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Panetta's Concern Revealed: Secret C.I.A-Blackwater Assassination Program

by Professor Will Huhn on August 20, 2009

in Constitutional Law,Wilson Huhn

     In an article by Mark Mazzetti in yesterday's New York Times it was reported that the secret program that current C.I.A. Director Leon Panetta learned about, terminated, and revealed to Congress in June of 2009 was a Bush administration plan to use the Blackwater private security firm to help assassinate al-Qaeda leaders.

     In 1981 President Ronald Reagan issued Executive Order 12333 governing the administration of the intelligence services, Section 2.11 of which states:

No person employed by or acting on behalf of the United States government shall engage in or conspire to engage in assassination.

     In my opinion, attacks against al-Qaeda leaders when carried out by the United States government are not "assassinations" but rather military operations in the conduct of a war, at least where those operations are conducted by military personnel within a theater of war.  Al-Qaeda declared war on the United States in 1998 and committed several acts of war against this country including the attack of September 11, 2001.  On September 18, 2001, in the Authorization for Use of Military Force, Congress authorized the President:

 to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

     Despite the breadth of the AUMF, the legality of hiring a private company to kill foreign leaders is less clear, particularly if the assassinations were to be carried out in countries outside of Iraq or Afghanistan and without the permission of the government in those countries.  Even within a theater of war it is not clear that employees of a private security company would enjoy the same legal rights and immunities as soldiers or intelligence officers.

     The legality of concealing this program from Congress is also not clear – and by that I mean that the law is not a model of clarity.  The relevant provision of federal law, Section 103 of the National Security Act of 1947, states:

(1) Under the direction of the National Security Council, the Director of Central Intelligence shall be responsible for providing national intelligence (A) to the President; (B) to the heads of departments and agencies of the executive branch; (C) to the Chairman of the Joint Chiefs of Staff and senior military commanders; and (D) where appropriate, to the Senate and House of Representatives and the committees thereof.

(2) Such national intelligence should be timely, objective, independent of political considerations, and based upon all sources available to the intelligence community.

The problem, of course, is determining whether it would have been "appropriate" for the C.I.A. to have told Congress about this program earlier.  Here is a monograph entitled "How Intelligence Sharing with Congress Has Evolved" posted on  the website of the C.I.A.  According to the last footnote of the monograph it was written by the author of the "where appropriate" language in the statute.  The footnote states:

Permitting myself a personal note here, as author of this language and principal coordinator of the legislation, I was advised by representatives of the executive branch that they did not see this language as anything more than a codification of the existing practice, and, so long as some type of qualifying language was present, they would not object to it. Indeed, they preferred not to tackle the thorny issues involved in specifying what support would, from the executive standpoint, be "appropriate."

     Thorny indeed!  It has been reported that Vice-President Dick Cheney ordered C.I.A. officials not to inform Congress about the program, and Mr. Cheney's decision has been defended on the ground that the program was still in the planning stages.  On the other hand, the Mazzetti article indicates that the C.I.A. had spent several million dollars on the program and quotes one official as stating that the program had gone "well beyond" "briefing slides or doodles on a cafeteria napkin."  The House Intelligence Committee is investigating whether the C.I.A. broke the law by not promptly informing Congress of Blackwater program.  

     Blackwater also faces other legal challenges.  On September 16, 2007, Blackwater employees allegedly killed 17 Iraqi citizens and injured 20 others in Nisour Square, Baghdad, while providing security for a State Department convoy.  As a result, in December, 2008, five of the employees were indicted by the Justice Department largely on the testimony of a sixth guard who had pled guilty to manslaughter.  Furthermore, the Center for Constitutional Rights has brought civil actions on behalf of several of the Iraqis who were injured as well as the families of some of the persons who were killed.  On August 4 Jeremy Scahill of The Nation reported that as a part of that lawsuit the CCR had submitted affidavits from two former Blackwater employees alleging that the company had also engaged in arms smuggling and had killed witnesses who were cooperating with federal authorities.