This may present huge legal problems
First, this is not normal. The United States has not been in the habit of exporting assassination services. To export military services legally, a company is required to receive a license from the State Department’s Export Control Office subject to the International Transfer in Arms Regulations. BuzzFeed reports that the office denies issuing such a license, and that is no surprise. Although that office has been subject to criticism for licensing private military and security companies (PMSCs) to train or otherwise support problematic governments like Equatorial Guinea, approving assassination services would be a dramatic departure.
As Ryan Goodman and Sarah Knuckey report in Just Security, the activities that employees of Spear Operations Group carried out leave them open to potential criminal liability under U.S. law for murder (under 18 U.S.C. 956) and war crimes (18 U.S.C. 2441). Taking part in actions of war abroad may also be subject to charges of violating the Neutrality Act. As recently as 2014, four U.S. citizens were convicted of violating this law by virtue of their efforts to overthrow the Gambian government.
The CIA may have known this was happening
How could a dozen men loaded up with body armor and whiskey charter a plane from a small New Jersey airport to a UAE base under contract with another government without the appropriate authorization? It is likely that intelligence agencies helped. Roston is right to infer that it is unlikely that the U.S. government did not know, although he does not have concrete evidence of prior knowledge, and the government did not respond to his inquiries. But the U.S. government is not a monolith. Who knows matters and that “who” in this case appears to have been inside operational units in the CIA. That helps us understand how such “not normal” action was possible. Although the Department of Defense and parts of the State Department have supported a fledgling governance regime around private security contractors and routinely hire companies that abide by its rules and certifications, people hired by many other government agencies were never brought into the program. And the CIA has remained purposefully outside this process, operating independently of these rules.
The CIA is often a tool for evading normal processes, particularly democratic processes. As others have suggested before, when the CIA joins with PMSCs, the evasion of normal processes can be multiplied. The fact that Roston finds knowledge of only this operation at the CIA suggests that this multiplier effect may be at work.
Other countries will think that this is the new normal for American policy
What are the consequences of this out-of-the-norm behavior? To begin, from the outside any U.S. action is taken to be representative of U.S. policy. News of the United States allowing the export of hit squads will thus weaken more normal U.S. efforts. Many U.S. representatives at the State Department and Defense Department have been working to pressure some states, and encourage others, to engage with PMSCs in a way consistent with international law. For instance, they have been trying to put pressure on Russia to desist from its use of the Wagner Group and others as proxy warriors. President Vladimir Putin and his allies can more easily dismiss these efforts now as flagrant hypocrisy.
This incident is also part of a pattern. It joins the steady stream of reports that the United States is considering privatizing the war in Afghanistan, which also would undermine U.S. commitments as an exporting state under the Montreux Document (a translation of international law that pertains to state responsibilities vis-a-vis the private military and security industry). When the private security industry was seen as a tool outside these laws and norms, it unleashed the potential for abuse and made it harder for normal military forces to achieve their goals. The Montreux Document, along with the International Code of Conduct for private security providers, and private security standards, then, not only aimed to avoid abuse but also to lessen the disruptive impact this industry had — across many parts of the world, and on specific U.S. military operations in Iraq and Afghanistan. If the United States goes around normal rules, the problems they were designed to combat are likely to return.
It sets a very bad precedent for rogue operators
My research shows that U.S. behavior affects how the industry sees the future. A few years ago it looked as if the best prospects were for those companies who attended to international humanitarian law, human rights commitments and other socially responsible action. The rogue firms from Russia and Israel were seen as part of an underbelly that had little future. U.S. market setting power was an important part of this development: Firms could not get U.S. contracts without joining the International Code of Conduct Association or abiding by the standards. And those that brazenly violated them were avoided by those who wanted to play in the big leagues. But the underbelly could resurface. If the industry comes to believe that the world’s largest consumer of military and security services has an appetite for rogue behavior, more will move in that direction. More PMSCs willing to work outside the rules will feed into the designs of similarly inclined leaders.
Deborah Avant is a professor and Sie Cheou-Kang Chair at the University of Denver’s Josef Korbel School.