The U.S. Department of Justice “White Paper” on the Targeted Killing of U.S. Citizens:

Analyses & Comments

(Assembled by Patrick S. O’Donnell—February 9, 2013)

“The DoJ White Paper’s Fatal International Law Flaw — Organization”

By Kevin Jon Heller at Opinio Juris (February 5, 2013)

There is much to say about the DoJ White Paper on the targeted killing of US citizens, which reflects the US’s idiosyncratic interpretation of international law. In this post I want to focus on the White Paper’s primary — and in my view fatal — flaw: its complete failure to address the relationship between the organized armed groups that it considers to be engaged in a single non-international armed conflict (NIAC) with the US.

The White Paper begins with the standard premise that “[t]he United States is in an armed conflict with al-Qa’ida and its associated forces” (p. 2). It then claims that the armed conflict in question is a global NIAC that extends to any member of “al-Qai’da and its associated forces” anywhere in the world (p. 3; citations omitted; emphasis mine):

[T]he United States retains its authority to use force against al-Qa’ida and associated forces outside the area of hostilities that targets a senior operational leader of the enemy forces who is actively engaged in planning operations to kill Americans. The United States is currently in a non-international armed conflict with al-Qa’ida and its associated forces. Any U.S. operation would be part of this non-international armed conflict, even if it were to take place away from the zone of active hostilities.

After making that claim, the White Paper does something interesting: it explicitly addresses the argument that the existence of a NIAC between the US and al-Qaida must be determined according to the test established by the ICTY in Tadic — the test adopted by the ICRC, by the ICC, and by nearly all international law scholars. Here is what it says (pp. 3-4; some citations omitted):

Claiming that for purposes of international law, an armed conflict generally exists only when there is “protracted armed violence between governmental authorities and organized armed groups,” Prosecutor v. Tadic, Case No. IT-94-1AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 70 (Int’l Crim. Trib. for the Former Yugoslavia, App.

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Chamber Oct 2. 1995), some commenters have suggested that the conflict between the United States and al-Qa’ida cannot lawfully extend to nations outside Afghanistan in which the level of hostilities is less intense or prolonged than in Afghanistan itself. See, e.g., Mary Ellen O’Connell, Combatants and the Combat Zone, 43 U. Rich. L. Rev. 845, 857-59 (2009). There is little judicial or other authoritative precedent that speaks directly to the question of the geographic scope of a non-international armed conflict in which one of the parties is a transnational, non-state actor and where the principal theater of operations is not within the territory of the nation that is a party to the conflict. Thus, in considering this potential issue, the Department looks to principles and statements from analogous contexts.

The Department has not found any authority for the proposition that when one of the parties to an armed conflict plans and executes operations from a base in a new nation, an operation to engage the enemy in that location cannot be part of the original armed conflict, and thus subject to the laws of war governing that conflict, unless the hostilities become sufficiently intense and protracted in the new location. That does not appear to be the rule of the historical practice, for instance, even in a traditional international conflict. Particularly in a non-international armed conflict, where terrorist organizations may move their base of operations from one country to another, the determination of whether a particular operation would be part of an ongoing armed conflict would require consideration of the particular facts and circumstances in each case, including the fact that transnational non-state organizations such as al-Qaida may have no single site serving as their base of operations.

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 that the Supreme Court recognized in Hamdan.

In one important respect, this analysis is absolutely correct: as long as the US is engaged in a NIAC with an al-Qa’ida group in a particular location — because the organization of the group and the intensity of the hostilities there satisfy Tadic – any member of that al-Qa’ida group can be targeted anywhere in the world. In such a situation, contrary to what scholars like O’Connell argue, there is no need to find Tadic-level hostilities in the location where the member of that al-Qa’ida is located. The laws of war, in this regard, are indeed completely aspatial.

But here we come to the White Paper’s fatal flaw. Notice that it completely ignores one of the two constitutive elements of the Tadic test: the organization requirement. The White Paper simply assumes that “al-Qa’ida and its associated

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forces” constitute a single organized armed group for purposes of IHL — “a transnational, non-state actor” that is “one of the parties” involved in “the non-international armed conflict between the United States and al-Qa’ida that the Supreme Court recognized in Hamdan” (emphasis mine). Indeed, the White Paper must make that assumption because, by its own admission, what justifies targeting a “senior operational leader” away from an active battlefield is precisely that, as a member of “al-Qa’ida or an associated force,” he takes part in that NIAC.

