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Broadly Defined Lethal Powers

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Two documents have been made public this year that provide more information about the Obama administration’s targeted killing policy. The first is a Justice Department paper that describes the administration’s justification for killing American citizens who are living overseas and are thought to be terrorist leaders. The second is a letter from Attorney General Eric Holder on whether the government could kill an American citizen living within the United States. Both documents raise troubling questions about the expansive scope of the president’s ability to order people killed without trial.

The Justice Department paper was apparently provided by the administration to the Senate Intelligence and Judiciary Committees in June 2012, prior to being obtained by NBC News, which published the paper in January of this year.[i] The paper explains its purpose as setting forth a legal framework for considering the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force of al-Qa’ida—that is, an al-Qa’ida leader actively engaged in planning operations to kill Americans.[ii]

Use of such “lethal force” would be lawful, the paper argues, if

(1) an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and (3) the operation would be conducted in a manner consistent with applicable law of war principles. [The “applicable law of war principles,” the paper makes clear elsewhere, include discriminating between combatants and civilians and avoiding disproportionate unintentional harm to civilians.][iii]

Whether or not targeted killing would be justified if these requirements were observed is open to question. Later passages in the document raise disturbing questions, however, about how rigorously the administration observes even these requirements in practice.

The first requirement for a targeted killing is that the target must pose “an imminent threat of violent attack against the United States.” Later, however, the paper explains that “the condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”[iv] To wait for clear evidence to emerge of a specific attack in the near future, the paper argues, would be to give the terrorists too much time to prepare their attack and too little time for the United States to respond. Instead, a “broader concept of imminence” is necessary. The paper advises decision makers to

take into account that certain members of al-Qa’ida (including any potential target of lethal force) are continually plotting attacks against the United States; that al-Qa’ida would engage in such attacks regularly to the extent it were able to do so; [and] that the U.S. government may not be aware of all al-Qa’ida plots as they are developing and thus cannot be confident that none is about to occur.[v]

Having made these qualifications, the document explains that someone might pose an imminent threat if he is “an operational leader of al-Qa’ida or an associated force and is personally and continually involved in planning terrorist attacks against the United States.”[vi] If this “operational leader” has recently been involved in plots that posed an imminent violent threat to the United States, this is further reason for regarding him as currently posing an imminent threat.

Taking into account these qualifications, the “imminent threat” requirement becomes more permissive than it first appeared. Targeted killings, according to the Justice Department paper, need not be limited to situations where the target is involved in a definite, impending attack on American lives and lethal methods are necessary to thwart that specific attack. Instead, targeted killing can be used against someone whom an “informed, high-level official of the U.S. government” has determined to be an operational leader of al Qaeda or an affiliated group who is continually involved in plotting attacks on the United States, regardless of whether any specific future attack is imminent.

Whether or not a target holds a leadership position in al Qaeda and is involved in plots against the United States will presumably not be determined by putting the target on trial to determine his guilt but will be decided by extra-judicial means: the relevant “high-level official” will probably be not a judge or jury but someone in the Executive Branch making a decision based on intelligence agencies’ findings.

Given that formal trials within the imperfect American judicial system can lead to innocent people being convicted of crimes they did not commit, and given the notoriously unreliable nature of intelligence, this procedure all but guarantees that people who are not operational leaders of al Qaeda will be killed by mistake. Moreover, such a costly policy cannot be justified by invoking the emergency created by a definite, impending terrorist attack, as the paper explicitly divorces targeted killings from knowledge of a specific future attack. Instead of being a response to extreme crises, targeted killing without trial—and all the dangers to innocents it involves—is envisioned as being a relatively routine method in an ongoing campaign against al Qaeda and its associates.

Another worrying passage in the paper is a discussion of targeted killing’s geographical scope. A targeted killing operation outside the United States directed against al Qaeda members or their associates is called “consistent with international legal principles of sovereignty and neutrality if it were conducted, for example, with the consent of the host nation’s government or after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted.”[vii] This passage seems to say that the United States can lawfully kill an American citizen living in another country if a) the host country’s government agrees to the targeted killing; or b) the host country’s government does not agree, whether out of lack of will or capacity.

The question arises: under what circumstances would the United States not be justified in killing an American citizen in another country? All possible situations seem to be pronounced lawful here. The practical result, that the United States can kill any target anywhere in the world, with or without the host country’s consent, is highly disturbing. Such a policy threatens to make many enemies for the United States and possibly entangle the United States in other nations’ internal conflicts and divisions.

The Justice Department paper provokes one set of worries; the recent attorney general’s letter provokes another. The letter from Attorney General Holder, dated March 4, was sent to Senator Rand Paul (R-KY). The letter was in response to an inquiry from Senator Paul to John Brennan, President Obama’s nominee to be CIA director. Senator Paul asked Mr. Brennan if the president had the authority to order the targeted killing without trial of American citizens within the United States. Mr. Brennan referred the question to the attorney general, who replied by writing that

the U.S. government has not carried out drone strikes in the United States and has no intention of doing so. As a policy matter, moreover, we reject the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat…The question you have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no President will ever have to confront.viii