07.28.11

Arrest Warrant Sought for CIA Lawyer

After reading a Newsweek article about a CIA-directed drone program, a human-rights lawyer calls for former agency official John Rizzo to be arrested. Tara McKelvey reports.

Clive Stafford Smith, a human-rights advocate, is trying to get a former CIA lawyer charged with murder, and he is turning to Pakistani officials for help.

Smith says he read about the lawyer, John Rizzo, in a Newsweek article, “Inside the Killing Machine,” that described his role in a government program to kill terrorists with unmanned aerial vehicles, or drones. In a telephone interview from his home in Dorset, England, Smith said he had been surprised at Rizzo’s cavalier manner during the interview, as Rizzo discussed CIA-directed killings with me over wine and steak in a Washington restaurant. “The Côtes du Rhône—that’s what really offends people,” says Smith.

On July 18, a Pakistani lawyer Mirza Shahzad Akbar, working with Smith, filed a formal complaint, or a First Information Report, in a police station in Islamabad, accusing Rizzo of murder and war crimes. The written complaint holds him responsible for the death of an 8-year-old boy, the son of Maezol Khan, who was killed by a missile early in the morning on February 14, 2009, while he was sleeping in a courtyard of his house in the town of Makeen, Pakistan. “There was no reason to kill him,” stated the complaint. “He was only 8 years old.” Smith leads a U.K.-based legal charity called Reprieve, and he believes Rizzo was complicit in the death of this boy, as well as of other individuals, and moreover, says that he “confessed to being guilty of murder” to Newsweek.

Rizzo did not respond to an emailed request for comment this week.

After a review of the complaint in the legal system, Pakistani officials could submit a request to Interpol, the international police agency based in Lyon, France, to put out a warrant for Rizzo’s arrest. This would mean, at least theoretically, that he could be apprehended in the United States or in any other country in the world.

The CIA-run drone program is covert, and U.S. officials are not supposed to discuss it. “For your story,” a CIA spokesperson wrote in an email, “you can feel free to say the CIA declined comment.” In Newsweek, however, Rizzo talked about the lethal strikes and described some of the procedures for determining how people are targeted for death.

Some CIA and military officials believe the article should never have been published on national security grounds, and that Rizzo is innocent. “He was not the trigger-puller,” says Scott Silliman, a Duke University law professor. “He was the attorney who was giving advice on international law.”

As the agency’s top lawyer, Rizzo was part of a bureaucracy that encompassed legal experts, analysts, drone operators and other civilians in Langley, Virginia, an apparatus that has expanded since he ended his tenure as acting general counsel in 2009. The number of drone strikes in Pakistan jumped from 53 in that year to 118 in 2010, with 45 strikes so far this year, according to a New America Foundation research project, “The Year of the Drone.” White House officials, speaking on background, tout the effectiveness of the drone program in Pakistan and in other countries and say that few, if any, civilians are killed in the strikes. And while they have not spoken specifically about the drone program, administration officials have vigorously defended the legality of targeting terrorists for death, even when these individuals are living far from a combat zone or in countries where the U.S. is not at war.

Many Pakistanis, however, condemn the use of the drones, saying such attacks violate the sovereignty of their nation—and that errant strikes are killing scores of innocent men, women, and children. Still, holding someone accountable for accidental deaths from the drone strikes is a challenge, and even those who are critical of the CIA program say that attorney Smith has embarked on a quixotic mission.

“Seeking an Interpol warrant through Pakistani officials probably will generate more international attention than it’s likely to lead to Rizzo in custody,” says Georgetown Law School’s Gary Solis, author of The Law of Armed Conflict.

“The idea of a rogue CIA is a fantasy.”

“There is no likelihood of the CIA responding, or of the U.S. taking the matter seriously, although it would add fuel to the flames of domestic protest in Pakistan,” wrote Philip Alston, a former United Nations special rapporteur on extrajudicial, summary, or arbitrary executions, in an email. “Rizzo’s interview with you seemed only to epitomize this impunity. But the real action needs to be in the U.S., where the administration and Congress both need to acknowledge that the CIA is currently setting precedents which would be disastrous if invoked by other countries to justify such conduct.”

Former CIA lawyers such as John Radsan, who served as assistant general counsel from 2002 to 2004, say Rizzo faced a complicated situation at the agency and acted with the support of the president. “The CIA people must be getting used to this stuff,” Radsan wrote in an email. “It’s the cost of taking unpopular actions our elected leaders decide are necessary for our security.”

As Radsan sees things, the efforts to prosecute Rizzo are misguided. “John’s view is that the CIA did what it was supposed to after 9/11: it got presidential authorization, briefed the programs to the oversight committees, and got outside lawyers from the Justice Department to clear everything,” wrote Radsan in an email. “The idea of a rogue CIA is a fantasy for people who don’t trust or like the United States.”