In our age of unmanned drones and kill lists, how does an American citizen know whether his own government might decide it’s necessary and lawful to kill him? Or in Justice Department language, erroneously deprive him of his life?
This is a question that many advocates and politicians, including a group of eleven senators who recently wrote to the president, have been trying to answer. A leaked Obama administration memo that outlines parameters for what it determines would be a lawful killing of an American citizen gives us a starting place.
Not surprisingly, digging through the dense legal language raises more questions than it answers. And it will hardly reassure those of us who have been deeply disturbed by what we already know about the targeted killing program. Here are some of the key questions that surface in my non-lawyerly reading of the memo:
How do you define “imminent”?
The memo repeatedly argues that in order to lawfully kill someone who is determined to be a “senior operational leader of al-Qa’ida or an associated force,” the first criteria is that 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.” On the surface, this may sound reasonable to some. If you envision someone about to launch an attack that would kill Americans, I’m sure there are people out there who would support taking that person out. But like the clichéd ticking time bomb torture scenario that only occurs when Kiefer Sutherland is in the room, this last-ditch effort to save lives is not what the Justice Dept. is talking about here.
In fact, they argue that this criteria “does not require the United States to have clear evidence that a specific attack on U.S. persons or interests will take place in the immediate future.” Instead, a “broader” concept of imminence is called for:
Thus, a decision maker determining whether an al-Qa’da operational leader presents an imminent threat of violent attack against the United States must 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-Qaida would engage in such attacks regularly to the extent it were able to do so; that the U.S. government may not be aware of all al-Qaida plots as they are developing and thus cannot be confident that none is about to occur; and that, in light of these predicates, the nation may have a limited window of opportunity within which to strike in a manner that both has a high likelihood of success and reduces the probability of American casualties.
Translation: anyone associated with al-Qa’ida is always plotting against the United States, and would be attacking us if they could, so we don’t have the luxury of waiting around for specific evidence?
Update: Spencer Ackerman at the Danger Room blog has a good rundown of the accepted ideas around “imminence” and how the memo steps outside them.
Who is a senior operational leader of al-Qa’ida?
The phrase “senior operational leader” is used frequently throughout the memo. While it doesn’t specifically mention Anwar al-Alwaki, the American citizen killed in Yemen, he is the example we all are looking to in sorting through these justifications. But Yemen expert Gregory Johnsen sees al-Awlaki’s importance as greatly overstated:
He is far from the terrorist kingpin that the West has made him out to be. In fact, he isn’t even the head of his own organization, Al Qaeda in the Arabian Peninsula. That would be Nasir al-Wuhayshi, who was Osama bin Laden’s personal secretary for four years in Afghanistan.
Nor is Mr. Awlaki the deputy commander, a position held by Said Ali al-Shihri, a former detainee at Guantánamo Bay who was repatriated to Saudi Arabia in 2007 and put in a “terrorist rehabilitation” program. (The treatment, clearly, did not take.)
Mr. Awlaki isn’t the group’s top religious scholar (Adil al-Abab), its chief of military operations (Qassim al-Raymi), its bomb maker (Ibrahim Hassan Asiri) or even its leading ideologue (Ibrahim Suleiman al-Rubaysh).
Rather, he is a midlevel religious functionary who happens to have American citizenship and speak English. This makes him a propaganda threat, but not one whose elimination would do anything to limit the reach of the Qaeda branch.
The memo makes clear that it’s saying these aren’t even necessarily the minimum requirements for a lawful operation, only that these requirements would add up to a lawful killing. So do they consider al-Awlaki a senior operational leader despite evidence to the contrary? Does taking out a propaganda mouthpiece for AQAP make Americans safer? Is it worth the terrifying precedent that his assassination has set?
Who are these “informed, high-level officials”?
The memo doesn’t answer that question. But these people have a lot of power in applying that broad definition of imminence to potential threats. Of course it’s important to think about this question broadly. For those who still trust President Obama’s judgment on these matters (despite an abysmal record on what we know and a brick wall of secrecy blocking what we don’t), these justifications aren’t going away in 2016
What happens when the government wants to apply these rules to people other than “al-Qaida and associated forces”?
In several places, the memo cites the 2001 Authorization for the Use of Military Force that allows the government to use all “necessary and appropriate” force. While that authorization has always been questionable, it becomes more and more tenuous more than a decade later as al-Qaida’s power wanes. But the memo also notes that the use of force in these cases is lawful “under other principles of U.S. and international law.”
So what happens when the US government decides to kill an American citizen associated with some other supposed threat to the United States? Will the president go to Congress for authorization, or will the other branches of government have an even more diminished role in the use of lethal force in the name of our security?
Where does the battlefield end?
One criticism of the use of unmanned drones to kill Americans and others is that it involves using force in countries with which we are not at war. The memo acknowledges that there is little precedent to define the geographic scope of what it determines is a “non-international armed conflict.” The memo points out that no branch of government has determined a limitation on the geographic scope of the 2001 AUMF.
If an operation of the kind discussed in this paper were to occur in a location where al-Qa’ida or an associated force has a significant and organized presence and from which al-Qa’ida or an associated force, including its senior operational leaders, plan attacks against U.S. persons and interests, the operation would be part of the non-international armed conflict between the United States and al-Qa’ida recognized in Hamdan.
What constitutes a significant and organized presence? The 9/11 attacks were partially planned by a cell in Hamburg. Other planners were in the United States for years before the attack. Thus far, restraint has not been a hallmark of this policy.
Throughout the memo, the DOJ is clearly bending over backwards to justify murder by the government as legal by U.S. standards. They quote legal doctrine espousing that “deeds which otherwise would be criminal, such as taking or destroying property, taking hold of a person by force and against his will, placing him in confinement, or even taking his life, are not crimes if done with proper public authority.” This leads to strained comparisons—from the State Department issuing a visa to an ineligible person for the purposes of an undercover operation to a police officer speeding in pursuit of a criminal. None of us should be reassured our government’s grasping of that much power and applying it to lethal force.
You can read the full memo here.
While the memo raises many troubling questions, it at least gives us more details to pick apart and helps us ask the right questions as we push for accountability. The more light that shines on this issue, the more effective we can be in mobilizing against these actions and ending the killing of American citizens with impunity.