vague and resulted in a good deal of creative interpretation.  The agency was tasked with maintaining “‘external security,’” for example. In addition, the National Security Act did not make provisions for how the CIA was to act if the executive branch choose to ignore the CIA mandates outright.

During the sixties and part of the seventies, then, the CIA morphed into a private tool of the executive branch.  The Church committee brought many of these offenses to light in 1975.  This resulted in a backlash against the CIA and increased legislative regulation of foreign intelligence agencies that included increased congressional oversight of officials and the appointment of an Inspector General charged with sharing the operations of the CIA with Congress.  Thus a “new” CIA was born staffed with (in the words of a critic) “‘cautious bureaucrats who avoid the risks that come with taking action, who fill out every form in triplicate’ and put ‘the emphasis on audit rather than action.’”

With the 9/11 attacks, there was outcry that this “new” CIA had been ineffective in protecting the U.S. from the threat posed by al Qaeda.  This resulted in the Intelligence Reform and Terrorism Prevention Act of 2004.  This was a landmark moment for the CIA, as it was the first act to directly address the limits that should be placed on the CIA since 1947 (provisions after Church were carried out exclusively through executive order).  Unfortunately, the act was a landmark in every way except for impact, as it did not address most of the ambiguities regarding the security functions of the CIA, as well as the influence that it could exert domestically.  The climate had changed, however, and the CIA began to resume some of the functions that it had during the old days, including the assassination of terrorist suspects.

Modern Applications and a Need for Further Clarification

Indeed, looking back at the 1947 act, it seems as if it was doomed to fail from the outset.  The act was created due to the overall disgust concerning the state of national intelligence before and during World War II (a condition that allowed for Pearl Harbor to occur seemingly without warning).  Unfortunately, the CIA mandate was obsolete from the day that it went into effect.  The Intelligence Reform and Terrorism Prevention Act was an opportunity to correct these longstanding ambiguities, but unfortunately it did very little and failed to account for technologies that might be employed for information, not to mention the game-changing effect of armed drones.

The thought that went into the original mandate was that wars would be more or less conventional engagements and that the military could be charged with many of the foreign security functions.  The CIA would simply be the eyes and ears.  The Cold War was rarely fought on such battlefields.  Warfare has since moved even further away from this context; current wars often concern organizations concentrated in hotspots receiving support through ill-defined auspices from ill-defined sources.  In this context, the armed forces are too blunt and unwieldy an instrument to be effective. (Al-Awlaki is hiding in a nation that is officially on good terms with the U.S.)  Therefore, there is a need for covert security functions.

The CIA becomes the default agency for these security functions, simply because they already have operatives in the field in opportune positions to collect information.  If these operatives already collect information, than it would seem efficient for them to also act on this information.

Concerning the legality of al-Awlaki’s “capture-or-kill” mandate, there is no reason why the CIA cannot assassinate al-Awlaki; simply put, the mandates that have been placed on the CIA are so ambiguous that it is hard to constitutionally constrain the actions of the CIA in any way.  Any constraints on the agency (or lack thereof) are the symptoms of the times and ultimately subject to the desires of the current administration.

So what can be done to change this situation?  We need a system that clearly defines when it is acceptable for the CIA to use deadly force (and when it is not), and this system needs to be relevant and reproducible.  This system needs to balance the principals of the Constitution as well as the measures needed for efficacy’s sake.  It also needs to correct the erroneous assumptions that went into the original CIA mandate, assumptions that were not corrected in 2004.  It is only with such a re-evaluation that Americans will be able to have a clear conscience with situations like the one surrounding al-Awlaki.