The assumption that “al-Qa’ida and its associated forces” constitute a single organized armed group for purposes of IHL, however, is deeply problematic. Here is a snippet of my essay on signature strikes (citations omitted):

For various groups that call themselves AQ or associate themselves with AQ to qualify as a single party, they must – at a minimum – share a common command structure. That requirement has been accepted by the ICTY, by the ICRC, and by scholars – and it means that different terrorist groups cannot be considered one organization simply because they share the same ideology.

There is little evidence, however, that the various terrorist groups that call themselves AQ or associate themselves with AQ possess the kind of integrated command structure that would justify considering them a single party involved in a global NIAC with the U.S. According to Kenneth Anderson, “Islamist terror appears to be fragmenting into loose networks of shared ideology and aspiration rather than vertical organizations linked by command central.” Similarly, Bruce Hoffman insists that, since 9/11, AQ “has become more an idea or a concept than an organization; an amorphous movement tenuously held together by a loosely networked transnational constituency rather than a monolithic, international terrorist organization with either a defined or identifiable command and control apparatus.” Indeed, even the U.S. government rejects the idea that AQ is a unified organization, dividing AQ into three separate tiers: (1) core AQ; (2) “small groups who have some ties to an established terrorist organization, but are largely self-directed”; and (3) “homegrown extremists’ who ‘have no formal affiliation with al Qaeda, but… are inspired by its message of violence.”

The actual organization of “al-Qa’ida and its associated forces” fatally undermines the White Paper. If those terrorist groups do not form a single organized armed group, there can be no single NIAC between the US and “al-Qa’ida and its associated forces.” And if there is no single NIAC between the United States and “al-Qa’ida and its associated forces,” the US cannot — by its own standards — justify targeting anyone who is a “senior operational commander” in one of those groups simply by citing the existence of the hostilities between the US and al-Qai’da in Afghanistan. On the contrary, in order to lawfully target a “senior operational commander” in a terrorist group that does not qualify as part of al-Qaida in Afghanistan, the US would, in fact, have to show (under Tadic) that there is a separate NIAC between the US and that group where that group is located.

It is possible, of course, that the US could make the requisite showing. But the White Paper never even considers the issue, because of its flawed understanding of

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the Tadic test. As a result, the White Paper authorizes the use of lethal force against individuals whose targeting is, without more, prohibited by international law.

“The DoJ White Paper’s Confused Approach to Imminence (and Capture)”

By Kevin Jon Heller at Opinio Juris (February 5, 2013)

According to the White Paper (p. 6), a US citizen “who is located outside the United States and is an operational leader continually planning attacks against US persons or interests” cannot lawfully be killed unless, inter alia, “an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of attack against the United States.” Early criticism of the White Paper has focused on how it defines imminence. The ACLU’s Jameel Jaffer, for example, says that it “redefines the word imminence in a way that deprives the word of its ordinary meaning.” That’s actually something of an understatement; as I’ll discuss in this post, the White Paper’s entire approach to the concept of imminence is deeply confused — and deeply problematic from the standpoint of international law.

The first thing to note is that it’s not clear why the White Paper even discusses imminence. As I noted in my previous post, the White Paper’s central premise is that all targeted killings of “senior operational leaders” in “al-Qa’ida or its associated forces” take place in the context of a global non-international armed conflict (NIAC) and are thus all subject to the laws of war (IHL). The White Paper also takes the position that the laws of war apply to a U.S. citizen in the same way that they apply to a non-citizen; it specifically argues (p. 3) that because “the military may constitutionally use force against a US citizen who is part of enemy forces,” the DoJ “does not believe that US citizenship would immunize a senior operational leader of al-Qa’ida or its associated forces from a use of force abroad.”

Although I reject the White Paper’s claim that the US is engaged in a global NIAC with “al-Qa’ida and its associated forces,” I have no problem with the idea that US citizenship does not affect the targetability of an individual who is otherwise a legitimate target under IHL. But why, then, discuss imminence at all? It is black-letter IHL that a legitimate target can be targeted at any time; it is not necessary to show that the target is an imminent threat, regardless of how imminence is defined. Given that the White Paper assumes both that all targeted killings of US citizens take place in armed conflict and that US citizenship does not affect targetability under IHL, it should consider whether a US citizen poses “an imminent threat of attack against the United States” — or against anything else — to be completely irrelevant.

