An Executive Assassination Ring?
Right now, today, there was a story in the New York Times that if you read it carefully mentioned something known as the Joint Special Operations Command -- JSOC it's called. It is a special wing of our special operations community that is set up independently. They do not report to anybody, except in the Bush-Cheney days, they reported directly to the Cheney office. They did not report to the chairman of the joint chiefs of staff or to Mr. [Robert] Gates, the secretary of defense. They reported directly to him. ...
"Congress has no oversight of it. It's an executive assassination ring essentially, and it's been going on and on and on. Just today in the Times there was a story that its leaders, a three star admiral named [William H.] McRaven, ordered a stop to it because there were so many collateral deaths.
"Under President Bush's authority, they've been going into countries, not talking to the ambassador or the CIA station chief, and finding people on a list and executing them and leaving. That's been going on, in the name of all of us.
The Joint Special Operations Command is a nominally secret branch of the U.S. Special Operations Command responsible for so-called "special mission units." In case you hadn't noticed, they're very, very special. Some of the special mission units are familiar; there's the first Special Forces Operational Detachment commonly known as the Delta Force; the Navy's top counterterrorism squad, the Naval Special Warfare Development Group (DevGru) or Seal Team Six. Others are less so; an elite group of signal intelligence collectors goes by various cover names; it existed in the Iraq War as "Grey Fox"; it has also been organized under "Capacity Gear" and "Titrant Ranger." The JSOC also includes various mission support units that provide technology for missions and cover stories for JSOC operators.
These are open secrets. CBS's "The Unit," about Delta Force, even fictionalizes real missions. Most JSOC missions remain highly classified, successful ones, anyway -- failures tend to be spectacularly public and tragic. Even the presidential decision directives that govern their conduct are redacted, leading to fairly informed speculation that the SMUs are given wide latitude to operative covertly and even the authority, at times, to conduct their missions on U.S. soil. (They had a presence at the 2004 inauguration.)
Hersh is alleging that secret presidential orders gave JSOC teams the broad authority to hunt down and kill terrorists without due process, turning them into a sort of "an executive assassination ring essentially." The rhetoric aside, we kind of knew that already; Under U.S. law, the State Department, through the agency of the ambassador, has to OK all such missions in the countries JSOC plans to work. In practice -- and possibly in law, too, this stricture is ignored when the President issues a classified finding. Most of the time, ambassadors tend to be notified, occasionally after the fact. Congress is briefed on many major operations, but it has no authority to ask for a list of current JSOC targets, and it probably has no way to intervene.
JSOC units are very active in Iraq and Afghanistan; in those countries, since the U.S. is formally at war, their conduct can't really be analogized to an extra-legal hit squad. Hersh is probably referring to their operations in other countries -- Yemen, for example, or Syria, or Iran, or perhaps in friendlier countries. What's objectionable, in theory, is that the President can designate anyone as a terrorist and task JSOC with finding and executing them -- even if the person is not living in the war theatre and has never been charged with a crime. In practice, that's what presidents from Richard Nixon to Ronald Reagan to Bill Clinton have believed.
I am not aware of a recent Supreme Court decision or federal case that limits the president's authority in this area as most recently exposited by the Bush Administration's John Yoo in one of his famous memos.
The executive branch makes no real distinction between assasinations and military action; the CIA tends to work with JSOC, although CIA case officers are generally more reluctant to pull the triggers themselves.
Obama has yet to weigh in on whether he believes that presidents inherently have this authority -- or whether they ought to.