The CIA’s Four-Box of Death

Just to finish up with my continuing obsession with CIA General Counsel Stephen Preston’s speech at Harvard (don’t miss Josh Gerstein getting into the act with his fact check on the shooting of Osama bin Laden’s wife), I wanted to look at Preston’s “hypothetical case,” which I contend is meant to offer an explanation for how the CIA decided the Anwar al-Awlaki killing was legal.

I say this “hypothetical” is really about Awlaki because Preston focuses closely on Executive Order 12333’s prohibition on assassinations (never mind that OLC holds that this very EO can be pixie dusted without notice). Particularly given that Preston willingly talks about OBL’s killing–about the only other one that might be deemed an assassination–Preston’s attempts to rebut the claims that Awlaki was assassinated seem to arise from the same anxiousness Eric Holder exhibited on the same topic.

In other words, this is the CIA version of the speech Holder made.

Preston describes framing his analysis in terms of a four-box matrix.

I conceive of the task in terms of a very simple matrix. First is the issue of whether there is legal authority to act in the first place. Second, there is the issue of compliance with the law in carrying out the action. For each of these issues, we would look first, and foremost, to U.S. law. But we would also look to international law principles. So envision a four-box matrix with “U.S. Law” and “International Law” across the top, and “Authority to Act” and “Compliance in Execution” down the side. With a thorough legal review directed at each of the four boxes, we would make certain that all potentially relevant law is properly considered in a systematic and comprehensive fashion.

Curiously, Preston checks off the first box–authorization under US law before the op–by looking to Article II, not the AUMF Congress passed.

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

A specific congressional authorization might also provide an independent basis for the use of force under U.S. law. [my emphasis]

That’s interesting for several reasons. First, it situates the authority to use lethal force not in the stated basis OLC is using–the one SCOTUS has affirmed (sort of), but in Article II. Just where John Yoo would look to situate it.

This also means that CIA maintains it has this authority–presuming a Presidential Finding–outside the context of a declared war.

Finally, note Preston’s emphasis on imminent threat. I’ve already noted that Holder’s own speech was weakest precisely when suggesting Awlaki was an imminent threat because he was a top leader of AQAP.

In checking off compliance with the National Security Act, Preston emphasizes the Presidential Finding.

In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding.

I’m wondering whether Preston does this to avoid any compliance problems arising from CIA and DOJ’s refusal to answer Ron Wyden’s questions about the legal justification for killing Awlaki. Which would mean this check is very cursory, fulfilling only the bare minimum requirement but not ensuring that Congress has full understanding of the program.

In checking off his second box–compliance with international law–Preston does two interesting things.

Here we need look no further than the inherent right of national self-defense, which is recognized by customary international law and, specifically, in Article 51 of the United Nations Charter. Where, for example, the United States has already been attacked, and its adversary has repeatedly sought to attack since then and is actively plotting to attack again, then the United States is entitled as a matter of national self-defense to use force to disrupt and prevent future attacks.

The existence of an armed conflict might also provide an additional justification for the use of force under international law.

He situates self-defense in having already been attacked (another reason this seems to address Awlaki–and a case that doesn’t justify CIA’s covert ops against Iran). But he treats “the existence of an armed conflict”–and Congress’ declaration of war–as an optional plus again.

With regards to Preston’s third box, he wasn’t in charge when CIA exceeded the terms of OLC approval for torture. So I’ll forgive him for claiming that CIA strictly adheres to the limits included in authorization.

First, we would make sure all actions taken comply with the terms dictated by the President in the applicable Finding, which would likely contain specific limitations and conditions governing the use of force. We would also make sure all actions taken comply with any applicable Executive Order provisions, such as the prohibition against assassination in Twelve-Triple-Three. Beyond Presidential directives, the National Security Act of 1947 provides, quote, “[a] Finding may not authorize any action that would violate the Constitution or any statute of the United States.” This crucial provision would be strictly applied in carrying out our hypothetical program.

In addition, the Agency would have to discharge its obligation under the congressional notification provisions of the National Security Act to keep the intelligence oversight committees of Congress “fully and currently informed” of its activities. Picture a system of notifications and briefings – some verbal, others written; some periodic, others event-specific; some at a staff level, others for members.