So why does the White Paper graft an imminence requirement onto IHL? There are two possible explanations. The cynical one is simply politics. The DoJ doesn’t really

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believe imminence is required before a US citizen who is a member of al-Qa’ida or an associated force can be lawfully targeted, but it is worried that the American public would reject the idea that an “enemy” US citizen can be killed abroad at any time. So it has decided to endorse an imminence requirement that — as discussed below — provides no meaningful constraints on the use of lethal force against a US citizen. A cynical move, to be sure. But a smart one.

The more generous explanation is that the DoJ believes that imminence is required by IHL’s presumption of civilian status. Article 57(2) of the First Additional Protocol provides that “[t]hose who plan or decide upon an attack shall… [d]o everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects,” while Article 50(1) provides that if it is still unclear whether an individual is a legitimate target after all feasible precautions are taken, “that person shall be considered to be a civilian” who is immune from attack. IHL is notoriously vague concerning the precise quantum of evidence necessary to determine that an individual is a member of an organized armed group, so perhaps the DoJ believes that a showing of imminence is the minimum necessary to establish that a target is a member of al-Qa’ida or an associated force — at least, or perhaps especially, when the target is a US citizen.

That explanation has a nice ring to it, but it is difficult to accept. To begin with, it would still contradict the White Paper’s claim that US citizenship is irrelevant to the application of IHL. Nothing in IHL suggests that the standard of proof for membership in an organized armed group differs for citizens and non-citizens; indeed, such a citizen/non-citizen distinction would contradict IHL’s basic targeting premise, which is that the only relevant distinction is between civilians and non-civilians.

The generous explanation of the imminence requirement also suffers from a more important flaw: it is completely inconsistent with the White Paper’s insistence (p. 6) that a US citizen can be targeted only when “a capture operation would infeasible.” First, the capture requirement does not help establish whether a US citizen is, in fact, a member of al-Qa’ida or an associated force. Second, the capture requirement has no basis in IHL: as Article 41(2)(b) of AP I makes clear, unless a lawful target “clearly expresses an intention to surrender” — such as by yelling surrender or by raising his hands or a white flag — IHL imposes no capture obligation whatsoever on an attacker. That is an unforgiving rule, permitting the use of lethal force against a target who is unarmed, defenseless, running away, or even asleep. But it is a rule nonetheless.

We are left, then, with the cynical explanation. The imminence requirement and the capture requirement both come from international human rights law (IHRL), not from IHL. The US, however, categorically rejects the idea that IHRL applies to any of its targeted killings; as noted above, it considers itself to be in a global NIAC with al-Qa’ida and its associated forces. There is thus no non-political (i.e., legal) reason for

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the US to condition the use of lethal force against a US citizen on the threat of an imminent attack and the impossibility of capture. The imminence requirement is all for show.

Finally, given that many scholars (including me) reject the US position that none of its targeted killings are subject to IHRL, it is worth noting that the US definition of imminence is significantly broader than the IHRL definition. I discuss that issue at length in my essay on signature strikes; see pp. 29-31. I will simply note here that at least one aspect of the US definition is clearly unacceptable from an IHRL perspective — namely, its acceptance of the idea that a “senior operational leader” in al-Qa’ida or an associated force can be considered an imminent threat even when there is no evidence that he is planning future attacks against the US. Here is what the White Paper says (p. 8):

[W]here the al-Qa’ida member in question has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qa’ida’s continuing terrorist campaign against the United States would support the conclusion that the member poses an imminent threat.

Even granting — as most scholars do — that IHRL’s imminence requirement is far from the picture of clarity, this standard is woefully overbroad. It not only relieves the US of the need to possess evidence that the “senior operational leader” in question intends to continue to attack the US, it actually shifts the burden of proof onto that individual to show that he is no longer a threat. (How he would actually do that is never addressed in the White Paper. Take an ad out in the New York Times?) That is simply unacceptable from an IHRL perspective; as the Human Rights Committee has specifically noted, states must “not use ‘targeted killings’ as a deterrent or punishment.”

