Commentary

CIA Killing Americans Violates Law of War

In October 2007, Morris Davis, chief prosecutor of the military commissions at Guantanamo Bay, resigned in protest because evidence was being used in proceedings that had been extracted by torture and because of the increasing incidents of political interference by the Defense Department in military commissions.

Davis was and remains a constitutionalist. His action startled Bush administration officials and many others, including me. After retiring with the rank of colonel, Davis became executive director and counsel of the Crimes of War Education Project in Washington, D.C., where “he (has) directed an international non-governmental organization to enhance global public awareness of international humanitarian law (and) highlight violations of the laws of war.”

Now also a professor of law at Howard University, Davis has entered the debate about CIA-directed drone executions of American citizens, which include Anwar al-Awlaki and Samir Khan.

In “Combatant Immunity and the Death of Anwar al-Awlaqi,” Davis charges that “the CIA drone program (thoroughly supported by President Obama) violates the law of war because (the CIA) is a civilian institution, lacking combatant immunity.”

As to the civilian status of the CIA, I suggest that you bear in mind that when Gen. David Petraeus (who had led U.S. forces in Afghanistan) became the present head of the CIA, he removed his military uniform.

What follows is the core of Davis’ conclusion, not only about summary drone executions of U.S. citizens but also about the increasing involvement of the civilian CIA in combatant military activities.

For example, as the targeted CIA drone assassinations continue, Davis explains that, “generally, the deliberate killing of another human being is considered murder unless some legal justification provides immunity. The law of war does just that by extending combatant immunity to lawful combatants who kill in the course of armed conflict, provided they comply with the law of war.”

But the CIA is a civilian intelligence agency reporting to the director of national intelligence. Accordingly, Davis continues, “the concern over using civilian CIA personnel to conduct combat operations is not inconsequential,” to say the least. And here is why:

A primary objective of the law of war is to limit the effects of war, particularly the effects on civilians and civilian objects. A fundamental law of war principle is distinction (emphasis added), which mandates uniforms or other distinctive markings to clearly denote combatants.

Again, CIA Director Petraeus made a point of retiring his uniform once confirmed. He now should be aware — but clearly is not — that, says Davis: “The U.S. undermines the law of war by blurring the intended bright line separating combatants from civilians. The ability to bend the law to what we want it to be at any given moment diminishes us and our commitment to abide by the proper rule of law. That truly is a failure in leadership.”

It’s not only President Obama’s failure of leadership (especially in his championing CIA Hellfire missiles). None of the battling aspirants intending to succeed Obama in the White House has said a single word about this continuing violation of the law of war by the CIA. Keep in mind that when the CIA commits “corollary damage” by killing innocent civilians in its military operations, it is not immune from accountability for those deaths — under our constitutional rule of law.

In an acutely relevant letter to the New York Times (Oct. 12), under the heading, “When the U.S. Kills an American Citizen,” Neil Mullin of Montclair, N.J., writes:

We tried high-level Nazis after World War II. Cambodia tried the criminals who slaughtered millions under Pol Pot. We could and should have done the same for Osama bin Laden and Anwar al-Awlaki, the American-born radical Muslim cleric hiding in Yemen. We have diminished and endangered our nation with these summary executions, however monstrous these men.

Also, Salon.com columnist Glenn Greenwald’s news analysis digs deep, as in “The killing of Awlaki’s 16-year-old son” without due process two weeks after his father:

It’s worth pausing to reflect on how often we talk about the killing of people by the U.S. Literally, the U.S. government is just continuously killing people in multiple countries around the world. Who else does that? … The U.S. president expressly claims the power to target anyone he wants, anywhere in the world, for death, including his own citizens; he does it in total secrecy and with no oversight; and this power is not just asserted but routinely exercised. The U.S., over and over, eradicates people’s lives by the dozens from the sky, with bombs, with checkpoint shootings, with night raids,” et al.

Washington, Adams, Jefferson, Hamilton, Madison be damned.

Greenwald then aims most piercingly: “What’s most striking about this is how little effort is needed to induce America’s political and media elites to acquiesce to it.”

And it’s not just our elites who agree that Obama, this czar of national security, can execute at will. For many Americans, isn’t this “the new normal”?

Many terrorists around the world, and some right here among us, want to kill us instantly. For us to survive, does that mandate our government, including the civilian CIA, to act sometimes as our enemies do — no matter “the collateral damage” to innocent civilians, our rule of law and the law of war?

Civics classes in public schools are at last coming back. What will the new generation learn about what it takes to be an American? It’s too late for Obama.

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the Cato Institute, where he is a senior fellow.