Recent news reports have suggested that the White House is posed to transfer all responsibility over the country's drone program from the CIA to the Department of Defense. As it stands now, the CIA currently operates a parallel drone program in addition to the drones operated by the Pentagon's Joint Special Operations Command (JSOC). Critics have long complained that the CIA's involvement in drone strikes has produced a transparency-deficit in all respects, including target selection and criteria as well as collateral damage. For those critics, the possibility of transferring all authority to the Pentagon would be welcome news. In the past I have shared in this belief. However, it should be noted that JSOC is hardly a paragon of transparency -- its own operations are shrouded in secrecy as well (although perhaps somewhat less so than the CIA).
Besides the transparency issue, there are other legal reasons for welcoming the transfer of authority from the CIA to JSOC. As several commentators have noted, CIA operatives may not be entitled to the privilege of combatancy by virtue of the fact that they are not in uniform -- one of the key criteria under the Geneva Conventions for the privilege of combatancy. (The other requirements are wearing a distinctive sign recognizable at a distance, carrying arms openly, and participation in an organization that follows the laws and customs fo war). The privilege of combatancy is what allows regular soldiers to kill other soldiers during armed conflict. In regular peace-time operations, such killings are illegal unless justified by self-defense, whereas during armed conflict such killings are perfectly legal, as long as they are performed by individuals who hold the privilege of combatancy. Consequently, there are good reasons to applaud the Administration's move to get the CIA out of the drone business.
But several commentators have wondered whether the administration's proposal will result in any significant change on the ground. Specifically, they note that there is already a mix of CIA and DoD personnel involved in the operation of the drones "owned" by the CIA. Apparently the actual "pilots" of these drones are Air Force personnel and the CIA personnel simply perform targeting and other procedures related to when to fire the missiles.
All of this leads to two crucial questions that are under-studied in this entire area of the law. First, how should we evaluate the privilege of combatancy in situations where the weapon system is deployed with a mix of CIA and non-CIA employees? Which individuals are "carrying their arms openly" when the arms in question are being jointly carried by multiple individuals, some of which qualify for the privilege and others do not?
Incidentally, these "mixed" operations are of increasing importance and not just in the drone context. The Navy SEALS raid in Pakistan against Osama Bin Laden was a covert "Title 50" operation under the authority of the CIA director, though the troops were actually military personnel "on loan" to the CIA. These mixed operations will become even more frequent as the United States wishes to use force in areas of the world where it will disclaim responsibility for its actions.
Second, it is unclear to me if the privilege of combatancy can ever be consistent with covert action, regardless of which weapon system is used. If the action is not acknowledged by the relevant government, in what sense do our forces "carrying their arms openly"? Indeed, the whole point of covert action is that action is not conducted in an open manner. Under this argument, it would seem that covert CIA action is never entitled to the privilege of combatancy, regardless of whether the actual soldiers are CIA personnel or DoD uniformed employees reporting to the CIA director. I am not sure if this is the correct question or not, though I suspect that military personnel have not given this issue sufficient thought.
I continue to think and research this issue and welcome comments and insights from readers.