“White Paper”

By Deborah Pearlstein at Opinio Juris (February 5, 2013)

I set out to begin to untangle the strings of argument in the DOJ white paper, and find myself, after three pages of writing notes myself, having untangled only as far as the paper’s page 5 (of 16). There is something wrong with a memo like this. Let me see if I can explain why.

The white paper says that it intends to set forth “a legal framework for considering” when the U.S. government can “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 if al-Qa’ida – that is, an al-Qa’ida leader actively

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engaged in planning operations to kill Americans.” While the paper disclaims any intention of establishing the “minimum requirements necessary” to make such a killing lawful, I take it to be an explanation for how such an operation is both authorized by domestic law, and in compliance with the various provisions of domestic and international law that regulate the use of force. It is the closest thing we have seen – and perhaps the closest thing that exists – to a detailed argument for why such a practice is legal.

So let’s start where the paper starts, more or less, with the domestic source of authority on which the administration relies for the use of lethal force it describes. The paper points to two sources of domestic law and suggests the operation is authorized either by the Constitution itself or the statutory Authorization for Use of Military Force (AUMF). So which one is it in the highly specific context here – statute or Constitution? The paper never commits. But which one it is matters enormously. It is, in a sense, what matters most. Pull out the argument threads. What law does the paper mean to reference by invoking as a source of authority the “President’s constitutional responsibility to protect the nation” (pp. 1, 2)? I infer from this description the authors mean to reference the President’s power under Article II, though I could find no citation to that provision. In particular I imagine this is some reference to the President’s power to, as the framers put it, “repel sudden attacks.” In such limited form – i.e. as a defensive use of force – it is a principle that has been recognized in various ways back to the Civil War era Prize Cases (though I find no citation to those authorities either). Does the paper contemplate that this Article II power alone – without further congressional authorization – would be sufficient as a matter of domestic law to authorize the use of lethal force against any senior operational leader of al-Qa’ida or an associated force actively engaged in planning operations to kill Americans? If the Article II power so conceived includes lethal force in those circumstances, mustn’t it also include the authority to employ lesser forms of force, like detention, against those figures, without further congressional authorization? Given the Administration’s insistent reliance on statutory, and not purely constitutional, authority to support the legality of ongoing detention of folks like KSM, it is hard to imagine the paper here is really intended as a full throated embrace of that claim.

So maybe the paper means to limit the scope of the “President’s constitutional responsibility to protect the nation” in some other way. Indeed, having invoked this constitutional power, in whatever passing way, the paper immediately also invokes UN Charter, art. 51 – the key international law provision governing the use of force in self-defense. (“[T]he President’s use of force against al Qaeda and associated forces is lawful under other principles of U.S. and international law, including the President’s constitutional responsibility to protect the nation and the inherent right to national self-defense recognized in international law.”) (p.2) So perhaps the idea is that whatever Article II power the President has under the Constitution, it extends only so far as (or is co-extensive with) a state’s ability to use force in self-defense

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under international law. Ok, so Article 51 (which the paper does not quote) says: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” Is the argument, then, that the relevant armed attack against the United States occurred on September 11, 2001, and that a response now would still be timely? Or is the argument that there is some subsequent action by Al Qaeda against the United States that rises to the level of an “armed attack” that the Administration is counting? Or is the argument, rather, that it doesn’t matter whether an armed attack has occurred recently and that the targeting in this context is an exercise in anticipatory self-defense – that is, whatever “inherent right” of anticipatory self-defense survived the UN Charter as a part of customary international law? I could imagine an argument here, too – one that might begin, as international law casebooks do, with the Caroline’s statement requiring that “the necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” One could then argue that customary international law has evolved from the Caroline standard, and that there is evidence of an emerging CIL rule requiring a more refined test of imminence. But the paper doesn’t cite the Caroline. It makes no argument about customary international law. And it is only as part of the paper’s constitutional due process analysis that it engages “concepts of ‘imminence,’ feasibility of capture, and compliance with applicable law of war principles” (citing a law review article from 1992, one from 2000, and a single statement of the former UK Attorney General contending that “it must be right” that states can act in self-defense against terrorist groups without knowing exactly where or how the group will attack next). In short, it is difficult to extract a discernible argument in the paper about the current meaning of self-defense under international law.

