Drone attacks in Pakistan provide context for a still-secret CIA program.
In October 2002, a suspected al-Qaeda operative named Qaed Senyan al-Harthi, whom the United States believed to be a participant in the 2000 assault on the U.S.S. Cole, took a drive through the northern Yemeni mountains that had become his home. An unmanned, remotely piloted CIA Predator drone tracking al-Harthi from the sky released its payload, a Hellfire missile, into his car, killing al-Harthi and five others. Rather than deny responsibility for the strike, the Bush administration boasted of it. “One hopes each time you get a success like that, not only to have gotten rid of somebody dangerous, but to have imposed changes in their tactics and operations and procedures,” Deputy Defense Secretary Paul Wolfowitz told CNN.
The 2002 Harthi strike — the first successful one of its kind — yielded scores more attacks on al-Qaeda targets from pilotless drones. Those strikes have proliferated intensely over the last year in the tribal areas of Pakistan, as CIA officials believe they stand the best chance for killing Osama bin Laden and his lieutenants. Such forays into assassinations since 9/11 help provide context for understanding a still-secret post-9/11 program canceled last month by CIA Director Leon Panetta that might have represented another erosion of the U.S.’s three-decade ban on such targeted killings.
“Killing people during war is different from the U.S. government targeting specific persons, outside a battle zone, for killing,” said Vicki Divoll, a former lawyer for both the CIA’s Counterterrorist Center and the Senate Select Committee on Intelligence. “And even in the so-called war on terror, most lawyers who study this issue believe that targeted killing of a named terrorist falls within the ban in a presidential executive order that has been around since the Ford administration.”
The executive order Divoll referred to has come to be known as EO 12333, which President Reagan issued in 1981, building on the efforts of Presidents Ford and Carter. It states, “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”
Very little has been revealed about this new program, but the drone strikes appear to be entirely separate from it. On Sunday, The Wall Street Journal reported that the program Panetta shut down was an inchoate effort to hunt and assassinate terrorist leaders that did not progress far beyond the planning stages. The Guardian added on Monday that the effort was geared toward al-Qaeda members taking refuge in U.S.-allied countries, where the use of military force — and in some cases, the cooperation of domestic law enforcement or intelligence — could not be contemplated. Neither the CIA nor the White House would comment on the program.
The ban itself is not law, but rather a statement of policy, meaning that violations of it might get an official “fired or demoted” but not jailed, Divoll said. Nor is it ironclad. According to an interpretation of EO 12333 written for Congress in January 2002 by the Congressional Research Service’s Elizabeth B. Bazan, resolutions passed by the House and Senate days after 9/11 authorizing “all necessary and appropriate force” to respond to the perpetrators of the attack “might be viewed as sufficient” for the intelligence community to take “actions that might otherwise be prohibited under the assassination ban.”
Because the ban isn’t a law, modifications to EO 12333 are subject only to presidential discretion. Bazan wrote that any such modifications “would have to be published in the Federal Register” in most cases. But with the assassinations ban, “the president can change that policy at any time, or even secretly waive it in certain circumstances,” Divoll said.
Over the past year, the proliferation of CIA drone strikes into the Pakistani tribal areas has intensified. Reuters reports that the agency has launched 48 strikes over the past 18 months, with the most recent coming on Saturday and targeting a communications installation controlled by local Taliban commander Beitullah Mehsud.
But Richard Clarke, the White House counterterrorism czar under Presidents Bill Clinton and George W. Bush, said that the authority for using drone strikes against al-Qaeda does not emanate from the executive order. “The Predator strikes are justified as defensive measures and as authorized by Congress through its post 9/11 resolution,” Clarke said. During the Clinton administration, as documented by the 9/11 Commission report, officials determined that strikes against al-Qaeda targets were instances of anticipatory self-defense and therefore not violative of the assassinations ban.
“al-Qaeda was a military target,” Clarke said. “Targeting the leaders of a military is not a violation of EO 12333.”
The Wall Street Journal reported that the secret CIA program depended upon a presidential legal finding for hunting and eliminating al-Qaeda leaders. It is unclear what legal authority that finding claimed, and whether it is related to EO 12333.
While there has been much furor in Congress over the program being unknown to lawmakers until recently, no lawmaker briefed on the program has claimed the Bush administration’s effort itself violated any law. In 2005, the Pentagon publicly acknowledged a program launched in concert with the CIA to create mixed civilian-military “Strategic Support Teams” for the al-Qaeda hunt. Lawmakers at the time expressed some concern about the teams, but none called them illegal. Nor have any lawmakers assailed the legality of the CIA’s drone strikes.
“I think its taken for granted these are acts of war at a time of war,” said Steven Aftergood, an intelligence policy expert with the Federation of American Scientists. “That’s why it seems to me there must be something more than that involved here.”
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