WASHINGTON -- After last week’s tragic news that an errant CIA drone strike had mistakenly taken out an American and an Italian hostage in Pakistan, critics of the spies’ program -- who have long argued the targeted killings should strictly fall in the military’s wheelhouse -- are rallying to finally take the drone trigger out of the agency’s hands.
But that effort to transition the program may not be as simple as critics think. After all, drone operations are a lot easier to run when you don’t have to follow all the rules.
The crux of the debate over who should control the drone program has watered down to that one core argument for years. The drone program itself splits off into two arms: the CIA runs a covert program governed by U.S. Title 50, and the military runs a program that can either be overt or clandestine under the military’s Title 10. And simply by virtue of the differences between overt and covert action, the White House has run into hefty roadblocks in its supposed crusade to end the CIA’s covert side of the program.
“There are three relevant categories: overt -- or unclassified -- clandestine, and covert. Clandestine operations, such as some special operations missions, and covert actions are both classified. But covert actions are also supposed to be deniable and unattributable to the [U.S. government],” explained Steven Aftergood, director of the project on Government Secrecy for the Federation of American Scientists. “Covert and clandestine are both classified, but 'covertness' emphasizes the secrecy of the sponsor, while 'clandestine' programs emphasize the secrecy of the operation.”
The fierce push by the CIA’s critics to shift the program to the sole control of the Pentagon gives the impression that there’s a cut and dry separation between this “overt” and “covert” line. But in a post-9/11 world, in which the CIA is running paramilitary operations and the military has a robust intelligence gathering arm, those lines have blurred. And Washington still isn’t entirely sure what that means for secret operations.
The struggle over the targeted killing operations -- and the administration’s mixed messages on the dueling standards -- hit at a larger reality that underscores many of the Obama White House’s most profound intelligence crises. The CIA traditionally operates outside the rules. And while the Obama administration may publicly tout a desire to move away from that shadowy world, its national security goals have required it to stay there.
“Having a covert program gives the Obama administration maybe more flexibility,” said Rachel Stohl, a senior associate at the Stimson Center who works on drone and armament issues. “I’m not sure that they would characterize it as being outside the rules.”
But simply by virtue of its role, the CIA has historically played outside the lines.
“The CIA has never publicly committed to following international law, including the laws of war as a matter of its legal obligation,” said Naureen Shah, director of the Human Rights and National Security Program at Amnesty International. “What that means is that when there’s a rule that says you can’t target people who are already wounded … [that] you can’t target kids or civilians generally, we don’t have clear commitment from the CIA to abide by that as a matter of its legal obligations.”
The CIA declined to comment for this story. The White House did not immediately respond to a request for comment.
Covert actions, by definition, are not allowed to violate U.S. law or the Constitution, though the agency’s post-9/11 torture program -- which functioned under secret legal memos justifying techniques that were later qualified as torture -- illustrated the delicate legal tap dances that can skirt those requirements.
"All intelligence activities of the agency must be properly authorized pursuant to, and must be conducted in accordance with, the full body of national security law that has been put in place over the six-plus decades since the creation of the CIA," former CIA general counsel Steve Preston told Harvard Law School in a 2012 address. "And all such activities are subject to strict internal and external scrutiny,"
Additionally, the agency’s covert programs aren’t subject to the same public transparency standards as an overt program, though there are strict requirements for notification to the Hill’s intelligence committees.
“The administration likes to say that it’s being as transparent as possible. On the other hand, it won’t disclose basic information about who is being killed in drone strikes,” Shah added.
Indeed, for all its talk on welcoming the relative sunlight of the Pentagon, the Obama administration has balked at even keeping the CIA within lines the White House itself drew, secretly waiving certain targeting rules for the spies.
The White House announced in 2013 that it would be tightening rules for drone targeting, amid widespread criticism and reports of sloppy strikes taking out civilians. But according to recent reporting in the Wall Street Journal, the Oval Office signed a secret waiver exempting the CIA’s strikes in Pakistan from those tightened standards.
“Whose rules does the CIA believe it has to follow?” Shah said. “If it doesn’t have to follow the laws of war, or international human rights law, if it’s not covered under the president’s rules for restricting the use of drones, then what rules is the CIA following?”
Orchestrating this clean transfer of drone operations to the Pentagon -- which drone critics and the administration have suggested is the ultimate goal -- would mean trade-offs. The Obama administration may simply not be willing to make them.
“It’s more frustrating under this administration, given that their public face is to hold up the values of transparency and accountability,” said Stohl. “Then when it gets into the implementation of that, it’s either nonexistent or much weaker.”
After all, Stohl said, previous administrations didn’t even bother pretending to value transparency and accountability. “You weren’t very disappointed,” she said.