Maybe then the mention of the “President’s constitutional responsibility to protect the nation” (on p. 1 and again on p. 2) is really meant more for rhetorical (or protective) effect. After all, the first source of domestic authority the paper really engages is the statutory AUMF – and on its face this seems like a far better course. The statute gives the President the authority to use all “necessary and appropriate force” against Al Qaeda. If the U.S. citizen in the paper’s scenario is indeed a member of Al Qaeda, then isn’t that simply the end of the analysis in terms of domestic authority? The problem, of course, is that both the Supreme Court, and the Administration, and now Congress have recognized that the scope and meaning of the AUMF must be understood as informed by the law of war (or call it IHL or call it LOAC). So the paper would have to argue that the targeting of the U.S. citizen in this scenario is consistent with that law.

How would this argument go? First, the paper would have to take the position that the United States and Al Qaeda are in a non-international armed conflict (NIAC) – that is, that the United States and Al Qaeda are parties to a conflict recognized as

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triggering the law of armed conflict under international law. The paper says as much (p. 3), but that of course is a challenging argument, one not embraced as far as I can tell by most non-U.S. states. Hamdan, which the paper cites, need be read as going only so far as to recognize that there was a NIAC in Afghanistan at the time Hamdan was captured. Historically (i.e. in the 1970’s), NIACs were contemplated to be mostly internal (i.e. civil) wars. But even more modern understandings of what a NIAC might be require findings of a level of organization in the non-state party and an ongoing intensity of conflict between the state and the non-state party that it is far from clear the conflict between the United States and Al Qaeda now meets (though of course the white paper leaked to the press is undated). The paper does not engage this debate.

Second, the paper would also have to evaluate whether the targeting of the U.S. citizen in this scenario was consistent with LOAC targeting rules, rules that say civilians are not targetable “unless and for such time as they take a direct part in hostilities.” (E.g. AP II, art. 13.) The paper could argue that this rule is now outmoded, that even the ICRC contemplates targeting individuals who play a “continuous combat function.” Is it the ICRC’s CCF standard the paper means to incorporate, which standard would allow, for example, targeting those individuals “whose continuous function involves the preparation, execution or command of acts or operations amounting to direct participation in hostilities,” but not the targeting of “recruiters, trainers, financiers and propagandists” whose efforts fall outside the DPH zone? Maybe. But I don’t really know. The paper doesn’t mention either DPH or CCF or the ICRC’s interpretive guidance. The closest it comes to engaging the who-can-be-targeted-in-LOAC discussion is its citation to a set of sources all but one of which are from the law of international armed conflict – not at issue here – which stand for the proposition that all members of armed forces are targetable at any time (in which case what difference does it make whether the target is a senior operational leader or not?).

And this is all before one gets to the question of, for example, whether or not the process the United States follows in selecting U.S. citizen targets satisfies the requirements of due process under the Fifth Amendment of the U.S. Constitution (see paper, p. 6 requiring an “informed” (how informed?), “high-level” (how high?) official to “determine” (how? on what kind of information?) that there is an imminent threat of violent attack against the United States, that capture is “infeasible” (?), and that the operation would be conducted “consistent with applicable law of war principles” (but see supra)). There are scores of Supreme Court due process cases beyond the two relevant cases cited here that elaborate on the meaning of what process is due in various contexts. Cases that engage questions like standards of proof, burdens of persuasion, neutrality of decision-makers, and the possibility of, if not pre-deprivation, some form of post-deprivation adjudicative review. If we are going to weigh burdens and benefits, surely it is worth at least considering those, too.

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As a “framework for considering” some of the applicable laws here, the paper is a step ahead of where we were before it was leaked. As a legal argument for why this kind of operation is lawful, there is substantially more work to be done.

“Thoughts on the White Paper”

By Jens David Ohlin at The Lieber Code (February 6, 2013)

Adding to the already substantial corpus of public reaction to the recently released DOJ White Paper on Targeted Killing of US citizens, here are my reactions:

First, several news outlets are erroneously describing the white paper as being the Office of Legal Counsel memorandum drafted by David Barron and Marty Lederman at the Department of Justice. As the New York Times explains, the document probably isn’t. Rather, it is more likely a summary document, based on the Barron and Lederman memorandum, that was prepared by the Justice Department for dissemination to various members of Congress and their staff who were briefed by Executive Branch officials. This account rings true to me, because I don’t believe that anyone in the Justice Department would have leaked the original memorandum. If they were willing to leak the original memorandum, it would have been leaked before.

