On September 30, 2011, Anwar al-Aulaki, a radical Islamist cleric and an American citizen, was killed in a targeted drone strike in Yemen.
Among the many legal questions raised by such an act, a most important and intriguing one relates to the legal status of certain CIA activities given the existence of 18 USC 119, a federal statute which prohibits the (actual or attempted) murder of an American citizen by another American citizen outside of the United States.
The Office of Legal Counsel (OLC) memorandum providing the Obama administration’s rationale for the strike was released last week, the result of a Freedom of Information Act lawsuit by the ACLU and the New York Times.
In the pages made available to the public (several remain redacted) David Barron, the former head of OLC (and now a federal appelate judge), argues in favor of a “public authorities justification,” and insists that federal statutes prohibiting murder and other crimes cover acts by individuals but not those by officers, such as CIA agents, duly authorized to undertake such acts on behalf of the government.
So far, the legal analyses published in response to the release of the “drone memo” have had nothing to say about one of the legal documents Barron relies on to reach such a conclusion. This is regrettable since this document, which Barron simply refers to as “8 Op. O.L.C. 58 (1984),” argues for the legality of CIA actions in the context of one of the most controversial acts of the Reagan years: the mining of Nicaragua’s harbors in April 1984.
Immediately upon entering the White House, President Reagan started dealing with what he repeatedly described as the “communist” and “terrorist” threat posed by the Sandinistas, who had taken power in Nicaragua in 1979, by giving covert aid to the so-called Contras.
As revelations in the press pulled his “secret war” from the shadows, many in Congress started questioning the morality and legality of such support. In response to such inquiries, the Executive systematically hid behind “secrecy” claims presented as necessary in the interest of “national security.”
In early April 1984, the nature of the United States’ involvement in that country changed drastically as several boats docked in Nicaragua’s harbors, including a Soviet tanker, were hit by mines, leading to severe material damage and several lives lost.
While the Contras claimed responsibility, to the Sandinistas such actions bore all the hallmarks of the CIA. Immediately, they lodged a formal complaint before the International Court of Justice.
For its part, the State Department assured it had “no further information on the incident,” adding: “We have received a protest from the Soviet Union charging U.S. responsibility, and we reject that charge.”
On April 8, unauthorized leaks revealed that the CIA (specifically, its so-called Unilaterally Controlled Latino Assets or UCLAs) had in fact been directly involved in laying these mines. As shown by a March 2, 1984 secret memorandum written by Oliver North, the agency had made prior arrangements asking the Contras to “take credit for the operation” to cover up its involvement.
In an eerie parallel, following a missile strike on a small village in south Yemen in December 2009, President Saleh immediately insisted that his air force had struck an Al-Qaeda training camp. In 2010, a cable published by Wikileaks exposed the existence of a secret agreement between Saleh and Washington aimed at covering up the US’s involvement in the strike, which reportedly killed forty-one people.
Following the revelations about the CIA mining, the late Senator Barry Goldwater wrote to Bill Casey, the Director of the CIA. Not mincing his words, the old Cold Warrior rhetorically asked the DCI “how can we back [the President’s] foreign policy when we don’t know what the hell he is doing?” and added: “Mine the harbors in Nicaragua? This is an act violating international law. It is an act of war.”
On April 9 and 10, countless Democrats and Republicans took to the floor to condemn these covert activities, while the Senate adopted a resolution (84-12) explicitly banning further funding for such practices by the CIA.
For many Democrats, not only were such policies immoral and illegal but they amounted to “terrorism,” thus putting the lie to the Reagan administration’s claim to be “fighting terrorism” in Central America.
In the House, David Bonior (D-MI), Theodore Weiss (D-NY) and George Miller (D-CA) insisted that the CIA mining had amounted to “state-supported” or “state-sponsored acts of terrorism.” Similarly, Ron Dellums (D-NC) stated that “mining ports is an act of terrorism,” adding: “to engage in state-sponsored terrorism is dangerous, it is immoral, it is unethical, it is unbecoming of one of the great superpowers of this world.”
In the Senate, Alan Cranston (D-CA) explained that the mining “amounted to our backing terrorism” while George Mitchell (D-ME) condemned the Reagan administration for continuing “its support of terrorists engaged in killing, in industrial and economic sabotage, and in the mining of the ports in Nicaragua.”
Referring to the rejection by the Senate of an amendment sponsored by Christopher Dodd (D-CT) and which would have explicitly stated that funds to the Contras should not go to the commission of acts of “terrorism,” Ted Kennedy (D-MA) lamented: “At the moment this body refused to prohibit the use of US funds for terror and sabotage in Nicaragua, US personnel were themselves engaged in acts of terror and sabotage.”
In that extraordinarily adversarial context, Reagan’s OLC was tasked with providing a legal analysis to counter accusations that the mining represented a violation of the Neutrality Act.
The result was 8 Op. O.L.C. 58, drafted by Theodore Olson on April 25, 1984. There, the head of OLC argued that Section 5 of the Neutrality Act, which forbids the planning of military or naval expeditions against a foreign state at peace with the US, applied solely to persons acting in their private capacity but not to officials, such as CIA agents, “acting within the course and scope of their duties as United States officers.”
On page 36 of the “drone memo,” it is precisely to this conclusion that Barron points to argue that CIA officers involved in a strike against al-Aulaki would not be covered by 18 U.S.C. § 956 (a), a federal statute prohibiting murder overseas.
Barron is completely silent, however, about the historical context of Olson’s memo; completely silent about the fact that the mining of Nicaragua’s harbors was met with near universal condemnation in Washington, including from dyed-in-the-wool Cold Warriors like Goldwater; completely silent about the fact that the Senate immediately adopted a resolution putting an end to any funding of such CIA activities; completely silent about the fact that countless Democrats described these CIA acts as “state-sponsored terrorism;” and, finally, completely silent about the fact that, in July 1986, the International Court of Justice ruled that the US, in laying these mines, had acted in breach of its obligations under customary international law.
Legal analysts have noted that a major worry flowing from the United States’ practice of “targeted killings” is that they may ultimately loosen the international rules that govern the use of force, thereby making everyone, including the American people, less safe.
That the conclusions of the Olson memo could be used, in July 2010, to argue that CIA officers would not be covered by a federal statute prohibiting the murder of an American citizen seems to confirm, yet again , the United States’ inability to discard some of the worst practices of its past.