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a citizen’s journal by Thomas Nephew

Treadstone, Yamamoto, or none of the above

Posted by Thomas Nephew on July 16th, 2009

There are a number of issues to unpack from the news that the CIA had secret plans for assassination teams that it hadn’t divulged to Congress.

First and foremost, for the time being, it’s not yet clear (to me, anyway) just how operational-but-undisclosed the programs in question* became.  Not only did Panetta cancel a secret allegedly-not-yet-ever-used program, but he also felt he ought to report the issue to Congress — perhaps out of an abundance of caution, perhaps in close adherence to statutory requirements … or perhaps for other motives.  All I can find so far about his precise June 24 testimony to Congress is in a  June 26 letter by House Intelligence Committee members and others stating that

“Recently you testified that you have determined that top CIA officials have concealed significant actions from all Members of Congress, and misled Members for a number of years from 2001 to this week.”

Despite the word “actions” in that letter, a New York Times report by Mazzetti and Shane states that the plans “remained vague and were never carried out.” On the other hand, they were apparently specific enough that Panetta actually had something to “cancel” or “scuttle” — as one might indeed expect with something under discussion since 2001.  According to the L.A. Times,

“…as recently as a year ago CIA executives discussed plans to deploy teams to test basic capabilities, including whether they could enter hostile territory and maneuver undetected, as well as gather intelligence and track high-value targets.”

So this wasn’t just idle talk around the water cooler; time and money had been spent thinking about it — and it’s hard to believe you’d just “test” tracking “high value targets.” 

Given 9/11 and the ensuing authorization of military force by Congress, what would be wrong with hit squads focused (presumably) on Al Qaeda leadership?  I imagine I’ll be learning more about U.S. law in this regard — and of course definitive law should govern Panetta’s actions and congressional response.  But rather than lying low until then, I want to try to lay out the issues as I see them now.  I hesitate to do so, because the issue arguably exposes a bit of a seam in my own thinking; I hope everyone will feel free to comment on and disagree with any of the following.

Simply wrong, simply unsupervised, or both?
The broadest concern — one I once was unwilling to entertain at all — is that it’s violence, it’s extrajudicial, and it’s simply wrong.  I suppose I still disagree with this, though it’s a much closer call for me than it once was.  With an accountable chain of decision-making, command and oversight, this is a military option in a war.  We killed Yamamoto in World War II because he was in charge of trying to kill us, and because we saw a way to do it.  This seems similar: the United States was attacked, and Congress authorized “all necessary and appropriate force” against the attackers.

To me, intentional avoidance of legitimate oversight — if that is what happened — is the more troubling issue: that invites eventual errors and worse, it invites and signals abuse.  Adopting a term from the “Bourne” movie series, I’ll call this the “Treadstone” scenario — a secret program conducting unsupervised attacks on all kinds of targets, risking or committing errors in judgment about the necessity of such attacks, the possibility of freelancing for personal gain.  Who would object?  No one would even know.

Even if it never got that far, the “undead” nature of a ready-to-use program like this, one with potentially huge foreign policy, international law, and world political consequences is also insidious. A “former senior U.S intelligence official with extensive knowledge of the program” hi Mike! — told the L.A. Times,”You always want to have capacity because you cannot predict opportunities.” Well, sure you always want that.  But there are a billion and three things the United States might like to “have capacity for”; choosing among them in a way that recognizes costs, benefits, and the law should not be up to the CIA and a rogue vice president alone.

The torture comparison
Nor should be deciding what counts as an “opportunity.”  The issue is familiar to many from discussions of torture or detention: how sure are you that you’ve actually got the enemy (and the right enemy) in your sights or in your power?  As I put it in 2005: Define terrorist: show your work.  The principal difference in this respect between assassination and torture is that with assassination you don’t have the person in custody, and the prospects of that are (or ought to be) low.  Prisoners and detainees are wholly within their jailers’ power, and that changes the moral equation, at least for me.

Perhaps with the exception of a Bin Laden or a Zawahiri, a variant on the “ticking time bomb” or “crystal ball” fallacy arises as well.  One can imagine, as in a movie, tightly constructed scenarios featuring certainty about the identity and imminent danger of the bad guy, the minimization of “collateral damage,” the impossibility of capturing the bad guy instead, etc.  But just listing these shows how rare to impossible the situation would be.  In the event, you don’t have those certainties — so even from a terrorist-hating perspective, you might be better off focusing on legitimate capture for the intelligence value alone.  And from an oversight perspective, again, you’d not want these decisions foreordained.

Even assuming (for the sake of argument) that a rational, legal, carefully designed assassination program could ever be designed — and just reading that gives me a “through the looking glass” feeling — the question remains whether this country’s institutions would be up to the challenge any more.  And by that I don’t mean the challenge of sending a hit squad to Waziristan — I mean the challenge of *not* sending one every time it seemed like the easy way out.

