The Fifth Function - Targeted Killing

The following paper dated May 11, 2009, and entitled "Targeted Killing in U.S. Counterterrorism Strategy and Law" is a Working Paper of the Series on Counterterrorism and American Statutory Law, is a joint project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution.

The author, Kenneth Anderson, is Professor of Law, Washington College of Law, American University, and Research Fellow, The Hoover Institution, Stanford University.

Targeted Killing in U.S. Counterterrorism Strategy and Law
www.cryptome.org...

American domestic law—the law codifying the existence of the CIA and defining its functions—has long accepted implicitly at least some uses of force, including targeted killing, as self-defense toward ends of vital national security that do not necessarily fall within the strict terms of armed conflict in the sense meant by the Geneva Conventions and other international treaties on the conduct of armed conflict.

Modern U.S. statutory authority for non-law enforcement exercises of force by “intelligence” actors begins with the National Security Act of 1947 that created the CIA and granted it authority to engage in a wide variety of intelligence activities. The 1947 Act also authorized the performance of “additional services of common concern” and “such other functions and duties related to intelligence affecting the national security as the President or the National Security Council may direct." The reference to “other functions and duties” —commonly termed the ‘Fifth Function’—is deliberately obscure....

The American law that most closely addresses targeted killing outside of armed conflict is not a statute. In the Church committee hearings in Congress in the mid-1970s, the CIA’s role in various assassination attempts in earlier years became public and a matter of widespread outrage. In the public uproar that followed, the Ford Administration issued an Executive Order banning U.S. government employees from engaging in or conspiring to engage in political assassination.86 This order was repeated in slightly varying language by President Carter87—who unaccountably dropped the word “political” —and finally reissued in the form still in force today, Executive Order 12333 by President Reagan. The pertinent section reads: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination

The ultimate lesson for Congress and the Obama Administration about targeted killings is “Use it or lose it.” This is as true of its legal rationale as it is of the tool itself. Targeted killings conducted from standoff platforms, with improving technologies in surveillance and targeting, are a vital strategic, but also humanitarian, tool in long-term counterterrorism. War will always be important as an option; so will the tools of law enforcement, as well as all the other non-force aspects of intelligence work: diplomacy and coordination with friends and allies. But the long-standing legal authority to use force covertly, as part of the writ of the intelligence community, remains a crucial tool—one the new administration will need and evidently knows it will need. So will administrations beyond it.

reply to post by BetweenMyths


My only problem with 'The Fifth Function' as a peacekeeping tool is that one simply cannot trust those who wield it.

A few well placed bullets would solve a lot of problems. I'm convinced that if certain rocket makers in the middle east (whoever they are working for) were surgically removed, there'd be a lot less conflict. A few arms dealers, agents provocateurs, and so forth...

But to whom would you grant that power? Certainly not the CIA.