Drone critics wanted greater transparency. Careful what you wish for.
- By Matthew WaxmanMatthew Waxman is a professor at Columbia Law School, a fellow at the Council on Foreign Relations, and a member of the Hoover Institution Task Force on National Security and Law.
According to Daniel Klaidman at the Daily Beast, "[T]he White House is poised to sign off on a plan to shift the CIA’s lethal targeting program to the Defense Department." Many critics of the government’s targeted-killing policy have been calling for such a move, hoping that it would (in Klaidman’s words) "toughen the criteria for drone strikes, strengthen the program’s accountability, and increase transparency." That may be. But if what those critics really want is to end the practice of killing suspected al Qaeda fighters with unmanned aircraft far from active combat zones, they should be careful what they wish for.
Although technically "covert" and carried out under statutory and presidential authorities designed to preserve "plausible deniability," it’s an open secret that the CIA has been conducting counterterrorism strikes in places like Pakistan and Yemen. The U.S. military conducts similar strikes, usually through Joint Special Operations Command, including in Yemen and Somalia. Many argue that these strikes are illegal or counterproductive — regardless of who conducts them — because they deny targeted suspects legal process, violate national sovereignty, cause collateral damage, and fuel radicalism. Others believe, however, that these problems are compounded when the CIA is in charge because of the secrecy and impunity with which it operates.
In truth, critics often underestimate oversight of CIA activities and overestimate the openness of military operations. Even if the Pentagon conducts all U.S. drone strikes, the operational details will still be shrouded in secrecy, the CIA will still provide targeting information, and much of the congressional oversight will still be conducted behind closed doors (though it will shift from the intelligence committees to the armed services committees). The CIA is also subject to some statutory congressional reporting requirements that the Defense Department is not. That said, moving all strikes under Defense Department control and eliminating their officially covert status will probably allow executive branch officials and members of Congress to speak more clearly and openly about general policy in this area.
With regard to the legal rules that govern targeting, it may be that shifting operations to the Defense Department will promote stricter compliance. In a 2012 speech, the CIA general counsel stated that the agency conducts its operations "in a manner consistent with the…basic principles in the law of armed conflict" — not that the CIA is legally required to comply with the rules — which led many to wonder whether the agency was operating outside their bounds. The military is also much better practiced than the CIA in applying the law of armed conflict and assessing collateral damage. Even if the CIA has in reality been fully compliant, it is in the U.S. interest to promote these international legal rules by communicating unambiguously and demonstrating its own normative commitment to them. Those are things that the military is much better able to do, on account of tradition, institutional culture, and legal requirements.
So, moving operations to the Pentagon may modestly improve transparency and compliance with the law but — ironically for drone critics — it may also entrench targeted-killing policy for the long term.
For one thing, the U.S. government will now be better able to defend publicly its practices at home and abroad. The CIA is institutionally oriented toward extreme secrecy rather than public relations, and the covert status of CIA strikes makes it difficult for officials to explain and justify them. The more secretive the U.S. government is about its targeting policies, the less effectively it can participate in the broader debates about the law, ethics, and strategy of counterterrorism.
Many of the criticisms of drones and targeting are fundamentally about whether it’s appropriate to treat the fight against al Qaeda and its allies as a war — with all the legal authorities that flow from that, like the powers to detain and kill. The U.S. government can better defend its position without having to maintain plausible deniability of its most controversial program and without the negative image (whether justified or not) that many audiences associate with the CIA. Under a military-only policy, the United States would also be better positioned to correct lingering misperceptions about targeted killings and to take remedial action when it makes a mistake.
Moreover, clearer legal limits and the perception of stricter oversight will make drone policy more legitimate in the public’s eyes. Polling shows that Americans support military drone strikes more strongly than CIA ones, so this move will likely strengthen political backing for continued strikes. Consider the case of Guantanamo: The shuttering of black sites, as well as the Supreme Court’s decisions that detainees there can challenge their detention in federal court and that all detainees are protected by the Geneva Convention, have muted criticism of the underlying practice of detention without trial. Here, too, the proposed reforms would put the remaining policy on stronger footing.
It’s difficult to assess fully the pros and cons of getting the CIA out of the lethal targeting business because the government has not explained why it has been using the CIA for some operations and not others. As to efficacy — how the advantages of targeted strikes match up against the costs — strategy should dictate which agency should be responsible, not the other way around. That said, the result of shifting control to the Pentagon will likely be a more sustainable, if perhaps more restrained and formalized, long-term policy of targeted killing.