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Drone Wars

by Daniel Klaidman
Drone Wars

John Moore—AFP

The Obama administration is poised to shift the CIA’s drone program to the Pentagon.

[dropcap]A[/dropcap]t a time when controversy over the Obama administration’s drone program seems to be cresting, the CIA is close to taking a major step toward getting out of the targeted-killing business. Three senior U.S. officials tell Newsweek 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 move could potentially toughen the criteria for drone strikes, strengthen the program’s accountability, and increase transparency. Currently, the government maintains parallel drone programs, one housed in the CIA and the other run by the Department of Defense. 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. “This is a big deal,” says one senior administration official who has been briefed on the plan. “It would be a pretty strong statement.”

Officials anticipate a phased-in transition in which the CIA’s drone operations would be gradually shifted over to the military, a process that could take as little as a year. Others say it might take longer but would occur during President Barack Obama’s second term. “You can’t just flip a switch, but it’s on a reasonably fast track,” says one U.S. official. During that time, CIA and Department of Defense operators would begin to work more closely together to ensure a smooth handoff. The CIA would remain involved in lethal targeting, at least on the intelligence side, but would not actually control the unmanned aerial vehicles. Officials told Newsweek that a potential downside of the agency’s 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. At least for a period of transition, CIA operators would likely work alongside their military counterparts to target suspected terrorists.

The policy shift is part of a larger White House initiative known internally as “institutionalization,” an effort to set clear standards and procedures for lethal operations. More than a year in the works, the interagency process has been driven and led by John Brennan, who until he became CIA director recently was Obama’s chief counterterrorism adviser. Brennan, who has presided over the administration’s drone program from almost the first day of Obama’s presidency, has grown uncomfortable with the ad hoc and sometimes shifting rules that have governed it. Moreover, Brennan has publicly stated that he would like to see the CIA move away from the kinds of paramilitary operations it began after the September 11 attacks, and return to its more traditional role of gathering and analyzing intelligence.

Lately, Obama has signaled his own desire to place the drone program on a firmer legal footing, as well as to make it more transparent. He obliquely alluded to the classified program during his State of the Union address in January. “In the months ahead,” he declared, “I will continue to work with Congress to ensure that not only our targeting, detention, and prosecution of terrorists remain consistent with our laws and systems of checks and balances, but that our efforts are even more transparent to the American people and to the world.”

Shortly after taking office, Obama dramatically ramped up the drone program, in part because the government’s targeting intelligence on the ground had vastly improved and because the precision technology was very much in line with the new commander-in-chief’s “light footprint” approach to dealing with terrorism. As the Al Qaeda threat has metastasized, U.S. drone operations have spread to more remote, unconventional battlefields in places like Yemen and Somalia. With more strikes, there have been more alleged civilian casualties. Adding to the mounting pressure for the administration to provide a legal and ethical rationale for its targeting polices was the killing of Anwar al-Awlaki, a senior commander of Al Qaeda’s Yemen affiliate, who also happened to be a U.S. citizen. (Two weeks later, his 16-year-old son was killed in a drone strike, which U.S. officials have called an accident.) The recent nomination of Brennan to head the CIA became a kind of proxy battle over targeted killings and the administration’s reluctance to be more forthcoming about the covert program. At issue were a series of secret Justice Department legal opinions on targeted killing that the administration had refused to make public or turn over to Congress.

It looks like the White House may now be preparing to launch a campaign to counter the growing perception—with elites if not the majority of the public—that Obama is running a secretive and legally dubious killing machine. For weeks, though the White House has not confirmed it, administration officials have been whispering about the possibility that Obama would make a major speech about counterterrorism policy, including efforts to institutionalize—but also reform—the kinds of lethal operations that have been a hallmark of his war on terrorism. With an eye on posterity, Obama may feel the time has come to demonstrate publicly that his policies, for all of the criticism, have stayed within the law and American values. “Barack Obama has got to be concerned about his legacy,” says one former adviser. “He doesn’t want drones to become his Guantánamo.”