Why was it leaked? And why wasn’t it disclosed earlier? These are complicated questions. Some conspiracy theorists think the White Paper was leaked now to add fuel against CIA Director-nominee John Brennan at his confirmation hearings. This sounds like a plausible rationale although I have no idea if it is true. The more complicated question is why the Office of Legal Counsel never released either the White Paper or the underlying memorandum before. It is not classified, and the document was clearly relevant for several past litigations that were filed against the Administration. Is the document protected by attorney-client privilege? In January, U.S. District Court Judge Colleen McMahon held that the attorney-client and deliberative process privileges protected the document from release. However, that didn’t stop McMahan from discussing at great length—in dicta—the potential illegalities of the Administration’s Targeted Killings program. Indeed, it was a rare instance of a federal judge making broad pronouncements about the law that had no direct bearing on the legal outcome of the case at bar.

As for the substance of the DOJ White Paper, several observations come to mind:

First, the White Paper appears to hedge on whether the Administration can rely on the fact that there is an armed conflict with al-Qaeda—and that this armed conflict justifies the killing of members of the terrorist network. Simply put, if you accept this rationale, which has been announced before by Harold Koh while he was at the State Department, then much of the analysis in the White Paper appears

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unnecessary. For example, the paper discusses the duty to capture at great length and concludes that targeted killings against US civilians are only acceptable if capture is not feasible. But as I explain in my forthcoming article “The Duty to Capture,” no such requirement exists in the Laws of War. So where is it coming from? Maybe from the Fourth Amendment of the U.S. Constitution, I suppose, although no court has ever applied Fourth Amendment principles to targeting during an armed conflict. Indeed, the White Paper engages in a Fourth Amendment balancing analysis, citing the famous Mathews v. Eldridge, 424 U.S. 319 (1976), but the Supreme Court has never applied the Mathews balancing test to targeting decisions during armed conflict. The closest analogue is Hamdi, 542 U.S. 507 (2004), but that was a detention case—not a targeting case.

Second, the White Paper concedes that imminence is required for these strikes to be lawful. There has been much discussion online and in the newspapers about the white paper’s interpretation of the imminence requirement, though less attention has been paid to the source of the imminence requirement, which isn’t clear. Does it stem from jus ad bellum, i.e. the public international law requirement that self-defense under the U.N. Charter requires the existence of an imminent attack? Perhaps so (and the White Paper does indeed cite Article 51 of the Charter), but during the course of an armed conflict that is itself justified under article 51, does every strike need to be justified by imminence? Arguably not, since during an armed conflict an attacking force may strike an opponent’s military force even if that force is not posing an imminent threat. That’s the whole point of classifying a situation as an armed conflict. The conflict as a whole must be justified by article 51, but must every sortie flown by an airplane satisfy the imminence requirement? Presumably not.

Perhaps the imminence requirement comes from international human rights law. That’s another possibility, although the official US position is that the US is not bound extra-territorially by its international human rights commitments such as the International Covenant on Civil and Political Rights. In other words, according to official US positions, these treaties only apply to government conduct within the country. So it is unlikely that the U.S. government would argue that imminence is a necessary requirement of human rights law in this context.

Third, the longest section of the White Paper deals with whether the federal statute prohibiting murder incorporates the “public authority justification”—a legal defense that would transform the killing from an unlawful killing to a lawful one because it was performed pursuant to an action by a government official. Although the White Paper correctly cites the Model Penal Code as including wartime killings within the definition of the public authority defense, I think the Model Penal Code is wrong on this point. So although the White Paper’s framing of this point is understandable, I would have framed the issue differently.

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The correct solution is to instead recognize that under bedrock principles of the laws of war, which are incorporated into federal common law, killing with the privilege of combatancy is not an unlawful killing at all. This has nothing to do with any “public authority justification.” Indeed, no legal defense is required for wartime killings against legitimate targets. Rather, such killings are based on the privilege of combatancy which exists only during times of armed conflict, and the fact that under the laws of war, killing an enemy combatant is not a crime. So again this goes back to whether the Administration really takes seriously that this is indeed an armed conflict with al-Qaeda. If it does, then the international laws of war preempt the domestic criminal laws that define murder. And that fact, and that fact alone, explains why the federal law prohibition against murder does not apply to targeted killings.