I find this passage particularly interesting given what we know about the Finding that was pointed to as the authorization for torture (it’s likely the same one that authorized Awlaki’s killing). According to reports it authorizes the capture and detention of senior al Qaeda figures. It was very vague. And Preston’s predecessor has asserted the written finding did not authorize torture. Instead, CIA briefed–verbally, like Preston says sometimes occurs–the Gang of Eight (though in truth, according to the CIA’s own records, just the Gang of Four, after the fact) about the torture part. Preston seems to suggest the same kind of legal paper trail free briefing still goes on and (if I’m right this is all about Awlaki) went on in that case.

Also, if it all goes back to this Finding and verbal briefings after the fact, then it would explain why Preston situates his analysis in Article II authority: because the Finding in question–dated September 17, 2001–was issued before the AUMF–which was signed on September 18.

The rest of this–about not violating the Constitution of the United States–may well invoke the Scott v. Harris precedent that Charlie Savage says the government used to authorize the use of force against a US citizen (except that’s a difficult precedent to apply to CIA, given that, as Preston notes, the CIA can’t play a law enforcement role).

Which brings us, finally, to Preston’s reiteration that CIA abides by the principles of armed conflict.

Here, the Agency would implement its authorities in a manner consistent with the four basic principles in the law of armed conflict governing the use of force: Necessity, Distinction, Proportionality, and Humanity. Great care would be taken in the planning and execution of actions to satisfy these four principles and, in the process, to minimize civilian casualties.

But wait! I thought Congressional authorization was just gravy? To say nothing of the problems with the CIA performing these tasks rather than the military. But never you mind, the CIA will make sure to minimize civilian casualties. Except for maybe the 16 year old American son of the last guy they killed.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

9 replies
  1. thatvisionthing says:

    When does the “shocks the conscience” test get applied? It was something Michael Hayden said, that Clifford May took as free license to torture (Glenn Greenwald disagreed) — does it originate in the Constitution and apply to assassination too?

    CLIFFORD MAY: And various people read the law differently, understand. General Michael Hayden, who was CIA director, pointed out recently that the American standard is that which shocks the conscience. Well, you know, Warren, what shocks your conscience, what shocks my conscience, what shocks Glenn’s conscience, may be different, and it maybe be different under various circumstances…

    – If Awlaki’s dad had no standing to sue to stop his son’s assassination, there is no court case, thus presumably no shocks the conscience test, yes?

    – If state secrets and immunity abort all court cases, there is no shocks the conscience test, yes?

    – And if by some fluke I’m missing there was a trial and a jury was seated, wouldn’t that be a judicial pickle since juries are now instructed they are not to use their conscience, are not there to judge right and wrong?

    In short, what good is a legal test that can never be applied?

  2. Frank33 says:

    This also means that CIA maintains it has this authority–presuming a Presidential Finding–outside the context of a declared war.

    It is logical that the Secret Police should also be the Secret Assassins.

    It is also logical that assassination can be applied to any American citizen, who undermines or exposes the next war, for example Pat Tillman.

    Actually, this Assassination Rule, means, the President or the CIA can assassinate anyone they want to for any reason, if they say the magic words, “State Secret”.

  3. orionATL says:

    “…In other words, this is the CIA version of the speech Holder made…’

    my thoughts on the cia gc’s speech is that it is part of an ongoing administration effort to diffuse any criticism of obama for ordering al-awlaki’s death.

    i am not going to go chasing the specific cites, but i believe this is either the third or fourth public defense of obama’s assassination of american citizen, al-awlaki.

    in this particular defense, the cia’s preston cloaks the american-citizen assassination in the folds of the killing of boogie-man osama.

    nice obfuscation if you can get it, and the obama admin can.

    apparently, the president didn’t have any attack of conscience or respect for law that prevented his ordering the assassination, but now that the deed has been done, he and his advisors do seem to have a worry about something – a stain on his historical reputation, perhaps, or, worse, a fear of legal repercussions. too late. the precedent has been set.

    but this is a bigger issue than all that.

    on the president’s order, american paramilitary killed this american citizen who was a moral and intellectual leader of his people, and a revolutionary speaker, much like m.l. king was within his social context.

    it is for these qualities al-awlakii was assassinated – that’s what drone strikes are about, killing leaders.

    “imminent danger” is a lawyer”s sham justification.

