By Philip Alston* –
This Article focuses on the accountability of the Central Intelligence Agency (CIA) in relation to targeted killings, under both United States law and international law. As the CIA, often in conjunction with Department of Defense (DOD) Special Operations forces, becomes more and more deeply involved in carrying out extraterritorial targeted killings both through kill/capture missions and drone-based missile strikes in a range of countries, the question of its compliance with the relevant legal standards becomes ever more urgent. Assertions by Obama administration officials, as well as by many scholars, that these operations comply with international standards are undermined by the total absence of any forms of credible transparency or verifiable accountability. The CIA’s internal control mechanisms, including its Inspector General, have had no discernible impact; executive control mechanisms have either not been activated at all or have ignored the issue; congressional oversight has given a “free pass” to the CIA in this area; judicial review has been effectively precluded; and external oversight has been reduced to media coverage that is all too often dependent on information leaked by the CIA itself. As a result, there is no meaningful domestic accountability for a burgeoning program of international killing. This in turn means that the United States cannot possibly satisfy its obligations under international law to ensure accountability for its use of lethal force, either under IHRL or IHL. The result is the steady undermining of the international rule of law and the setting of legal precedents which will inevitably come back to haunt the United States before long when invoked by other states with highly problematic agendas.
* John Norton Pomeroy Professor of Law, New York University School of Law. The author was UN Special Rapporteur on extrajudicial, summary or arbitrary executions from 2004 until 2010. I am deeply grateful to William Abresch, Nehal Bhuta, Gráinne de Búrca, Ryan Goodman, Sarah Knuckey and Neil Walker for very insightful comments on an earlier draft. Work on this Article was supported by a grant from the Max Greenberg and Filomen d’Agostino Research Funds at the NYU School of Law.