Georgetown law professor Gary Solis wrote an article in yesterday's Washington Post called, "CIA drone attacks produce America's own unlawful combatants." The thrust of the column is that since the CIA is not part of the uniformed military, their role in hostilities makes them unlawful civilian combatants.
No less than their insurgent targets, they are fighters without uniforms or insignia, directly participating in hostilities, employing armed force contrary to the laws and customs of war. Even if they are sitting in Langley, the CIA pilots are civilians violating the requirement of distinction, a core concept of armed conflict, as they directly participate in hostilities.This is true, but it's also completely irrelevant as an argument against the drone campaign. It merely states the obvious, and demonstrates why viewing wars through a legalistic lens is pointless and counterproductive.
As I have noted many times on this blog, the main reason countries have covert intelligence agencies, is to conduct operations which are by definition illegal. Most covert operations blatantly violate the laws of whatever country they occur in, international law, and often domestic law -- that's one major reason why CIA operations within the United States are tightly restricted. Saying that CIA actions in killing enemy targets are the acts of illegal combatants is utterly meaningless. Doing illegal things is its mission. Of course CIA operators will be viewed rightly as illegal combatants by enemies.
If captured, the unlawful acts committed during their direct participation makes them subject to prosecution in civilian courts or military tribunals. They are not entitled to prisoner-of-war status.I seriously doubt any CIA covert operator has illusions on this score. Spies, saboteurs, assassins, and other types of illegal combatants do not, and should not have legal protection -- and have not traditionally, except for "legal" spies with diplomatic cover.
By viewing the drone campaign as a military operation involving the CIA as illegal civilian combatants, Solis has it exactly backward. The drone campaign is an assassination program aimed at eliminating specific individuals. The military is assisting the CIA in carrying out assassinations. If he wanted to make a legal argument of some relevance, he might reasonably argue that the military shouldn't be openly supporting assassinations. But overall, his article illustrates yet again just how useless legalism is when applied to warfare. Ivory tower debate over laws and rules when applied to warfare has little impact, except to possibly impose more restrictions on those who actually follow rules -- in this case our side. And legalism applied to the actions of an organization designed to operate outside the law is both stupid and dangerous. It's stupid because it ignores the nature and purpose of the CIA, and it's dangerous because it imposes restrictions that cripple the ability of the CIA to carry out its missions.