But for the president to step out publicly on the highly sensitive subject of targeted killings, he’s going to have to do more than simply give an eloquent speech. An initiative like shifting the CIA program to the military, as well as other aspects of the institutionalization plan, may be just what he needs.

How does the CIA’s targeted-killing program differ from the military’s—and what are the implications of shifting one program into the other? Perhaps most important is that the CIA’s program is “covert”—which is to say it is not only highly classified, it’s deniable under the law. That means the CIA, in theory, can lie about the existence of the program or about particular operations. The military’s targeted killing program, however, is “clandestine”—which means it is secret but not deniable.

A potential downside of the agency’s 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.

There are other important differences between how the two programs are run, especially the process by which killing decisions are made. Since the inception of the drone program, targeting decisions have been made inside the CIA with little or no input from other agencies, though the White House sometimes weighs in. In deciding who should be placed on its kill list, the military, on the other hand, subjects itself to robust interagency vetting, where officials and lawyers from across the national-security bureaucracy weigh in on individual targeting “nominations.” While the CIA’s process is said to be extremely rigorous—in some ways even more rigorous than the military’s—the opportunity for, say, the State Department legal adviser to be heard on lethal activities adds an extra layer of accountability. With the CIA’s program moving to the Pentagon, the Department of Defense’s vetting procedures will prevail.

Another difference is the role of Obama himself. Upon taking office, Obama had decreed that he would sign off on individual kill-or-capture operations conducted by the military away from traditional battlefields; he does not, by contrast, sign off on all CIA strikes. (Obama’s signoff authority on drone strikes was a subject of contention during the recent Brennan-led internal reform process, according to a current and a former administration official. At one point, the military pushed hard to take the commander-in-chief out of the process. But the State Department and other agencies argued that letting the president call the shots was the ultimate form of accountability—and Obama ultimately retained his authority.)

There are other ways in which the military’s program is more constrained than the CIA’s. Typically, though not always, the military’s lethal activities occur under a congressional grant of authority in the context of an armed conflict. The CIA can resort to lethal force simply when the president issues a covert finding—one that the American people may never know about. Another key legal difference: the military considers itself bound by international law and specifically the laws of war. The CIA, on the other hand, has signaled that while it follows “all applicable law,” international law does not necessarily apply to all of its activities.

To be sure, even with these distinctions, it is not clear that the bureaucratic shift will usher in a new era of openness and accountability. For one thing, targeted-killing operations will likely be run by the highly secretive Joint Special Operations Command, the umbrella organization for shadow warriors like the Navy SEALs and Delta Force. And while they run clandestine, rather than covert operations, JSOC is not known for its eagerness to advertise its operations with the press or Congress.

In fact, there’s at least a chance that the change could mean less congressional oversight rather than more. There’s nothing in the law that says the military has to brief congressional committees about its lethal activities. The CIA, on the other hand, is compelled under Title 50 to notify Congress of its intelligence activities. Says Jack Goldsmith, a Harvard law professor and former Justice Department official during the Bush administration: “Moving lethal drone operations exclusively to DOD might bring benefits. But DOD’s lethal operations are no less secretive than the CIA’s, and congressional oversight of DOD ops is significantly weaker” compared with congressional oversight of the CIA. (Still, the administration “back-briefs” Congress after any of its targeted killings.)

Losing its drone program will, at some level, be a blow to the CIA’s identity. The program has given the agency a prominent and—ironically—highly visible role in the terror wars. And the spies can take credit for severely degrading, if not decimating, Al Qaeda’s core organization in Pakistan. At the same time, according to multiple officials, there has been relatively little pushback from the CIA’s top leadership. One reason might be a sense of relief that the CIA would no longer own such a controversial program. The more likely reason? The man who engineered the idea—John Brennan—is now in charge.

From our April 5, 2013, issue; No More Drones for CIA.

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