The Evolution of Law and Policy for CIA Targeted Killing

Many critiques of the Central Intelligence Agency’s alleged use of killer drones depend on law that does not bind the United States or on contestable applications of uncertain facts to vague law. While acknowledging a blurry line between law and policy, we continue to develop a due process for targeted killing. In the real world, intelligence is sometimes faulty, mistakes occur, and peaceful civilians are at risk. International humanitarian law, which applies during armed conflicts, demands very little in the way of process beyond the admonition to take feasible precautions. Even so, the intelligence-driven nature of targeted killing, and the accompanying concerns over mistakes and abuse, prompt the law – whether couched as IHL or something else – to develop specifics for a CIA drone program. To assist this development, the United States should publicize and defend its standards. If any of these standards turn out to be indefensible, the United States should abandon them and develop better rules for its shadow war. The law and policy for CIA drones should evolve toward accountability and transparency without blocking the sometimes necessary assertion of American force around the world

An Overt Turn on Covert Action

Long past the soul-searching of Watergate, very few people question the need for covert action as a part of American foreign policy. The world is so dangerous after 9/11 that it would be irresponsible to suggest that our intelligence agencies should be disbanded or that our government should acknowledge everything it does on the dark side. Today the question is not whether we should engage in covert action at all, but how often and under what circumstances. Not everything stays secret. Our Nation has been conducting covert action with greater transparency and more congressional participation than during the Cold War. Despite the doomsayers, the statutory checks on covert action that started in the 1970s have not damaged the Nation. This Article, casting additional light on covert action, provides a framework for answering two sets of questions: one about delegations of presidential authority to the Central Intelligence Agency, the other about notices to Congress. For background, this Article presents a selected history of covert action since World War II, and reviews the statutes and regulations that affect covert action’s legality. After that, this Article examines the extent to which the President may (and should) delegate authority for covert action, then balances the need for congressional oversight against the President’s prerogative to limit knowledge of covert action to a small and trusted group. Recognizing the need to protect intelligence sources and methods, this Article proposes a new executive order (or a new statute) to clarify and to publicize the internal procedures that take place before the United States fixes foreign elections, beams propaganda onto foreign radios, supplies weapons to insurgents who fight our enemies, or kills suspected terrorists with missiles from Predator drones

One Lantern in the Darkest Night - The CIA\u27s Inspector General

Whether related to attempted assassinations, unauthorized interrogations, or other intelligence failures, the Inspector General at the Central Intelligence Agency is supposed to conduct audits and internal investigations into potential wrongdoing at an organization that operates in the shadows. From 1947 until 1990, the IG served at the discretion of the Director of the CIA. Congress, after uncovering the CIA’s improper role in Iran-contra, created a statutory IG. A new IG, appointed by the President and confirmed by the Senate, was granted the power to initiate investigations on his own and was required to make reports to the oversight committees on problems within the Agency and on disputes between the IG and the Director. Through a more independent IG, Congress sought more effective oversight of Agency activities as well as greater access to the CIA’s inner dealings. This Article, part of a broader project that analyzes internal checks on the intelligence community, reviews the IG’s statutory structure, compares the performance of the office on several investigations before 1990 to its performance since then, and discusses the backgrounds and experiences of a handful of officers who have served as the CIA’s watchdog. We question whether the changes in the IG’s structure have really improved that office’s ability to keep the CIA on the right side of the law. Institutional lapses have gone uncorrected. Individual responsibility has not been assigned for operational and strategic failures. And, in many cases, journalists have scooped the IG

The Moussaoui Case: The Mess from Minnesota

This article, after giving a brief history of the Moussaoui case, identifies the main paradoxes or problems of continuing to deal with him in the criminal system. By no stretch of the imagination does this article provide an exhaustive or comprehensive treatment of the Moussaoui case. Each problem, by itself, could be the subject of a separate law review article. This article suggests that Moussaoui, rather than Yaser Esam Hamdi, or Jose Padilla, or the detainees in Guantanamo Bay, could have served as the true test for determining the minimum process that the American Constitutional system owes to an individual whose goal is our annihilation. The distinction between the Moussaoui case and the Hamdi/Padilla cases is that Moussaoui is not a U.S. citizen. The distinction between the Moussaoui case and the Hamdi/Padilla/Guantanamo cases is that the Bush Administration has offered more convincing evidence in public filings that Moussaoui was a major player connected to a major terrorist plot. The premise of this article is that we should respect our rule of law but that we should not treat terrorists any more decently than required. To do more than the law requires, in an age of weapons of mass destruction, is more folly than an act of humanity. Although this article does not address the case of a non-U.S. citizen who is a major player arrested outside the United States, it follows that someone like Khaled Sheik Mohammed (KSM), the alleged mastermind of the 9/11 plot, should not be treated any better than Moussaoui. This article’s conclusion is that the Moussaoui case is better resolved through a military proceeding

