by Carr, Jack
Lowe had given Motley a heads-up prior to the meeting, so she was prepared to field any questions that came her way. She and Vic were the only two holdovers from the previous administration in the room, and both agreed with the need to continually assess the effectiveness of their programs.
“Just to be clear,” the president said, “I want to ensure we are conducting ourselves in a manner befitting the ideals we want to exemplify to the rest of the world. We now have twenty years of data to examine; it is imperative we weigh the results against the unintended consequences. Just because we’ve always done it one way doesn’t mean we will continue to do it that way. This briefing serves as much as an education for me as it does for all of us to study a decades-old program spanning what is now four administrations.”
“Thank you, Mr. President,” Farber continued. “I think all of you know Mitch Cohen, White House counsel.”
Mitch pushed his wire-rimmed glasses up onto the bridge of his nose and cleared his throat. His wrinkled suit looked like he’d slept in it, which he probably had. A thin man with unkempt hair, his appearance had caused more than a few to underestimate what was a superb legal mind. During his time at Harvard Law School he clerked for a justice of the Supreme Court of Israel when they heard a challenge to what their press called Chissulim, eliminations. Though his success in private practice focused on commercial litigation, intellectual property, defamation, and antitrust trade regulation, he’d never forgotten the lessons he’d learned in the land of his parents’ birth, a country his grandparents had helped carve out of the desert when the tattoos on their forearms were just beginning to fade.
“As you are all aware, the legal basis for both our extreme rendition program and our targeted strike program comes from the AUMF, the Authorization for the Use of Military Force, passed into law on September 18th, 2001. The oft-cited prohibition on assassinations from Executive Order 12333, United States Intelligence Activities, does not legally apply to legitimate military targets. It applies to heads of state. The targets are selected by our seventeen intelligence agencies led by the DNI, along with intelligence from the DoD, CIA, NSA, NRO, and NGA. Our criteria was based on the Israeli program, but unlike the United States, the Israeli intelligence services and military branches were given direction by their supreme court. All eliminations require adherence to four criteria: one, the target must be designated a combatant and more importantly the targeting agency must have evidence that the target is a combatant; two, the targeting agency must present reasons why arrest is not a feasible course of action; three, the targeting agency must consider collateral damage; and four, there must be an investigation after the fact.”
“Excuse me, Mitch,” the president interrupted to address the group. “I want to run a cost-benefit analysis on these strikes and renditions. Are they worth the return on investment, not of the missile that kills them but of the political and moral capital of the United States? Are we creating more terrorists for our next generation to fight both at home and abroad?”
The president’s wording struck Vic as peculiar. At home? Targeting on U.S. soil? If anyone else noticed, they did not bring it into the discussion.
“Go ahead, Mitch.”
“In the United States we have operated by three principles since the attacks of September 11th, 2001. In accordance with the AUMF, a targeted individual must pose an imminent threat to the nation; their capture must not be feasible; and the operation would be conducted in accordance with the principles set forth in the laws of armed conflict.”
“But no requirement to investigate after the fact.” It was a statement, not a question.
“No, Mr. President.”
Christensen looked to the DNI.
“Admiral, in your experience at JSOC and since coming on board as DNI, have we followed those three requirements?”
“Yes, Mr. President. The collateral damage assessments are crucial to a green light. Our policy is not to authorize a strike if there is the possibility of any noncombatant casualties. The enemy knows this and have incorporated that information into their order of battle. They keep women and children close. I’m not saying we haven’t made mistakes, but collateral damage is always at the forefront of the decision-making process.”
“Thank you, Admiral. Mitch, please continue.”
“Yes, sir. The president has the authority to authorize targeted elimination operations and indeed has the responsibility to do so, which is derived from his constitutional authority to protect the American people. Targeting a U.S. citizen is lawful if that citizen has joined al-Qaeda or an associated terrorist organization or is providing support for imminent terrorist operations. The Supreme Court has found that the use of force is justified against U.S. citizens who have taken up arms against their country or pledged allegiance to a terrorist organization; it is consistent with the Fourth and Fifth Amendments. Targeting a citizen posing a clear and present danger would not violate criminal provisions, nor would it constitute a war crime. Congress has authorized the president to use all ‘necessary and appropriate’ force against al-Qaeda and its associated terrorist organizations through the AUMF. Also supporting this opinion is the national right to self-defense via international law, specifically UN Charter, article fifty-one.”
“Are there any territorial parameters?” the president asked.
“Sir, the AUMF does not specify geographic limitations. It’s termed a ‘non-international armed conflict.’ ”
“What constitutes an imminent threat?”
