The Combatant's Privilege in Asymmetric and Covert Conflicts

Abstract

As the United States has engaged in an unprecedented campaign of targeted killings against members of al-Qaeda and associated forces, various agencies within the government have engaged in increasingly pitched squabbling regarding their respective control over drone strikes in multiple foreign theaters. Authority and responsibility has vacillated between the Central Intelligence Agency (CIA) and the Defense Department's Joint Special Operations Command (JSOC), the former being an intelligence agency tasked with both intelligence and covert operations directives, and the latter a military organization under the direction of the Secretary of Defense. In addition to the inherent policy questions in this turf battle, there are urgent elements of domestic and international law simmering beneath the surface. Some critics have suggested that CIA officers should not be involved in drone operations because CIA officers are non-uniformed individuals that do not meet the international law standards for privileged belligerency. According to this argument, the calculus regarding the appropriate agency for drone operations ought to take into account that international law does not confer the combatant's privilege on non-uniformed CIA employees.