Clip the Agency’s Wings

Among the 9/11 Commission’s 41 recommendations was that "lead responsibility for directing and executing paramilitary operations, whether clandestine or covert, should shift to the Defense Department" to avoid the "creation of redundant, overlapping capabilities and authorities in such sensitive work." President Bush directed Secretary of Defense Donald Rumsfeld and Director of Central Intelligence Porter Goss to review "to what extent implementation of the recommendation is in the interest of the United States." Goss — himself a CIA operative in the 1960s — told the Senate Select Committee on Intelligence: "[Rumsfeld] feels that he has capabilities that are important, and I agree. And I feel I have capabilities that are important, and he agrees. There’s not a lot of disagreement on this."

Rumsfeld and Goss apparently did agree; their formal response to Bush reportedly stated: "Neither CIA nor (Defense Department) endorses the commission’s recommendation on shifting the paramilitary mission or operations. We do not believe change is required in the responsibility of the CIA for foreign intelligence collection and covert action or activities, or that of the DOD for traditional military activities." An anonymous CIA official claimed that Goss "was concentrating on protecting the diminished role of the agency" from the Pentagon’s expansion of paramilitary authorities and resources. Former intelligence officials also contend that as the CIA’s responsibilities remained uncertain during the intelligence community’s reorganizations of 2004 and 2005, Goss wanted to retain the authority for lethal operations, albeit in rare circumstances — at the time, the CIA had conducted only three drone strikes.

Implementing the 9/11 Commission recommendation has been proposed repeatedly over the last nine years, but neither the Bush nor Obama administrations seriously considered it. Subsequently, the lead executive authority for targeted killings became divided between the CIA and Joint Special Operations Command (JSOC) — a subunified command of Special Operations Command. Since 9/11, with a few exceptions, non-battlefield targeted killings have been carried out in Pakistan by the CIA, in Somalia by JSOC, and in Yemen by both. (The CIA also conducted one drone strike in the Philippines in 2006.) Of the approximately 420 targeted killing attempts, the lead executive authority for over 90 percent has been the CIA.

Last month, Daniel Klaidman reported that three senior officials had told him that President Obama would gradually transfer targeted killings to the Pentagon during his second term. Other journalists report that this is not a certainty or that "it would most likely leave drone operations in Pakistan under the CIA," making any transition meaningless since over 80 percent of all U.S. targeted killings have occurred in Pakistan. But if Obama is serious about reforming targeted killing policies, as he has stated, then he needs to sign an executive order transferring lead executive authority for non-battlefield targeted killings from the CIA to the Defense Department. Doing this has three significant benefits for U.S. foreign policy.

First, it would increase the transparency of targeted killings, including what methods are used to prevent civilian harm. Strikes by the CIA are classified as Title 50 "covert action," which under law are "activities of the United States Government…where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include traditional…military activities." CIA operations purportedly allow for deniability about the U.S. role, though this rationale no longer applies to the highly-publicized drone campaign in Pakistan, which Obama personally acknowledged in January 2012. Beyond adjectives in public speeches ("methodical," "deliberate," "not willy-nilly"), the government does not, and cannot, describe the procedures and rules for CIA targeted killings.

JSOC operations in Somalia and Yemen, on the other hand, fall under the Title 10 "armed forces" section of U.S. law, which the White House reports as "direct action" to Congress. The United States has also acknowledged clandestine military operations to the United Nations "against al-Qaida terrorist targets in Somalia in response to on-going threats to the United States." Moreover, JSOC operations are guided by military doctrine, available to the public in Joint Publication 3-60 (JP 3-60): Joint Targeting. (While the complete 2007 edition can be found online, only the executive summary of the most-recent version, released on January 31, is available. If the Joint Staff’s J-7 Directorate for Joint Force Development posted this updated edition in its entirety — or fulfilled my FOIA request [case number 13-F-0514] — that would be appreciated.) JP 3-60 matters because it details each step in the targeting cycle, including the fundamentals, processes, responsibilities, legal considerations, and methods to reduce civilian casualties. This degree of transparency is impossible for CIA covert actions.

