More than torture: Zenko on CIA’s shift to targeted killing from detention

Yesterday, the New York Times ran a fascinating excerpt from correspondent Mark Mazzetti’s forthcoming tome, The Way of the Knife. The article splashed riotously, since it essentially confirmed what most observers had believed about the shift from capturing to killing terrorists. The piece is notable for at least two reasons: 1) it explicitly connects the policy shift to a scathing May 2004 report from CIA’s inspector general  (internal watchdog) John Helgerson on the agency’s detention and interrogation programs; 2) it recounts a tacit agreement between the CIA and ISI [Pakistan's intelligence service] that allowed drone strikes in the Pakistani tribal areas in exchange for Pakistan’s ability to have CIA take out targets on its behalf. In other words, CIA would target leaders that posed a threat to Pakistan, rather than the US, in exchange for the CIA being able to carry out unilateral strikes on its own targets in Pakistani territory.

So: fair enough, incredible reporting, confirmed what interested observers consider an accepted open secret. Yet it seems some have drawn bizzare inferences from the article, which bodes ill for our clarifying and codifying of targeted killing policy going forward. In particular, CFR’s stalwart drone watcher Micah Zenko offered an odd commentary on Mazzetti’s piece. He points out correctly that the shift came unilaterally: that CIA shifted by itself, with little input from NSC, WH, DOD, Justice, or State. Such a type of change is rather fascinating in the context of constant turf battles, which brings me to my two lines of criticism.

Zenko bafflingly draws the following conclusion from Mazzetti’s report:

Moreover, the CIA made this choice, not because they thought it was the best strategy, but reportedly because they did not think they were capable of detaining and interrogating individuals without also torturing them. And since they could not trust themselves not to torture, in order to avoid potential criminal prosecutions, suspected terrorists would have to be killed instead.

I have visions of a case officer sitting in a room, arguing with his colleagues over whether or not to torture a recently detained AQ lieutenant. The hours pass laboriously until finally he breaks down, shrugging and huffing and sheepishly yelling to the assembled team: “Aw, hell…I just can’t resist. Let’s get him, boys!” and then Jason Clarke unprofessionally beats the crap out of some guy without asking relevant questions while Kathryn Bigelow sits in the corner reassuring herself that her adherence to factual retelling is unimpeachable. Later she phones Ben Affleck and they congratulate each other on how drenched in reality their storytelling remains.

Anyway: first, I cannot see how Zenko’s interpretation follows from what Mazzetti’s reporting confirms. Specifically, the IG report and CIA did not conclude that the agency couldn’t detain militants without ineluctably torturing them. Rather, the report highlighted the fundamental inconsistencies in the Bush administration’s legal framework for the war on terror. They hadn’t the slightest idea of how to build a robust framework for interpreting who should or could be captured, detained, prosecuted, or killed. Nor did they have much of an inclination to do so.

My second point follows from the first: in the absence of civilian political leadership, CIA took the path of least resistance. Since no one at NSC or Justice would bother creating said framework–and since Langley was left holding the bag in every case–CIA made the rational choice and concluded that they would henceforth define the war on terror as an actual war–with all that entailed. Having been asked to engage in law enforcement and then told to violate the very core of traditional law enforcement interrogation techniques, none of these choices should be even remotely surprising.

In brief, far too much attention has been given to the decisionmaking at CIA, rather than the failure of policymakers at NSC and Justice. Thus we return to my earlier praise of Zenko’s other point; namely, that CIA undertook the policy shift by itself. Yet which is more likely: that policy input remained absent because no one else cared or thought it was a momentous change? Or did everyone else realize how controversial such a shift would become and foist it upon CIA? Zenko, it seems, comes down on the former side:

  I have asked Bush administration officials in the White House in the mid-2000s about this shift from capture to kill, and they claim there was no formal presidential decision, but rather a slow shift in emphasis that this was the preferred way to deal with terror threats.

Pick any one of the plethora of Bush-era national security recountings and you’ll find officials outside CIA quite aware of the policy shift, which renders absurd Zenko’s idea that the CIA went it alone on this. CIA had been tasked with an ill-defined mission that required significant effort and political risk to clarify.

As recently evinced in Klaidman’s Kill or Capture, the absolutely mind-boggling legal conundrums over GTMO detainees remaining when Obama took office give contemporary readers a poignant launching point from which to consider what Tenet and Goss thought in those early years. When we consider our current understanding of the legal framework for the war on terror, I cannot convincingly argue we have a much better handle on it. Everywhere the war on terror receives comment, one can identify the exact same fundamental questions being glossed over. We find ourselves in this state of affairs precisely because we’ve obsessed over downstream decisions by implementing agencies rather than the policymakers back at the source.

Put shit into the process, and you’ll invariably get shit at the other end.

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