Targeted Killing: Drones

John Brennan, Diminishing the CIA Role in Drone Strikes, and Other Key Items in the 2nd Post Article

By Robert Chesney
Wednesday, October 24, 2012, 11:57 PM

[Note: I'd originally indicated that Greg Miller wrote this second piece in the Post series, but in fact it was Karen de Young -- my apologies to Karen! For the sake of completeness, the first piece was by Greg and supported by research from Karen, Craig Whitlock, and Julie Tate.  The second piece is by Karen, and supported by Greg and Julie.  We shall see as to the third...]

The second installment in the three-part Post series on Obama administration CT policy is here, and it is in large part a profile of John Brennan.  My (numerous) comments follow:

Pre-planning matters.  First--and this comment is as much or more about the first in the series as it is about the second installment--I do want to underline how important it is for the government to indeed have a disciplining tool along the lines of the Disposition Matrix. That is, I think it should go without saying that whatever mix of tools you choose to rely on in your CT policy, you darn well better have a systematic and thorough approach to thinking through how those tools might need to be brought to bear in foreseeable scenarios.  If this wasn't actually being done prior to development of the Disposition Matrix, well, it is a good thing indeed that it's now being done.  It's simply a matter of competent management of the enterprise, in my view, entirely separate from policy decisions regarding which tools will be made available as options.

Getting the CIA out of the lethal force business?  Second, I was struck by this line in today's piece:

Brennan is leading efforts to curtail the CIA’s primary responsibility for targeted killings. Over opposition from the agency, he has argued that it should focus on intelligence activities and leave lethal action to its more traditional home in the military, where the law requires greater transparency.

This is interesting on a couple of levels.  Most obviously, it is very interesting that Brennan might be actively resisting the convergence trend that has led to such heavy CIA involvement in the use of force.  The 9/11 Commission famously had recommending leaving such activities to the military, but to little effect given lack of support from either the Agency or the Pentagon at the time.  It doesn't seem from Young's piece that this has changed, but it is notable that Brennan has now been publicly depicted as supporting at least something like that view.  It will be interesting, to say the least, to see whether this goes anywhere over time. 

Just how would this produce greater transparency?  Separately, note that last clause--" where the law requires greater transparency."  That's an interesting claim, to say the least.  Whatever else you can say about covert action under Title 50, it does come with statutory obligations to report to the Intelligence Committtees, not to mention the requirement of a presidential finding that in the process of coming into being may give the interagency process some amount of input.  How about military uses of force?  Well, when it's overt, it is of course transparent as can be.  But if the use of force is carried out on the basis that the US sponsoring role is not meant to be acknowledged or apparent, and if the operation avoids "covert action" categorization by virtue of being "traditional military activity," then I would think that, if anything, you end up with less transparency.  Certainly there would be no public acknowledgment, by stipulation, and hence the only transparency (other than leaks or anonymous statements to reporters, like in this very story) would be vis-a-vis Congress...but once we are talking about TMA (as we probably would be with at least some of these activities should CIA give way to, say, JSOC), there would be no statutory obligation to report to anyone.  Almost certainly there would actually be reporting to SASC and HASC at some level, of course, despite the lack of statutory compulsion.  But my bottom line is that I have a hard time seeing how the proposed change would lead to more transparency.  Indeed, given that one tends to see one heck of a lot more information leak out of (or about) CIA than one does about JSOC, well, I'd think you'd end up with a bit less public understanding of just what might be going on.  Which for some will be a feature, rather than a bug, in this proposal.

All that said, later in the piece we get a bit more detail, and a hint that the idea might be not simply to shift CIA lethal force into all-military hands, but also to limit the use of lethal force to situations in which the US role will in fact be acknowledged (thus circumventing the entire TMA issue outlined above):

Some intelligence officials said Brennan has made little substantive effort to shift more responsibility to the military. But Brennan and others described a future in which the CIA is eased out of the clandestine-killing business, and said the process will become more transparent under Defense Department oversight and disclosure rules.

“Deniable missions” are not the military norm, one official said.

Yep, that would certainly take care of the transparency issue.  Of course, there are places where the host state's consent might be conditioned on not acknowledging the US role, but the piece separately suggests that no one is proposing to entirely rule out periodic exceptions to allow covert action in such cases.  But isn't that how we got to where we are in Pakistan in the first place?

Tying the hands of a future administration? Next, I would love to know a bit more about what the administration has in mind here:

As the war against al-Qaeda and related groups moves to new locations and new threats, Brennan and other senior officials describe the playbook as an effort to constrain the deployment of drones by future administrations as much as it provides a framework for their expanded use in what has become the United States’ permanent war.

It's not entirely obvious to me from the two articles just how the Disposition Matrix system would serve to limit the decisions of future administration...though I think that the idea might simply be to institutionalize theprocess of considering other alternatives systematically.  In that respect, I note that the piece goes on to suggest that there is a sequence involved in considering which tool to use in a given case:

As targets move to different locations, and new threats “to U.S. interests and to U.S. persons and property” are identified in Africa and elsewhere, Brennan described a step-by-step program of escalation. “First and foremost, I would want to work through local authorities and see whether or not we can provide them the intelligence and maybe even give them some enhanced capability, to take action to bring that person to justice,” he said.

For those governments that are “unwilling or unable” to act, he said, “then we have an obligation as a government to protect our people and if we need then to take action ourselves . . . we look at what those options are as well.”

Quasi-acknowledgment of covert action: My last comment:  this article is shot-through with statements by unnamed officials discussing CIA drone strikes, including specific examples.  This can't be helpful for the government's position in the drone-related FOIA litigation, though I suppose its not different in kind from past statements of a similar kind.