We’d be putting a lot of faith in both the executive branch exercising restraint and allowing oversight, and in the legislative branch people exercising that oversight.  The executive branch has improved, perhaps, but not enough.  The legislative branch’s actual ability and desire to conduct oversight of these kinds of things is on life support at best — and the executive seems to want to keep it that way, judging by Obama’s threat to veto proposed law widening intelligence notification requirements beyond the congressional “Gang of Eight.”  His instincts appear to the opposite of mine in this regard: I think the more oversight and discussion of these kinds of  decisions, the better they’ll be.

Hall of mirrors
I’ve seen reactions to this news item at liberal sites on the Internet saying essentially, “what’s the problem? Osama’s a bad guy, shoot him if you can” — with not a concern in the world that an alleged program on the verge of allegedly being “tested” was so utterly unaccountable and utterly secret that it took a CIA director to blow the whistle on it.

And that makes me nurse a suspicion about these revelations: that they were released in order to result in a predictable backlash against even just oversight of the CIA. The presumable goal of this alleged program — killing Osama Bin Laden if you can — seems straightforward, common sense to much of the public: “You’re telling me you don’t even want the CIA discussing a program that could put a hole in that b*****d’s head?  I thought you all were nuts, and now I know it.”

So that’s not what I’m saying — and that’s not all this program-in-waiting seems to have been about, or all it might have turned into if left unobserved.  But good luck getting that across, even now, with 9/11 well in the past.  (Note that Panetta himself might not have intended this — he might have been a catspaw for someone with a clearer sense of how this could play out.)

Of course, that’s may well be paranoia on my part.  So is the thought that the revelation of this program happened around the same time the possibility of a special prosecutor for torture hit the internet, airwaves, and newstands, and that it may serve to blunt that possibility as well.

Still, I can’t entirely shake the thought.

Staying on message
The whole situation we’re in is bad.  In the short run, immediate self-defense may dictate Predator strikes or target killings of certain Al Qaeda leaders.  But the best way to beat this bunch, in the long run, may be not to kill them — even the chieftains among them — but to make them more despised and more irrelevant, even in their native lands.  Part of that may involve us becoming more irrelevant as well, by letting go: of bases, of the feeling of “indispensability”, of the feeling that surely there must be an American policy towards the situation in XYZistan.  Part of that is surely also to select an intelligent leader, have him extend a hand of friendship, and see if it will be taken.

Electing an Obama who could and would go to Cairo was a fairly inspired bit of public diplomacy by the American people in this respect.  But that’s all it was — a nice bit of symbolism, and everyone moved on.  As a people, we need to not just be sending symbolic messages, but also rethinking what our substantive ones should be.  An assassination squad might not be the best one.

=====
NOTE: As a welcome alternative to my underinformed musings, consider visiting the NYU School of Law Project on Extrajudicial Executions, maintained by Philip Alston, the UN Special Rapporteur on Extrajudicial Executions. In his official 2007 report to the United Nations, he notes a “robust and constructive dialogue” with the U.S. on the issue of targeted killings, and adds:

“[e]mpowering Governments to identify and kill ‘known terrorists’ places no verifiable obligation upon them to demonstrate in any way that those against whom lethal force is used are indeed terrorists, or to demonstrate that every other alternative has been exhausted … it makes a mockery of whatever accountability mechanisms may have otherwise constrained or exposed such illegal action under either humanitarian or human rights law”.

Here’s a directory of the reports at that site; you need it to find footnoted items in any given report.

* EDIT, UPDATE, 7/16: “In question” added.  In May of last year, Alexander Cockburn reported that a March 2008 secret directive by Bush authorized (or ‘authorized’) “actions across a huge geographic area – from Lebanon to Afghanistan […] up to and including the assassination of targeted officials,” Two months later, a source for Seymour Hersh characterized the “Finding” involved as “focussed on undermining Iran’s nuclear ambitions and trying to undermine the government through regime change”; Hersh reported that both CIA and JSOC (Joint Special Operations Command) were involved in “significantly expanded operations” in that country, but characterized the Finding’s impact on CIA activities as merely allowing “defensive lethal action” — not assassination — and only in Iran. From an oversight perspective, two things stand out: 8 members of Congress are supposed to be a check on between three and four hundred million dollars worth of secret doings — and much of that is allegedly completely beyond Congress’s ken. That’s because JSOC is part of the military command structure, and its clandestine actions are — according to Bush’s way of thinking, and now perhaps Obama’s as well — not subject to congressional oversight.  And from a “get Bin Laden” perspective, one half expects the people involved to ask “Bin who?”

MORE, 7/17: Who Is The CIA Allowed to Kill?, Mark Benjamin, Salon.com, 7/17/09; The Most Important Questions To Ask About the CIA’s Targeted Killing Program, Shane Harris, Slate, 7/15/09; National Security Act of 1947. See also Chris Matthews’s interview with Senator Sheldon Whitehouse; the takeaway there is that even if the National Security Act was broken, there aren’t any penalties for doing so. (Besides impeachment after the fact, I suppose.)

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