One Lantern in the Darkest Night - The CIA\u27s Inspector General

Whether related to attempted assassinations, unauthorized interrogations, or other intelligence failures, the Inspector General at the Central Intelligence Agency is supposed to conduct audits and internal investigations into potential wrongdoing at an organization that operates in the shadows. From 1947 until 1990, the IG served at the discretion of the Director of the CIA. Congress, after uncovering the CIA’s improper role in Iran-contra, created a statutory IG. A new IG, appointed by the President and confirmed by the Senate, was granted the power to initiate investigations on his own and was required to make reports to the oversight committees on problems within the Agency and on disputes between the IG and the Director. Through a more independent IG, Congress sought more effective oversight of Agency activities as well as greater access to the CIA’s inner dealings. This Article, part of a broader project that analyzes internal checks on the intelligence community, reviews the IG’s statutory structure, compares the performance of the office on several investigations before 1990 to its performance since then, and discusses the backgrounds and experiences of a handful of officers who have served as the CIA’s watchdog. We question whether the changes in the IG’s structure have really improved that office’s ability to keep the CIA on the right side of the law. Institutional lapses have gone uncorrected. Individual responsibility has not been assigned for operational and strategic failures. And, in many cases, journalists have scooped the IG

Change Versus Continuity at Obama’s CIA

Sweeping change is necessary at the Central Intelligence Agency (CIA). During President Barack Obama‘s transition into office, change should go deeper than usual between administrations. To restore the trust of the American people and to regain the confidence of the international community, the CIA needs to do better. I will outline three areas for legislative change relating to my former employer, the CIA. The first proposal is to have a national security court for the trials of terrorists. The second is to permit the CIA to continue to have an exception to pursue aggressive interrogations with a lot of oversight and checks. The third is to continue the process of rendition or the transfer of suspected terrorists with more oversight and checks

The Evolution of Law and Policy for CIA Targeted Killing

Many critiques of the Central Intelligence Agency’s alleged use of killer drones depend on law that does not bind the United States or on contestable applications of uncertain facts to vague law. While acknowledging a blurry line between law and policy, we continue to develop a due process for targeted killing. In the real world, intelligence is sometimes faulty, mistakes occur, and peaceful civilians are at risk. International humanitarian law, which applies during armed conflicts, demands very little in the way of process beyond the admonition to take feasible precautions. Even so, the intelligence-driven nature of targeted killing, and the accompanying concerns over mistakes and abuse, prompt the law – whether couched as IHL or something else – to develop specifics for a CIA drone program. To assist this development, the United States should publicize and defend its standards. If any of these standards turn out to be indefensible, the United States should abandon them and develop better rules for its shadow war. The law and policy for CIA drones should evolve toward accountability and transparency without blocking the sometimes necessary assertion of American force around the world

The Unresolved Equation of Espionage and International Law

This Essay, in order to offer up something to that appetite, is divided into five parts. After this introduction, the author, A. John Radsan, describes a Hegelian impulse, the perpetual drive to find unity in disorder. That impulse, for better or worse, creates the train and the track for many of the academy\u27s journeys. Radsan then defines what is meant by intelligence activities for purposes of this Essay, after which Radsan surveys the scholarship that existed before this symposium on the relationship between espionage and international law. As the number of pages written on this topic suggests, scholarship on espionage and international law has not been very extensive. This survey of the scholarship concludes by leaving us in an ambivalent position: espionage is neither legal nor illegal under international law. Espionage exists between the tectonic plates of legal systems. Following the survey of the literature, Radsan describes a set of dualities that informs the international practice of espionage. This final Part, inspired by mystical poetry, is the most substantial part of this Essay. Coming full circle, the conclusion, as presaged by the introduction, is that rather than force synthesis, we should tolerate the ambiguities and paradoxes inherent in the world\u27s second oldest profession. Accepting that espionage is beyond the law, we should move on to other projects-with grace