Second, it would focus the finite resources and bandwidth of the CIA on its primary responsibilities of intelligence collection, analysis, and early warning. Last year, the President’s Intelligence Advisory Board — a semi-independent executive branch body, the findings of which rarely leak — reportedly told Obama that "U.S. spy agencies were paying inadequate attention to China, the Middle East and other national security flash points because they had become too focused on military operations and drone strikes." This is not a new charge, since every few years an independent group or congressional report determines that "the CIA has been ignoring its core mission activities." But, as Mark Mazzetti shows in his indispensable CIA history, the agency has evolved from an organization once deeply divided at senior levels about using armed drones, to one that is a fully functioning paramilitary army. As former senior CIA official Ross Newland warns, the agency’s armed drones program "ends up hurting the CIA. This just is not an intelligence mission."

There is no longer any justification for the CIA to have its own redundant fleet of 30 to 35 armed drones. During White House debates of CIA requests in 2009, Gen. James Cartwright, the vice chairman of the Joint Chiefs of Staff, repeatedly asked: "Can you tell me why we are building a second Air Force?" Obama eventually granted every single request made by then-Director of Central Intelligence Leon Panetta, adding: "The CIA gets what it wants." With this year’s proposed National Intelligence Program budget scheduled to fall by 8 percent, an open checkbook for Langley is not sustainable or strategically wise.

Third, it would provide clear and unified congressional oversight. CIA drone strikes are reported to the congressional intelligence committees. Sen. Dianne Feinstein confirmed that the Senate’s intelligence committee, which she chairs, receives post-strike notifications, reviews video footage, and holds monthly meetings to "question every aspect of the program." Rep. Mike Rogers, chair of the House Permanent Select Committee on Intelligence, has claimed repeatedly that he reviews every single counterterrorism airstrike, whether conducted by the CIA or JSOC. This raised eyebrows among some congressional and Pentagon staffers, since while the House committee can statutorily exercise oversight of tactical military activities, its authority does not extend JSOC operations. Either oversight is duplicated among the various committees, or there remains a misunderstanding over who is mandated to oversee which operations.

Meanwhile, as required by law since March 2012, all JSOC counterterrorism operations — including a "global update on activity within each geographic combatant command" — have been reported at a minimum every three months to the congressional armed services committees. Although the chairs of those committees have not publicly described their roles, their oversight of JSOC operations has been routine and robust. Administration officials aware of how both entities report their activities to their respective committees, say that JSOC makes available a broader range of information than the CIA.

Some policymakers question if consolidating targeted killings within the Pentagon will make any substantive difference. Feinstein recently expressed her skepticism:

We watch the intelligence aspect of the drone program…literally dozens of inspections. Following the intelligence, watching the Agency exercise patience and discretion, specifically to prevent collateral damage. The military program has not done that nearly as well. I think that’s fact. I think we even hit our own base once. So, I would have to really be convinced that the military would carry it out that way.

It is unclear what incident that Feinstein is referring to. In 2011, a military-controlled Predator drone accidentally killed two U.S. servicemembers in Afghanistan in a friendly-fire incident unrelated to the weapons platform. Furthermore, if there is a database that compares the procedures and results of CIA and Pentagon drone strikes, a declassified version should be made public.

Groups like Human Rights Watch and the Center for Civilians in Conflict also correctly warn that JSOC is itself a highly-secretive organization and that CIA and military teams operate jointly in pursuit of the same individual. For example, while a CIA drone killed Anwar al-Awlaki in September 2011, military aircraft stationed on nearby carriers would have been deployed if the agency drones failed. It is unrealistic to fully disentangle the CIA and the Pentagon, as military operations routinely receive targeting information from elements within the Intelligence Community. The military, however, can be much more transparent than the CIA, if the president and secretary of defense make this a priority. (Unfortunately, not one senator asked Hagel his opinion of drone strikes during his confirmation hearing.) Military officers, even from the special operations community, are far more candid and honest about the benefits and limits of targeted killings than civilian intelligence officials.

The Obama administration has two central objectives for its promised targeted killings reforms: preventing constraints on its ability to conduct lethal operations, and setting precedents for the use of armed drones by other states. By law, institutional culture, and customary practice, drone strikes conducted by the CIA cannot reach even the minimum thresholds of transparency and accountability required to achieve either objective. Thus, if President Obama is serious about these reforms, he should implement the 9/11 Commission’s unfulfilled recommendation and make the military responsible for America’s drone campaigns.