February 7, 2013
The Senate Armed Services Committee did not mention drones a single time during Senator Chuck Hagel’s confirmation hearings last week. That oversight, however, says a lot more about the politics surrounding the hearings than it does about the enduring salience of drone technology to U.S. national security policy. The Department of Justice’s “white paper” obtained by NBC on Monday affirms that.
The paper, drafted for some members of Congress and a less detailed analysis than the official, still unreleased, legal memo, provides the most robust legal analysis of the Obama administration’s targeted killing policy to date. Although it makes no mention of any particular target, the white paper is clearly responsive to Anwar Al-Awlaki, the U.S.-born Muslim cleric killed by a U.S. drone strike in Yemen in September 2011. The 16-paged document explores the lawfulness of killing of a U.S. citizen who is a senior operational leader of Al-Qaeda or an Associated force on foreign soil in an area outside of active hostilities, who poses an imminent threat, and whose capture is not feasible.
The memo is woefully insufficient as a legal analysis. Even its title, “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa’ida or an Associated Force,” makes assumptions that merit thorough examination. Who, for example, qualifies as a Senior Operational Leader? Al-Awlaki never commanded any attacks but was a propagandist who arguably inspired them. Is an associated force a group that shares Al Qaeda’s ideology or must it be a part of a central command structure? Al-Awlaki’s Yemen-based non-state group, Al Qaeda Arabian Peninsula (AQAP) was developed independently in the south of Yemen and has national goals distinct from the aims of the transnational Al Qaeda network.
The three-pronged test offered by the Justice Department to determine the legality of such a lethal strike is similarly rife with ambiguity. A killing is legal 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 laws of war principles.”
This iteration confuses the laws governing ongoing hostilities (see number 3) with those that regulate the right to use force (see numbers 1 & 2). Imminence is one element of the law of self defense and has no bearing upon the lawfulness of a target where there is an existing armed conflict. Instead, in ongoing hostilities, the legality of a target is a status-based assessment that distinguishes combatants from civilians. Unless he surrenders, a combatant can be killed regardless of activity. In contrast, a civilian retains his immunity unless he directly participates in hostilities, which is subject to a wholly distinct legal analysis. The point is this: if Al-Awlaki, or another target, is indeed a combatant in the U.S.’s ongoing hostilities authorized by the 2001 Authorization for the Use of Military Force (AUMF), an imminence analysis is not relevant at all.
Despite its irrelevance, the white paper discusses imminence at great length. Placing aside this seeming contradiction, and assuming that applicable legal regime is not in controversy, the administration’s definition of imminence is cause for concern.
Traditionally, imminence is a temporal requirement that justifies the use of force only where the threat is inevitable beyond a reasonable doubt and no other non-forceful means are available to avert it. The impending attack must be in irreversible motion. DOJ attorneys argue that modern day warfare, characterized by adversarial non-state actors coupled with access to devastating weaponry makes the traditional meaning of imminence inappropriate and anachronistic in dealing with threats posed by Al Qaeda and its associated forces. Therefore, there is no requirement to “have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”
The administration continues that because Al Qaeda is “continually planning attacks,” the relevant temporal element is not the threat posed by the would-be attacker, but rather, the most fortuitous window of opportunity available to the would-be victim to avert the theoretical attack. This flips the meaning of imminence on its head because the temporal element of self defense is no longer responsive to a real and inevitable threat — it corresponds to a would-be victim’s sensibility of the best moment to lethally incapacitate a looming threat. Accordingly, the Obama administration argues, traditional imminence should be supplanted by a probability test that considers the relevant window of opportunity, that has a high likelihood of success, and that sufficiently reduces the probability of future American civilian casualties.
This probability test, however, does not lend itself to a legal analysis let alone effective oversight. As suggested by its first prong, a high-ranking U.S. official determines the imminent nature of any particular threat. He does so, based on classified information that cannot be judicially reviewed because any “judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the president and his national security advisors as to when and how to use force against a member of an enemy force…” Even after the killing of Al- Awlaki, the Obama administration invoked the states secrets privilege to dismiss a suit seeking information about what made the U.S.-born cleric an imminent threat. The administration claimed that the case “cannot be litigated without risking or requiring the disclosure of classified and privileged intelligence information that must not be disclosed.”
This insistence on secrecy and executive deference is not new. In fact, the Obama administration’s redefinition of imminence, or “new imminence,” is a continuation of a policy solidified by the Bush administration. In its 2002 National Security Strategy, the Bush administration argued that while
Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat — most often a visible mobilization of armies, navies, and air forces preparing to attack.
We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction — weapons that can be easily concealed, delivered covertly, and used without warning.
Based on this concept of “new imminence,” the Bush administration attacked Iraq in 2003. Unlike its response to the Obama administration’s expansive targeted killing policy, the international community responded to the Iraq War with harsh censure for its abuse of the doctrine of self-defense.
Civilians and governments alike are ostensibly less wary of an administration that touts its respect for the rule of law thereby muting more fervent criticism. Nonetheless, it is noteworthy that the administration’s targeted killing policy is not limited to U.S. citizens abroad in cooperating states like Yemen and Pakistan. The Obama administration has killed scores of non-citizens in countries that have not approved the use of force by the U.S. in its territory. Thus, while new imminence seems contained by a liberal administration, it poses a risk to the use of force by states.
Consider this example. If new imminence comes to shape the law of self-defense between states and not simply against non-state actors, Iran can legitimately kill Israeli nuclear scientists. Although Iran cannot demonstrate an irreversible Israeli attack, it can show a high probability of a future, though uncertain attack. It can demonstrate that there exists a very likely probability that Israel will strike it, based upon Israel’s history of military attacks (i.e., 1982 attack on Iraq’s Osirak nuclear reactor) together with its intent to strike Iran today (i.e., official Israeli statements), and a capacity to do so (i.e., Although much of its nuclear program remains shrouded in secrecy, experts have estimated Israel has nearly 400 nuclear devices, delivery systems with a range that reaches far beyond Iran. In late 2011, Israel test-fired a Jericho missile capable of reaching Iran. Based upon the U.S.’s redefinition of imminence, Iran can legitimately launch a strike against Israeli nuclear scientists.
An Iranian targeted killing of Israeli scientists deemed critical for a nuclear attack against Iran would be destabilizing not just for Israel, and a conflict-ridden Middle East, but for the entire world. At worst, it has the potential to draw several other state actors into a devastating armed conflict. Absent some form of oversight and continued international regulation of state force, this harrowing possibility can become a real challenge.
We do not have access to the Obama administration’s complete legal memo but we have enough in this leaked white paper to know that it does not bode well for global order and stability. New imminence as defined and exercised by the U.S. is palatable in one instance, namely if we accept that some states, like the U.S., have greater moral authority qualifying them to police the world. In that case, we should forego the law of self-defense and trust that “good” states will use force responsibly.
I, for one, am not that trusting.