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The death by drone memo: a throwback to U.S. terrorism in Nicaragua

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A U.S. Predator drone. (Photo: U.S. Air Force/Lt Col Leslie Pratt)

A U.S. Predator drone. (Photo: U.S. Air Force/Lt Col Leslie Pratt)

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.

Rémi Brulin

Remi Brulin received his PhD at La Sorbonne Nouvelle (Paris) in 2011. His dissertation is a historical analysis of the American discourse on "terrorism," and can be accessed and downloaded here. He has taught at New York University, George Washington University and, currently, at John Jay College of Criminal Justice. You can follow him on Twitter here: @rbrulin.

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4 Responses

  1. lysias on July 2, 2014, 2:58 pm

    I would be very interested to learn the legislative history of 18 U.S.C. 1119 [note it’s 1119, nto 119], the statute prohibiting murdering U.S. nationals abroad. The circumstances that led to its passage might well undermine this claimed exception for U.S. officials.

  2. Patrick on July 2, 2014, 10:31 pm

    An excellent article – thanks.

  3. DICKERSON3870 on July 2, 2014, 11:25 pm

    RE: “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. ~ Rémi Brulin

    MY COMMENT: Forty-one people, hooah! ! ! Oh, the joys of cluster munitions! There’s a new UN treaty to ban them, but as to the U.S. signing it, fahgettaboudit (to borrow from the Jersey wiseguy goombahs on the Sopranos). The pantywaist international do-gooders will have to pry those suckas right out Uncle Sam’s cold, stiff fingers! Israel’s too!

    • DICKERSON3870 on July 2, 2014, 11:48 pm

      P.S. RE: “Forty-one people, hooah! ! !” ~ me (above)

      FOR THE “HOOAH”, SEE: “Images of missile and cluster munitions point to US role in fatal attack in Yemen”,, 7 June 2010

      Amnesty International has released images of a US-manufactured cruise missile that carried cluster munitions, apparently taken following an attack on an alleged al-Qa’ida training camp in Yemen that killed 41 local residents, including 14 women and 21 children.
      The 17 December 2009 attack on the community of al-Ma’jalah in the Abyan area in the south of Yemen killed 55 people including 14 alleged members of al-Qa’ida.
      “A military strike of this kind against alleged militants without an attempt to detain them is at the very least unlawful. The fact that so many of the victims were actually women and children indicates that the attack was in fact grossly irresponsible, particularly given the likely use of cluster munitions,” said Philip Luther, Deputy Director of Amnesty International’s Middle East and North Africa Programme.
      The Yemeni government has said its forces alone carried out the attack on al-Ma’jalah, the site of an alleged al-Qa’ida training camp in al-Mahfad district, Abyan Governorate.
      Shortly after the attack some US media reported alleged statements by unnamed US government sources who said that US cruise missiles launched on presidential orders had been fired at two alleged al-Qa’ida sites in Yemen.
      “Based on the evidence provided by these photographs, the US government must disclose what role it played in the al-Ma’jalah attack, and all governments involved must show what steps they took to prevent unnecessary deaths and injuries,” said Philip Luther.
      The photographs enable the positive identification of damaged missile parts, which appear to be from the payload, mid-body, aft-body and propulsion sections of a BGM-109D Tomahawk land-attack cruise missile.
      This type of missile, launched from a warship or submarine, is designed to carry a payload of 166 cluster submunitions (bomblets) which each explode into over 200 sharp steel fragments that can cause injuries up to 150m away. An incendiary material inside the bomblet also spreads fragments of burning zirconium designed to set fire to nearby flammable objects.
      A further photograph, apparently taken within half an hour of the others, shows an unexploded BLU 97 A/B submunition itself, the type carried by BGM-109D missiles. These missiles are known to be held only by US forces and Yemeni armed forces are unlikely to be capable of using such a missile.

      Amnesty International has requested information from the Pentagon about the involvement of US forces in the al-Ma’jalah attack, and what precautions may have been taken to minimize deaths and injuries, but has yet to receive a response.
      “Amnesty International is gravely concerned by evidence that cluster munitions appear to have been used in Yemen, when most states around the world have committed to comprehensively ban these weapons,” said Mike Lewis, Amnesty International’s arms control researcher.
      “Cluster munitions have indiscriminate effects and unexploded bomblets threaten lives and livelihoods for years afterwards. All governments responsible for using them must urgently provide assistance to clear unexploded munitions.”
      Neither the USA nor Yemen has yet signed the Convention on Cluster Munitions, a treaty designed to comprehensively ban such weapons which is due to enter into force on 1 August 2010. . .


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