Warrick on the CIA's War: The 2008 Shift from Drone-Strikes-by-Permission to Drone-Strikes-with-Notification

Joby Warrick  (of the Washington Post) provides a number of fascinating nuggets regarding CIA activities in Pakistan in his just-published book The Triple Agent: The al-Qaeda Mole Who Infiltrated the CIA, which I strongly recommend.  I’m not aware of a better historical account of the evolution of the CIA’s drone strike program in recent years, nor one that captures in such detail just what it is that the CIA has been asked to do by way of attacking al Qaeda in Pakistan.   Consider Warrick’s account of the sharp acceleration of drone strike activity in Pakistan from 2007 to 2008.  The fact that drone strikes accelerated after the Obama Administration is well known, but one does not often hear about the significant acceleration that began one year earlier.  Explaining that earlier shift, Warrick writes:

Eventually, Pakistani leaders agreed to allow a limited number of Predator strikes, and for months Washington and Islamabad engaged in an awkward dance over when an attack was permissible.  If the CIA discovered a potential target, the agency could pull the trigger only after both governments agreed.  In practice, it rarely happened.  “If you had to ask for permission, you got one of three answers: either ‘No,’ or ‘We’re thinking about it,’ or ‘Oops, where did the target go?’” said a former U.S. national security official who was involved at the time.  A whole year passed without a single significant success against al-Qaeda on its home turf. “We’re at zero for ’07,” Hayden complained to the White House. After months of debate Bush decided in July 2008 to give the CIA what it wanted.  News reports later characterized the policy change as an informal agreement by Pakistan to allow more U.S. air strikes in remote tribal regions that were largely outside of Islamabad’s control.  In reality, the shift was much simpler: The CIA stopped asking for permission.  The new policy, communicated to Pakistani officials in a meeting that month, required only “simultaneous notification” when the strikes occurred.” Over the next six months Predators hit targets in Pakistan thirty times, more than triple the combined number of strikes in the previous four years. (The Triple Agent, p. 13).

Let’s assume this is accurate.  From a legal perspective, this impacts how the U.S. could defend its drone strikes against objections from Pakistan grounded in Article 2(4) of the U.N. Charter.  Specifically, it weakens the argument that the U.S. has or had (private) consent from Pakistan to engage in drone strikes, though it does not eliminate that argument; difficult questions arise as to whether it is possible to consent by acquiescence, if so what the measure of sufficient acquiescence would be, and so forth.  On the other hand, the account bolsters the alternative argument to the effect that Pakistan is or was unable or unwilling to act effectively to address the presence of al Qaeda within its borders.  I’ll post next on passages in The Triple Agent that speak to the question of proportionality concerns relating to drone strikes.