Senator John McCain has vowed to accelerate the effort to transition control of drone operations from the CIA to the Pentagon, and he will likely have support from top Senate Democrats. The debate that surrounds this issue is not confined to drones, of course. It raises even broader questions about the role of the CIA in lethal operations. According to some commentators, the law of armed conflict requires the CIA to be taken completely out of the business of killing during wartime. There may, indeed, be very good reasons to extract the CIA from the drone program, targeted killings and the like (see, for example, a must-read article by Just Security’s Philip Alston and see also Just Security’s coverage of Mark Mazzetti’s excellent book). However, this specific appeal to the law of armed conflict – the “combatant’s privilege” trope — is not legally valid.
The problem stems from a failure to distinguish the rules that apply only to “international armed conflicts” (wars between states) and the rules that apply to “non-international armed conflicts” (wars between a state and a non-state actor). Ignoring this distinction is a common mistake. The GW Bush administration, Obama administration officials, and their critics have all made it.
The critics (e.g., Jens David Ohlin) argue that only a state’s regular armed forces and associated military groups meeting certain criteria (such as wearing a military uniform) have the right to kill in armed conflict. In other words, according to the laws of war, only such military forces—and not civilian agencies—possess the “combatant’s privilege” to engage in hostilities. According to one expert (Kevin Jon Heller), any continued involvement of the CIA in targeted killings could land individual agents in legal jeopardy under US domestic law (see Heller’s analysis of the public-authority defense for prosecutions under the foreign-murder statute). And, according to Col. Morris Davis the former chief prosecutor for US military commissions, CIA operators could be prosecuted for murder under the domestic law of the United States, Pakistan, and elsewhere—even if the killing involved a legitimate military target. But this whole line of reasoning relies on the legal fallacy – a conflation — that all wars are alike.
The notion of a combatant’s privilege applies exclusively to wars between states. The privilege evolved out of standards for determining prisoner-of-war status: a part of the legal regime that assigns special protections only in conflicts between states. And the privilege relates to “combatant immunity”—a part of the laws of war that forbids one state from prosecuting the soldiers of an enemy state for mere membership in the opposing force. Indeed, some of the leading critics have drawn their arguments directly from provisions of the 1949 Geneva Convention on Prisoners of War—which apply only between states—and from a 1977 protocol to the Geneva Conventions which by its very title is limited to “the Protection of Victims of International Armed Conflicts” and would not apply as a matter of treaty law to conflicts with groups like Al Qaeda.
These particular privileges and immunities have no relevance to non-international armed conflict. And for good reason. If combatant immunity applied to internal conflicts, states could not punish citizens who join a militant group that takes up arms against the government. And, followed to its logical conclusion, a rule that civilian authorities could not be directly involved in hostilities would have perverse results. It would suggest that the US government should never resort to regular law enforcement to forcibly apprehend members of Al Qaeda in an ongoing armed conflict (police are civilians too).
A more convincing and consistent argument is that the CIA’s involvement in targeted killing erodes domestic and foreign support because its legal foundations appear so hypocritical. In the conflict with Al Qaeda, the government has prosecuted and detained individuals for the same type of conduct as the CIA’s: killing without the combatant’s privilege. For evidence of this double-standard, consider the juvenile defendant Omar Khadr. The Bush administration charged him with “the killing of a lawful combatant by an unlawful combatant.” In a later plea agreement, the Obama administration secured a statement from Khadr admitting he was “an unprivileged belligerent” because he did not comply with the 1949 Prisoner of War Convention. And congressional legislation for military commissions and detentions refers to Al Qaeda members as “unprivileged enemy belligerents” in a non-international armed conflict. These governmental actions are based on the same fallacy that assumes warfare with a non-state actor is the same as inter-state warfare. And, in light of the CIA’s involvement in targeted killing, these actions appear grossly hypocritical.
Ultimately, there may be other strong arguments against the use of CIA operators in drone strikes—arguments about the erosion of public legitimacy due to hypocrisy, arguments about the tradeoffs with CIA intelligence gathering, arguments about internal systems of compliance with the law of armed conflict, etc. But that has not been the argument concerning unprivileged belligerency. That argument is meant to resonate with existing standards of international law, and it really doesn’t.
Building opposition to the CIA’s actions on an unsound legal basis is misguided. If the laws of war are to be invoked, by any side in these discussions, it should be well-grounded and consistent.