Look What's Slipped in the Middle
I'm too far behind on most of the issues raised in Dana Priest's summary article on CIA programs post 9/11 to comment on them in a particularly thoughtful way, (although I'm sure the rest of the blogosphere will be all a-buzz today) but one thing raises big alarm bells for me.
The point of the article is supposed to be that there are a range of activities under one large umbrella program, the legality of each of which is questionable, but all of which are being justified by the same concepts. But in the middle of the article we find this:
Tenet, according to half a dozen former intelligence officials, delegated most of the decision making on lethal action to the CIA's Counterterrorist Center. Killing an al Qaeda leader with a Hellfire missile fired from a remote-controlled drone might have been considered assassination in a prior era and therefore banned by law.
But after Sept. 11, four former government lawyers said, it was classified as an act of self-defense and therefore was not an assassination. "If it was an al Qaeda person, it wouldn't be an assassination," said one lawyer involved.
This month, Pakistani intelligence sources said, Hamza Rabia, a top operational planner for al Qaeda, was killed along with four others by a missile fired by U.S. operatives using an unmanned Predator drone, although there were conflicting reports on whether a missile was used. In May, another al Qaeda member, Haitham Yemeni, was reported killed by a Predator drone missile in northwest Pakistan.
That is patent nonsense. The laws regarding the circumstances under which someone can be killed are complex -- it's why the Air Force and Naval aviation units employ so many JAG officers to go over targeting decisions -- but they have nothing to do with questions about "assassination."
For one thing, the ban on assassination is not legislative, it's an Executive Order, so if the President wanted to do away with it, he could do so with the stroke of a pen. And for another, assassination is generally defined as the killing of a head of state, and not even Osama bin Laden meets that criteria. There was some discussion over whether targeting Saddam at the very beginning of the invasion might have met that criteria, but in point of fact it would not since as the commander of military forces at a time of war (pdf) he was a legitimate military target (as President Bush would also have been once hostilities commenced.)
At the very least, Priest needed to point out that these issues surround the question of assassinations, not write as if the very fact that terrorists are being killed in the field means that the US is violating some crystal clear legislative ban on some crystal clear act. That she wrote it this way makes me wonder if the article isn't padded, if she didn't try and throw in as many points of controversy as she could find, up to and including the kitchen sink, from the last four years of covert activity, to make her point as dramatically as possible, and it makes me wonder, if I knew more about the issue, what else in her article would jump out at me?
Normally I take anything written by Priest very, very seriously, but suddenly my guard is up.

