The constitutional arguments against the Central Intelligence Agency’s assassinations of Anwar al-Awlaki and, two weeks later, his 16-year-old son have been widely discussed. Less well known, however, is the case against CIA assassinations to be made on the basis of the law of war.
Into the breach has stepped Howard University law professor Morris Davis, who in a recent column presented a well-researched case that the CIA’s drone assassination program is illegal under the law of war and that, as a result, CIA personnel participating in drone strikes could be prosecuted for murder.
Davis knows his subject well. He was a U.S. Air Force judge advocate for 25 years and served as chief prosecutor of the Guantanamo Bay military commissions from 2005 to 2007, resigning from that post in disgust at the use of torture to extract evidence from prisoners and the interference in the proceedings from the Pentagon. He is now executive director and counsel of the Crimes of War Education Project. In other words, Davis’ opinion on the matter of war crimes should not be taken lightly.
Central to Davis’ argument is the indisputable fact that the CIA is not an arm of the military but “a civilian agency made up of civilian employees and civilian contractors.” For those still not convinced, columnist Nat Hentoff reminds us that “when Gen. David Petraeus (who had led U.S. forces in Afghanistan) became the present head of the CIA, he removed his military uniform.”