Targeted killings are usually conducted either by the CIA under the Covert Action Statute, or by the Department of Defense (namely, by the Joint Special Operations Command (JSOC)). And, for many recent targeting operations, both organizations have been involved. When the CIA leads a targeted killing, a formal and rigorous review is undertaken, pursuant to statute and with the involvement of both the President and Congress. In contrast, if the targeting is conducted by the military, the required decisionmaking processes and oversight mechanisms are slightly different. The recent trend whereby the CIA and the military increasingly engage in missions together has led to a muddling of oversight authorities and to additional confusion in determining what process is required.
II. Targeted Killings Conducted by the CIA – The Covert Action Statute
When the CIA engages in a targeting, it is undertaken as a “covert action,” which is defined by the Covert Action Statute (CAS) as “an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly.” See the National Security Act of 1947, Sec. 503(e), 50 U.S.C. § 413b(e). The President must authorize any covert action through a written presidential finding, explaining why the activity is “necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States.” Id. § 413b(a).
The CAS mandates that the President inform the Senate and House Intelligence Committees of all covert actions, and turn over any U.S. government materials that those committees request. Id. § 413b(b). In general, the President must report any covert action to the Intelligence Committees as soon as possible after it is approved, before the action begins. However, in “extraordinary circumstances affecting vital interests of the United States,” the President may choose to inform only the members of the “Gang of Eight”---comprised of the chairmen and ranking minority members of each of the Intelligence Committees, as well as the Speaker and minority leader of the House and the majority and minority leaders of the Senate---rather than the full committees. Id. § 413b(c). In the event that the President decides to use this “extraordinary” route, he or she must provide written justification for limiting disclosure to the Gang of Eight. Id. § 413b(c).
The CAS thus seems to give Congress a significant oversight role in the CIA’s targeted killing decisionmaking process. But in reality, Congress arguably has far less power to influence covert actions than one might at first think. For example, L. Britt Snider highlights that, although the congressional committees may serve in an advisory capacity to the President, they cannot veto covert actions. And, while one might argue that Congress can control targeted killings through its power of the purse, Snider counters that Congress’s influence via appropriations is limited, as the President can use the Contingency Reserve Fund to carry out covert actions without explicit congressional approval.
Moreover, the judiciary’s oversight over CIA covert actions---as well as judicial review of the Executive’s compliance with CAS---is also quite limited. In particular, strict standing requirements, the political question doctrine, the state secrets privilege, and courts’ invocation of “equitable discretion” are likely impediments to the success of any challenge to a CIA covert action in U.S. courts.
Consider, for instance, the case of Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (2010). At issue in that case was the U.S. government's then-alleged placement of Anwar Al-Aulaqi, a dual U.S.-Yemeni citizen hiding in Yemen and with purported ties to al Qaeda in the Arabian Peninsula, on one of its targeted killing lists. Al-Aulaqi’s father challenged that action, seeking to enjoin the U.S. government from targeting his son. The district court, however, dismissed his case, finding that he had no standing to sue and that, in any event, the case was non-justiciable under the political question doctrine. In particular, the court felt that “[j]udicial resolution of the ‘particular questions’ posed” would require [it] to decide complex issues such as "whether ... Anwar Al–Aulaqi’s alleged terrorist activity render[ed] him a concrete, specific, and imminent threat to life or physical safety" and "whether there are means short of lethal force that the United States could reasonably employ to address any threat that Anwar Al–Aulaqi poses to U.S. national security interests.” These questions, the court said, would require the court take into account military, strategic, and diplomatic considerations – e.g. to “assess the merits of the President’s (alleged) decision to launch an attack on a foreign target” – that it was simply not competent to handle.
Likewise, although the United States is party to a number of treaties that may place some restrictions on covert actions---namely, the International Covenant on Civil and Political Rights---unless such treaties are self-executing, or have otherwise been implemented domestically, those treaties are arguably not a part of domestic federal law and will not be enforced by courts. Cf. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 809-10 (D.C. Cir. 1984).
