CIA drone attacks produce America's own unlawful combatants
In our current armed conflicts, there are two U.S. drone offensives. One is conducted by our armed forces, the other by the CIA. Every day, CIA agents and CIA contractors arm and pilot armed unmanned drones over combat zones in Afghanistan and Pakistan, including Pakistani tribal areas, to search out and kill Taliban and al-Qaeda fighters. In terms of international armed conflict, those CIA agents are, unlike their military counterparts but like the fighters they target, unlawful combatants. No less than their insurgent targets, they are fighters without uniforms or insignia, directly participating in hostilities, employing armed force contrary to the laws and customs of war. Even if they are sitting in Langley, the CIA pilots are civilians violating the requirement of distinction, a core concept of armed conflict, as they directly participate in hostilities.
Before the 1863 Lieber Code condemned civilian participation in combat, it was contrary to customary law. Today, civilian participation in combat is still prohibited by two 1977 protocols to the 1949 Geneva Conventions. Although the United States has not ratified the protocols, we consider the prohibition to be customary law, binding on all nations. Whether in international or non-international armed conflict, we kill terrorists who take a direct part in hostilities because their doing so negates their protection as civilians and renders them lawful targets. If captured, the unlawful acts committed during their direct participation makes them subject to prosecution in civilian courts or military tribunals. They are not entitled to prisoner-of-war status.
If the CIA civilian personnel recently killed by a suicide bomber in Khost, Afghanistan, were directly involved in supplying targeting data, arming or flying drones in the combat zone, they were lawful targets of the enemy, although the enemy himself was not a lawful combatant. It makes no difference that CIA civilians are employed by, or in the service of, the U.S. government or its armed forces. They are civilians; they wear no distinguishing uniform or sign, and if they input target data or pilot armed drones in the combat zone, they directly participate in hostilities -- which means they may be lawfully targeted.
Moreover, CIA civilian personnel who repeatedly and directly participate in hostilities may have what recent guidance from the International Committee of the Red Cross terms "a continuous combat function." That status, the ICRC guidance says, makes them legitimate targets whenever and wherever they may be found, including Langley. While the guidance speaks in terms of non-state actors, there is no reason why the same is not true of civilian agents of state actors such as the United States.
It is, of course, hardly likely that a Taliban or al-Qaeda bomber or sniper could operate in Northern Virginia. (In 1993, a Pakistani citizen illegally in the United States shot and killed two CIA employees en route to the agency's headquarters. He was not, however, affiliated with any political or religious group.)
And while the prosecution of CIA personnel is certainly not suggested, one wonders whether CIA civilians who are associated with armed drones appreciate their position in the law of armed conflict. Their superiors surely do.
Gary Solis, an adjunct professor at Georgetown University Law Center, is the author of "The Law of Armed Conflict."