Covert Action

Waiving the "Imminent Threat" Test for CIA Drone Strikes in Pakistan?

By Robert Chesney
Monday, April 27, 2015, 12:49 AM

[Update: Ryan Goodman has an excellent post here noting that a January 2013 WaPo article anticipated that CIA would get a waiver for Pakistan ops, albeit not necessarily a waiver specific only to the imminent-threat-to-US-persons rule.]

Adam Entous has an important story in the Wall Street Journal tonight, one that I suspect will get a lot of attention Monday morning. It certainly should. He reports that a much-discussed May 2013 Presidential Policy Directive adopting various policy constraints for the use of lethal force outside areas of "active combat operations" also included a classified annex exempting CIA drone operations in Pakistan from at least one of those constraints. Specifically, it exempted CIA from the requirement that force be used in such places "only against a target that poses a continuing, imminent threat to U.S. persons."

I had long wondered about where Pakistan fit into the May 2013 PPD model, and had thought it might be the case that at least some parts of Pakistan were simply assimilated to Afghanistan in order to avoid categorizing them as as outside of an area of active combat operations (see my speculation at point 5 of this post a few days ago). That approach would have avoided all the constraints in the PPD, however, including the requirement that attacks be launched only where it is near certain that there will be no collateral damage. Interestingly, Adam's article indicates that the collateral-damage constraint remained in place under the partial-exemption model that the administration actually employed; it was just the "imminent threat to U.S. persons" requirement that was waived.

What was at stake with that waiver? I suspect most commentary will assume that this is about the degree of certainty and temporal exigency at stake with a particular individual, but I don't think that is it at all. I say that because my understanding is that the administration does not construe "imminent" to mean anything like strict temporal exigency such as an ordinary person would assume. Instead, as has been made clear in a number of speeches and other writings, "imminent threat" in this setting means something much closer to "continuing threat." So, if that's right, why bother with the waiver? I think it must be driven primarily by the other aspect of the PPD's imminent threat rule--i.e., the requirement that the threat concern U.S. persons in particular, as opposed to Afghans or other allies or simply unknown potential victims. But perhaps I'm wrong, and as implemented these days there is thought to be a real bite to the temporal exigency element as well; I hope journalists working these issues will pay particular attention to that question.

It's late, so I'll wrap up: It would have been much better to have been clear from the outset that the PPD's constraints were not in fact as broadly applicable as was made to seem. It was forseeable that the classified waiver would become known before too long, and now that it has the administration will likely be blasted for it.