“If there is a gray area here, that’s it, sir. As we all know, war with proxies, nonstate actors, and super-empowered individuals like bin Laden is not a conventional war between nation-states with clearly defined areas of operation. Terrorist organizations are continually planning. If they conducted an operation in the past there is a high probability that they are still in the network and planning future attacks; therefore a targeted elimination would not be an act of revenge, but an act of self-defense to protect the American people from violence.”
“If I may, sir,” Farber interjected, “the concept of imminence is subject to interpretation, meaning it must be formulated and argued. Does imminent constitute a day, a week, or a month? And there is no guarantee that a window to strike based on actionable intelligence, which might also be the only window, will align perfectly with a predetermined criterion of imminence.”
“Thank you, Greg,” the president responded, turning back to the White House counsel. “If it has been determined that members of a terrorist organization have planned attacks in the past, then legally, whether a day has passed or twenty years, they remain viable targets. Is that correct?”
“Legally, yes,” Cohen answered.
“And rendition operations fall into that legal framework?”
“Yes, sir, providing adherence to the law-of-war principles: necessity, distinction, proportionality, and humanity, i.e., collateral damage.”
“Have they forfeited their rights as U.S. citizens?” Admiral Lowe asked.
“Yes, actions hostile toward the United States constitute a forfeiture of citizenship. Legally, they would still be targetable with lethal force due to imminent threat, but to answer your question directly, a U.S. citizen gives up his or her citizenship, what the law calls a ‘loss of nationality,’ when he or she engages in hostilities against the United States. U.S. citizenship does not guarantee immunity in armed conflict. The Supreme Court has held that the president may authorize lethal force against a U.S. citizen who is an enemy combatant. It is considered an act of treason; a capital crime. A lawfully targeted elimination is consistent with the principles of national self-defense. The important takeaway, Mr. President, is that lethal force cannot be used as a punishment for past acts, only to prevent future acts, as with Admiral Yamamoto in World War Two.”
“I’m clear on the legality. Ms. Motley,” the president said, addressing his CIA director. “What is the position of the CIA?”
“Mr. President,”
Motley said, “my organization operates in accordance with strict criteria: the target is confirmed as present and there are no noncombatants within the blast radius, capture is not feasible, the foreign government is not capable of addressing the threat to the United States, and no other reasonable alternatives exist.”
“And in terms of effectiveness? Are we just creating more terrorists in a game of whack-a-mole?”
Janice Motley had risen through the ranks on the Hill, first as a legislative assistant before becoming the lead staff attorney for the Senate Select Committee on Intelligence. It was in that position where she had caught the eye of the then CIA director, who began grooming her for an executive position in America’s premier intelligence organization. She would eventually become the staff director of the SSCI, before accepting a position on President Obama’s national security transition team, which would lead her to acting director of the National Clandestine Service and then into the role of America’s top spy. She was the second female director in CIA history and the first African American woman to hold the position. Those who briefed her would walk in familiar with her background and reputation as one of the smartest people in the Beltway. They would walk out with a newfound respect; in addition to being a brilliant strategist, she was tough as nails.
“That is certainly a probability, Mr. President.”
“Then why do we continue to execute a policy with long-term results inconsistent with the investment?”
Without missing a beat, the director of the CIA answered the query: “Previous administrations have continued the program and even escalated it to keep the enemy off balance, Mr. President. Our signals intelligence supports the contention that while it does assist in enemy recruitment efforts, it also continues to disrupt the planning process. I’ll have my office send over a classified white paper detailing the threats to the homeland prevented by the strike program.”
“It’s insurgent math, Mr. President,” Admiral Lowe offered.
“Insurgent math?”
“For every terrorist killed, we create ten more. Stan McChrystal arithmetic, Mr. President.”
“I see.”
“Administrations of both parties have operated under the president’s constitutional authority to protect the nation,” Cohen added. “These actions are supported by Al-Aulaqi v. Obama and Hamdi v. Rumsfeld, the inherent right of the United States to protect itself under international law, and the congressional authorization for the use of military force against AQ and associated groups.”
“I’d like to hear Mr. Rodriquez’s thoughts,” the president said.
In his early fifties, Vic was the most junior member of the group. He remembered asking new members of his Special Forces ODA for their opinion during debriefs when he was a young SF captain with 7th Special Forces Group. The president was a veteran and was doing the same thing.
“Sir, my team has studied this at length in accordance with the office of the general counsel at CIA. As you are aware, my department offers another option if the conversation in question is specific to the effectiveness of using unmanned aerial vehicles to deliver a lethal payload. The enemy can use Google just like the rest of us. They have studied our tactics and know exactly what we just discussed in this secure conference room. They know our aversion to collateral damage, which is why you rarely find senior al-Qaeda or ISIS leadership alone. They surround themselves with noncombatants, specifically women and children. My office offers a different option, one that is much more personal and also more dangerous from a commitment of forces standpoint. A single operative or a small team from my side of the house can, at times, be a viable alternative.”
