By Marc A. Thiessen
Tuesday, June 8, 2010; A17
CIA Director Leon Panetta made an unusual visit to the agency's Counterterrorism Center last year to buck up his troops. Morale had been devastated by the release of highly classified details of the CIA's interrogation program and the growing calls for prosecution of those involved. According to one top intelligence official, a senior officer involved in targeting terrorists asked Panetta what would happen to him in five years when the political winds shifted. Would he be hung out to dry like those in the interrogation program? Panetta said he could not promise the officer would not be hung out to dry -- only that it would not happen while President Obama was in office.
Only a year later, the wolves are already circling. Last week the CIA celebrated one of its biggest successes when al-Qaeda confirmed that a drone had killed its No. 3 leader, Mustafa Abu al-Yazid, in Pakistan. Yet also last week, the United Nations issued a scathing report demanding that the CIA stop using drones and declaring that agency officials involved in targeted killings of terrorists such as Yazid may be in legal jeopardy. The U.N. special rapporteur on extrajudicial, summary or arbitrary executions questioned whether the United States was engaged in an "armed conflict" outside of the war zones of Iraq and Afghanistan, and declared that, outside the "exceptional circumstance" of such an armed conflict, "killings by the CIA would constitute extrajudicial executions assuming that they do not comply with human rights law. If so, they must be investigated and prosecuted by the U.S. and the State in which the wrongful killing occurred."
The special rapporteur, Philip Alston, was joined in his condemnation by the American Civil Liberties Union, which in an April 28 letter to Obama, accused him of supporting a "program of long-premeditated and bureaucratized killing" and declared that the program "violates international law." The ACLU wrote that "financiers, and other non-combat 'supporters' of hostile groups cannot be lawfully targeted with lethal force." Yet that is precisely what Obama did in the case of Yazid.
On The Post's op-ed page Sunday, Treasury Undersecretary Stuart Levey called the killing of Yazid a "major blow" to al-Qaeda because "Yazid has essentially served as al-Qaeda's 'chief financial officer,' coordinating the group's fundraising and overseeing the distribution of money essential to its survival." By the ACLU's reasoning, this would make the strike that killed Yazid illegal. Does the ACLU want to see the Predator operator who took out al-Qaeda's third in command prosecuted for murder? The ACLU has already gone after CIA interrogators -- surreptitiously photographing these covert operatives and sharing the images with al-Qaeda terrorists in Guantanamo. CIA drone operators may soon be in for similar treatment.
The Obama administration has put the Predator operators at greater risk by dramatically narrowing the legal underpinnings for their actions. State Department legal adviser Harold Koh -- a harsh critic of the Bush administration -- explained in a March 25 speech that the Obama administration was no longer invoking the president's Article II authority as commander in chief to justify many of its policies in the war on terrorism. But Koh said that drone attacks were lawful because "Congress authorized the use of all necessary and appropriate force through the 2001 Authorization for the Use of Military Force (AUMF)."
The problem -- as Koh's predecessor, John Bellinger, told The Post last week -- is that Congress authorized the use of force against those who "planned, authorized, committed, or aided" the attacks of Sept. 11, 2001. And many of those currently targeted -- particularly outside Afghanistan -- had nothing to do with those attacks.
The American-born radical cleric Anwar al-Aulaqi was not involved in Sept. 11 -- yet he has reportedly been put on the targeting list. The Pakistani Taliban leaders who sent a terrorist to set off a car bomb in Times Square were also not involved in the Sept. 11 attacks -- but they are being targeted with Predators. The president has the authority to strike these individuals under his Article II powers, but Obama refuses to invoke them -- a decision he may come to regret. The administration is expanding its use of drones while shrinking the legal ground on which the attacks are based.
After Sept. 11, few objected to the CIA interrogation program -- until the threat appeared to dissipate and the political winds shifted. Today, the breezes are beginning to shift on the Predator program -- a telltale sign of the gale to come. In a few years, when the situation in the war against terrorism has stabilized, will there be calls for the disbarment of the Obama lawyers who authorized these strikes and criminal investigations of the CIA officers who carried them out? Will Harold Koh join John Yoo and other Bush lawyers in the left's hall of infamy? As Panetta made clear in his visit with staff last year, he can provide a guarantee that lasts only one election cycle -- after that, the CIA is on its own.
Marc A. Thiessen, a former speechwriter to President George W. Bush, is a visiting fellow with the American Enterprise Institute and the author of "Courting Disaster." He writes a weekly column for http://washingtonpost.com.