  4. MadDog says:

    I notice that there’s no room in Preston’s Four-Box Death matrix for “collateral damage” as it is rationalized away by the order-givers, legal-sanitizers, and trigger-pullers.

    And that’s not a bug; it’s a feature!

    Normal folks avoid the euphemism and just speak the truth: Killing innocents!

  5. Bob Schacht says:

    “First is the issue of whether there is legal authority to act in the first place. Second, there is the issue of compliance with the law in carrying out the action. For each of these issues, we would look first, and foremost, to U.S. law. But we would also look to international law principles. So envision a four-box matrix with “U.S. Law” and “International Law” across the top, and “Authority to Act” and “Compliance in Execution” down the side. With a thorough legal review directed at each of the four boxes, we would make certain that all potentially relevant law is properly considered in a systematic and comprehensive fashion.”

    This isn’t just a 4-box, its a 2×2 matrix. That means each box requires TWO conditions. With respect to the first box, you say:
    “Curiously, Preston checks off the first box–authorization under US law before the op–by looking to Article II, not the AUMF Congress passed.”
    Here you are compressing the two conditions, “US Law” and “Authority to Act,” into one statement, which only the careful reader will understand.

    With respect to the second box, you begin your analysis by saying “In checking off his second box–compliance with international law–Preston does two interesting things.” This states only one of the referents. The other is “Authority to Act.” Preston tries to cover that in his answer, but you don’t discuss that explicitly, so the reader is apt to miss the double requirement of the box.

    Similarly, your discussion of the third box is fuzzy with respect to the two conditions of the box.

    So this analysis is not as clear and precise as your usual standard. When discussing a 2×2 box, it is best to keep the dual requirements of each box front and center, in order to check whether BOTH conditions were met.

    Caveat: I used to hang around with people who used to use 2×2 boxes whenever possible.

    Bob in AZ

  6. What Constitution says:

    In one sense, it’s nice to know that there appear to be some “in-the-know” government people actually trying to think through and rationally justify actions such as the killing of American citizens on the President’s order. On the other hand, to hear such proffered justifications dribbled out in Harvard speeches as “unofficial musings” — seemingly as plausibly deniable, “testing the waters” trial balloons — instead of as statements of official policy buttressed by testable assertions made in a context that is not dependent upon a presumption that there is no role for the courts and no place for public awareness of the “state secrets” involved, only places even greater emphasis on the utter absence of coherent and internationally plausible justification for such actions. This is the best the Obama Administration can or will offer? The thing is, it’s murder to kill a single individual because you think he advocates dangerous ideas, and it’s a violation of, oh, our most fundamental guarantees to deprive somebody of their life without due process of law.

    How long ago was it that the whole world did a doubletake, choked and then dismissed John Yoo’s suggestion that whatever the President ordered was OK as “self defense” because America was threatened with attack? And here it is again?

    Public debate. Thanks for trying.

  7. Publica says:

    Having read Preston’s remarks from your handy link, I was surprised how little he said to students at his old alma mater. His comments seemed uninformative and dull.

    Clearly, as CIA counsel he is trying to reach out to explain something, rub shoulders with the public or just connect with smart folks the CIA might want to recruit.

    Yet even an uninformed person like myself thinks, gee, the CIA has been through some crazy times.

    They’ve had a hard go of it in the last decade, what with the allegation that, by not bringing the FBI into the information loop, the agency might have missed an opportunity to prevent 9/11.

    Not to mention those seven CIA officials killed by the double- or triple-agent suicide bomber.

    I believe if the CIA wanted the public to understand them the could be more open about what’s going on, even within the bounds of secrecy, they might stop trying to be so circumspect about such sad failures.

    They might better try more openness about U.S. counter-terrorism goals in the present, in this sometimes quite turbulent and nasty world.

    Oh, and journalists aren’t the enemy.

  8. Bob Schacht says:

    @emptywheel:
    I wasn’t quibbling with the name, although calling it a four-box delinks the two constraints on each box, and makes it easier to skip over one of the constraints on each box. Calling it a four-box is just fine as long as one covers the dual constraints on each box. Of course, sometimes one of each pair of constraints may be relatively trivial and may take little time to deal with. Anyway, I appreciate the high standard of analysis that I usually find in your posts. Please keep up the good work!

    Bob in AZ

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