The president looked at his national security advisor and then back at the leader of the CIA’s paramilitary division.
“Assassins?”
“No, Mr. President. Hunter-killers. Ground Branch operatives who understand the nature of the conflict necessitates them getting close to eliminate the threat, limiting collateral damage that can’t be positively identified from a Reaper firing a Hellfire at fifty thousand feet. A covert action statute authorized under title fifty of the U.S. code is an option we’ve exercised in the past.”
“Director Motley.”
“Mr. President, this agency is not in the business of creating more terrorists. The targeted killing program under President Obama rose to levels inconsistent with desired end results. Human intelligence networks with proxy forces targeting the enemy run by Ground Branch operators are high risk, but they lower the potential of creating more terrorists vis-à-vis the insurgent math Admiral Lowe referenced. When a Hellfire hits a moving vehicle from out of the blue, there is only one country to blame: the United States. An IED or well-placed bullet, on the other hand, well, responsibility for that type of operation offers plausible deniability.”
Alec Christensen leaned back in his chair and touched both forefingers to his lips.
“My duty as president of the United States is to protect the American people. Having fought in Afghanistan I am distinctly aware that we now have soldiers patrolling those same mountains who were not even born on September 11th, 2001. They are fighting the sons of men we targeted in the opening years of the war. It is my job to see that the grandchildren of those I fought don’t put Americans in the sights of their AKs. Find me solutions. I want a briefing on the Disposition Matrix, the kill list for lack of a better term, with best- and worst-case scenarios attached to each target. And I want options other than UAVs,” he said, looking directly at Vic. “Greg will coordinate a follow-up meeting. Now, let’s go through today’s PDB.”
For the remainder of the briefing, questions were directed to Motley and Lowe by the president and his national security advisor. Vic’s mind focused on the fact that his office might be getting a lot busier in the weeks and months ahead. It scarcely registered that the President’s Daily Brief contained information on a hemorrhagic virus outbreak in Angola and that 457 people had perished before it had been contained by the World Health Organization.
* * *
Director Motley and Vic Rodriguez exited the Situation Room and took the stairs up to West Executive Avenue, where the director’s motorcade was waiting to take them back to Langley. They did not speak until the heavy door to the up-armored black Suburban closed behind them.
“That was interesting,” Vic said.
Motley nodded, still deep in thought.
“I know you have teams downrange working through host nation forces, but from the tone of the briefing we might be taking a more unilateral approach.”
“It certainly sounded like the president does not favor relying on UAVs as the preferred method of engagement,” Vic agreed.
“I’ll have counsel compile a history of the legal justifications for each targeted elimination and rendition since the AUMF. We certainly don’t want any of our people in the hot seat at the change of administrations like we had with enhanced interrogations.”
That she immediately thought of protecting those on the ground doing the nation’s work was why she had the respect of the case officers, paramilitary officers, and contractors she led. It was a rare quality in Washington.
“I agree. I get the feeling the president is after more than just finishing what was started under the Bush administration,” Vic noted.
“I had that feeling as well.”
“Did you catch the U.S. soil comment?” the former Special Forces officer asked his boss.
“I did.”
“There’s something else at play,” he said.
“What do you make of it?”
“I think it has something to do with James Reece.”
CHAPTER 16
Denver, Colorado
DR. ALI REZA ANSARI pulled his rental car close to the curb in front of the aging home. A green Subaru, extremely popular in these parts, was parked in the driveway. Ali noted that it had not been backed in. The bike was on the roof rack, signaling that it was safe to approach. Still, Ali was cautious. If the FBI
were onto them, this would be the time they would make their arrests, before the deadly virus could be replicated.
Ali had supervised the construction from afar. The hawala network transferred more than funds; it passed information. The network of couriers had no idea what they were passing, or why. The messages had been hand carried from Switzerland into the United States. Ali suspected he would have to make a few adjustments, but as long as all the materials were there, and the monkey kidney cells had been prepared as he had instructed, he would be able to complete the next phase of the operation. His priority was to use the scanning electron microscope to ensure the cells contained no contaminants and exhibited the stable growth factors necessary to cultivate the virus.
He had informed BioDine that he’d decided to take two weeks and tour the United States before returning to Europe. He would be reachable for Zoom conference calls and would be answering his emails.
The drive from the East Coast had taken four days. He could have done it in two, but he’d explored along the way, not because he was interested in the sights and history between the Atlantic seaboard and the Continental Divide, but because he was looking for surveillance. He was certain that the Americans were not conducting physical surveillance, but these days, with drones and the interconnected web of the surveillance state, it was nearly impossible to tell if they were tracking you electronically. Ali had always been careful. All his military, intelligence, medical, and business training had culminated in what he was about to do. This was his moment of truth.