III. Targeted Killings Conducted by the Military---The CAS & Other Oversight
The U.S. military---in particular, the Special Operations Command (SOCOM), and its subsidiary entity, the Joint Special Operations Command (JSOC)---is responsible for carrying out military-led targeted killings.
Military-led targeted killings are subject to various legal restrictions, including a complex web of statutes and executive orders. For example, because the Covert Action Statute does not distinguish among institutions undertaking covert actions, targeted killings conducted by the military that fall within the definition of “covert action” set forth in 50 U.S.C. § 413(b) are subject to the same statutory constraints as are CIA covert actions. 50 U.S.C. § 413b(e). However, as Robert Chesney explains, many military-led targeted killings may fall into one of the CAS exceptions---for instance, that for traditional military activities---so that the statute’s requirements will not always apply to military-led targetings. Such activities are exempted from the CAS’s presidential finding and authorization requirements, as well as its congressional reporting rules.
Because such unacknowledged military operations are, in many respects, indistinguishable from traditional covert actions conducted by the CIA, this exception may provide a “loophole” allowing the President to circumvent existing oversight mechanisms without substantively changing his operational decisions. However, at least some military-led targetings do not fall within the CAS exceptions, and are thus subject to that statute’s oversight requirements. For instance, Chesney and Kenneth Anderson explain, some believe that the traditional military activities exception to the CAS only applies in the context of overt hostilities, yet it is not clear that the world’s tacit awareness that targeted killing operations are conducted (albeit not officially acknowledged) by the U.S. military, such as the drone program in Pakistan, makes those operations sufficiently overt to place them within the traditional military activities exception, and thus outside the constraints of the CAS.
Chesney asserts, however, that despite the gaps in the CAS’s applicability to military-led targeted killings, those targetings are nevertheless subject to a web of oversight created by executive orders that, taken together, largely mirrors the presidential authorization requirements of the CAS. But, this process is not enshrined in statute or regulation and arguably could be changed or revoked by the President at any time. Moreover, this internal Executive Branch process does not involve Congress or the Judiciary in either ex ante or ex post oversight of military-led targeted killings, and thus, Philip Alston asserts, it may be insufficient to provide a meaningful check against arbitrary and overzealous Executive actions.
IV. Implications of the Convergence Trend
Recently, the CIA and military more frequently undertake targeted killing missions together, and the distinction between CIA- and military-led operations is blurring.
This convergence trend may make it difficult to determine whether a given targeted killing is subject to the constraints of the Covert Action Statute or is instead subject only to internal Executive Branch restrictions. Nicholas Schmidle asserts that the targeted killing of Osama bin Laden, which was conducted jointly by the CIA and military, is particularly illustrative of the oversight problems caused by the convergence trend.
Likewise, the convergence trend may be harmful because it means the Executive will choose to use the military, rather than the CIA, to conduct targeted killings, such that oversight of its targeting program will take place almost solely within the Executive Branch. This, critics argue, decreases inter-branch accountability and increases the risk of ad hoc decisionmaking. Consequently, Chesney explains, many demand a retooling of the pertinent legal architecture in light of such trends and concerns so as to increase accountability and adherence to the rule of law.
V. Further Reading
- Philip Alston, The CIA and Targeted Killings Beyond Borders, 2 Harv. Nat’l Sec. J. 283 (2011).
- Kenneth Anderson, Targeted Killing and Drone Warfare: How We Came to Debate Whether There Is a ‘Legal Geography of War, in Future Challenges in National Security and Law (Peter Berkowitz ed., 2011).
- Robert Chesney, Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate, 5 Journal of National Security Law & Policy 539 (2012).
- Alfred Cumming, Sensitive Covert Action Notifications: Oversight Options for Congress, Congressional Research Service (Jul. 7, 2009).
- Dana Priest & William M. Arkin, ‘Top Secret America’: A Look at the Military’s Joint Special Operations Command, Wash. Post (Aug. 30, 2011).
- Nicholas Schmidle, Getting Bin Laden, The New Yorker, (Aug. 8, 2011).
- L. Britt Snider, The Agency and the Hill: CIA’s Relationship with Congress, Center for the Study of Intelligence (2004).
- S. Rep. No. 102-85, at 46 (1991).
- Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009).