Mark Mazzetti reports in the New York Times:
The Central Intelligence Agency in 2004 hired outside contractors from the private security contractor Blackwater USA as part of a secret program to locate and assassinate top operatives of Al Qaeda, according to current and former government officials. Executives from Blackwater, which has generated controversy because of its aggressive tactics in Iraq, helped the spy agency with planning, training and surveillance. The C.I.A. spent several million dollars on the program, which did not successfully capture or kill any terrorist suspects. The fact that the C.I.A. used an outside company for the program was a major reason that Leon E. Panetta, the C.I.A.’s director, became alarmed and called an emergency meeting in June to tell Congress that the agency had withheld details of the program for seven years, the officials said.
This was a curious kind of contract, the Times reports. It wasn’t formalized but rather rested on “individual agreements with top company officials, including” CEO Erik Prince. No paper trail for the auditors.
Why would the CIA turn to a private security company for the implementation of one of its most sensitive programs? That will be a point for congressional study. But one answer might be plausible deniability. The last eight years have made clear that congressional oversight committees have a hard time keeping track of contractors, especially contractors engaged in sensitive intelligence projects. Contractors also show up repeatedly in other highly sensitive intelligence projects—consistently, whenever the projects skirt the law. The Bush Administration’s torture program is a good example. Further answers might lie with Cofer Black, the 28-year agency veteran who ended his tenure as head of the Counterterrorist Center only to assume new duties at Blackwater. If the targeted killings program was under Black’s aegis, then he may have had something to do with the secret, informal relationship between Blackwater and the CIA.
Mazzetti also reports that “the Bush administration took the position that killing members of Al Qaeda, a terrorist group that attacked the United States and has pledged to attack it again, was no different from killing enemy soldiers in battle, and that therefore the agency was not constrained by the assassination ban.” This is evidence of the typically muddle-headed thinking that characterized the Bush Administration’s lawyer-cowboys. Let’s unpack it a bit.
First, clearly, in wartime, a nation is entitled to attack the command and control of its adversary, even seeking them out in civilian population centers. That’s not a particularly controversial point. But that’s a right that exists for privileged combatants, namely the uniformed armed services of a party to the conflict. The CIA itself does not field privileged combatants (with some limited exceptions); its predecessor organization, OSS, was attached to the military, but one rationale for the reorganization of the intelligence service was to loosen the bonds tying it to the laws of war. A targeted killings program of the sort contemplated could therefore plausibly be operated by the Pentagon, but not by the CIA. For this reason, many observers were not surprised by earlier reports tying this program to the joint special forces command.
There are also limitations on how such a program could operate. Mazzetti’s reporting suggests—as do other reports—that this plan involved attacks in states where no active combat was raging, and indeed, the talk of “diplomatic” problems suggests it might involve U.S. allies who are unwilling to authorize such operations on their soil. Would that be lawful? However the United States views such an operation, the country where it occurs might very well see it as a homicide and might therefore arrest and prosecute the U.S. agents—that’s one of the “risks” alluded to. Under the laws of war, the right to strike against an enemy command and control figure is not absolute, either. If that figure is not engaged in actual military activities and is sheltering in a neutral state, the attack could be seen as the violation of the neutrality of that state, for instance.
That means that a targeted killings program could easily have been implemented in Iraq, Afghanistan, on the Pakistani frontier, or another theater of warfare, consistent with the law. But when it involves a strike against an Al Qaeda cell based in Germany, for instance, the operation has serious legal issues. In between these two examples are a number of other possibilities in varying shades of gray. In dealing with these cases, decision-makers have to take into account the law, the consequences of the action for relations with the state where the attacks occur, and the practical effect of an attack, particularly if innocent lives are claimed and no legitimate target is affected. Historically, even states that generally recognize and follow the laws of war may launch covert strikes against enemy leaders outside of a theater of war. It is a risk they may feel compelled to take.
But even if the United States could run a targeted killings program, that doesn’t mean it could or should use private contractors to implement it. These contractors are not privileged combatants under the laws of war. In concept, the United States has justified their use solely in terms of the protection of other contractors and military forces, not for any sort of offensive use. As I discuss in Private Security Contractors at War, that distinction is extremely difficult to maintain. For instance, when persons protected by security contractors come under attack, what are their rules of engagement? Are they required to retreat in the face of fire, or may they use offensive tactics by way of defense? In theory the view has been that they are required to retreat, but practice has shown that offensive tactics are used. Indeed, Blackwater has followed what one Marine officer described to me as “spray and pray”—use heavy firepower in an urban setting and pray that some of it actually hits the enemy. The bottom line is that private security companies have no business becoming involved in a project like the CIA targeted killings program. So why would the CIA use them? On that question, we need answers.