Targeted Killing: Drones

No More Drones For CIA

By Jack Goldsmith
Wednesday, March 20, 2013, 5:45 AM

That is the title of Dan Klaidman’s important story:

Three senior U.S. officials tell The Daily Beast that the White House is poised to sign off on a plan to shift the CIA’s lethal targeting program to the Defense Department. . . .The proposed plan would unify the command and control structure of targeted killings, and create a uniform set of rules and procedures. The CIA would maintain a role, but the military would have operational control over targeting. Lethal missions would take place under Title 10 of the U.S. Code, which governs military operations, rather than Title 50, which sets out the legal authorities for intelligence activities and covert operations.

Quick reactions:

(1) It is not clear what is at stake here, especially if, as Marc Ambinder reports, the Air Force currently operates and “presses the button that releases the missile” on CIA drones.  At least two things appear to be involved in the shift: (a) CIA will no longer be determining who is killed, and (b) CIA might no longer “own” armed drones (Ambinder reports that CIA has 30 UAVs, but it is unclear how many are armed).  Presumably CIA will still play a heavy role in the intelligence side of drone strikes – which, as I understand it, is 99% of the operation.  In that light, it is unclear what Klaidman entails when he says that “a potential downside of the Agency relinquishing control of the program was the loss of a decade of expertise that the CIA has developed since it has been prosecuting its war in Pakistan and beyond,” and adds that “for a period of transition, CIA operators would likely work alongside their military counterparts to target suspected terrorists.”

(2) Compared to CIA's lethal drone operations, DOD’s lethal drone operations are not more transparent to the public and are less transparent to Congress.  But by shifting all lethal operations from CIA to DOD, and from Title 50 to Title 10, the USG creates at least the theoretical possibility of greater transparency, for the covert action excuse for secrecy, and any promise of deniability to foreign governments, will no longer be a bar to transparency.  It does not follow that DOD will in fact be more transparent, and one result of the shift might be an overall loss in public and congressional transparency.  We will see.

(3)  Relatedly, one cost of the transition from CIA to DOD, at least in terms of removing options to the USG, is that drone strikes can no longer be covert.  (Technically, Title 50 permits DOD to do covert actions.  But despite DOD participation in the Bin Laden raid, there are powerful cultural aversions in DOD to covert, as opposed to clandestine, operations.)  Might that mean USG drone strikes in fewer countries, because some countries will not permit such strikes on any other than strictly deniable terms?  I obviously do not know.  But recall what Robert Gates said in the context of wikileaks: “The fact is, governments deal with the United States because it’s in their interest, not because they like us, not because they trust us, and not because they believe we can keep secrets. ”

(4) The transition might tamp down public and especially international complaints about the USG drone program, as many of these complaints have been directed toward CIA as opposed to DOD drone strikes.  To the extent that complaints are about the absence of a tradition of command responsibility within CIA and with a desire for expert compliance with the laws of war in DOD, they might be assuaged.  (I have no reason to think that CIA strikes have not complied with the laws of war, but the critics appear to believe that such compliance is best guaranteed by DOD.)  Some of the complaints about CIA drone strikes, however, rest on the misimpression that DOD is more open to the public and more accountable to Congress than CIA.  If the transition to DOD occurs, we can expect to see more international scrutiny of and complaints about DOD strikes.