Of course, this then requires an exhaustive analysis of whether Aulaqi was a combatant or not. The only way to make this argument is to invoke the contemporary notion of exercising a “continuous combat function” (CCF) in an organized armed group. This notion was first laid out by the International Committee of the Red Cross in its “Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law.” Strangely, though the White Paper cites this document, it neither mentions nor critically analyzes the CCF standard.

“Drone Strike Out: The Obama administration’s drone strike memo is unconstitutional”

By Jeffrey Rosen at The New Republic (February 6, 2013)

The Justice Department white paper released on Monday by NBC News is the public’s first direct glimpse at the legal reasoning that the Obama administration relied on in using a drone strike to kill Anwar al-Awlaki, a U.S. citizen living in Yemen. The memo’s arguments are troubling on many levels. Although the Obama administration's brief is directed at the assassination of Americans abroad, the arguments it offers could apply with equal force to the assassination of Americans at home; lawyers for the Bush administration who tried to justify lesser outrages have been pilloried for supporting torture. But perhaps most troubling is the administration’s attempt to redefine the idea of the kind of “imminent threat” that can justify a targeted assassination.

The U.S. Supreme Court has previously held that the police can only use deadly force against fleeing, dangerous suspects when killing the suspect is “necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” But, in a vast expansion of this narrow precedent, the Obama administration says that the U.S. is not required “to have clear evidence that a specific attack on U.S.

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persons and interests will take place in the immediate future” in order to assassinate U.S. citizens whom the government believes are Al-Qaeda leaders. Instead, the memo argues a “decision maker determining whether an al-Qaeda operational leader presents an imminent threat of violent attack against the United States must take into account that certain members of al-Qaeda …. are continually plotting attacks against the United States; that Al-Qaeda 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-Qaeda plots as they are developing and thus cannot be confident that none is about to occur.”

In light of the government’s possible ignorance of plots that may or may not exist, the memo concludes, when an al-Qaeda leader “has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qaida’s continuing terrorist campaign against the United States would support the conclusion that the member poses an imminent threat.”

This is an extraordinary conclusion. In Fourth Amendment cases, the Supreme Court has stressed that “the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.” In reaching this conclusion, the Court rejected the eighteenth century rule allowing the use of whatever force is necessary to arrest a fleeing felon because “changes in the legal and technological context”—namely, the expansion of felonies to include non-violent offenses and new weapons technology (in particular, automatic guns) that make it possible for the police to kill suspects whom they previously would have had to physically subdue.

The Obama administration takes this narrow precedent and twists it beyond recognition. While the Supreme Court cited the existence of new weapons technology as a reason for narrowing the conditions under which the police can use deadly force, the Obama administration uses drone technology as an excuse for broadening those conditions. “What would constitute a reasonable use of lethal force for purposes of domestic law enforcement differs substantially from what would be reasonable in [this] situation,” the administration concludes. (In fact, the possibility of tracking suspected terrorists with drones, rather than killing them, suggests that targeted assassinations are even more constitutionally vulnerable today than they would have been at the time of the American framing.)

When officials conclude that “capture is infeasible,” the memo continues, “the intrusion of any Fourth Amendment interests would be outweighed by …. the interest in protecting the lives of Americans.” But of course, the question of whether

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American lives are, in fact, imminently threatened by a particular suspect is precisely the determination that the administration claims the right to make on its own—without an opportunity for an independent judge to examine the factual basis for the claim. “There exists no appropriate judicial forum to evaluate these constitutional considerations,” the Justice Department insists.

This “trust us” argument is precisely the one the Supreme Court rejected in the 2004 Hamdi, where the Court upheld the Bush administration’s power to detain enemy combatants, on the grounds that it had been authorized by Congress, but only after insisting that suspects could challenge the factual basis for their detention before a neutral decision maker. The Obama administration repeatedly invokes the Hamdi case to justify targeted assassinations, which have been specifically prohibited by Congress, and then omits the Supreme Court’s requirement that independent judges need to have the last word on whether or not suspects are, in fact, as dangerous as the administration claims.

The principle that core constitutional rights can’t be abridged unless there’s an imminent threat of violence isn’t only central to the Supreme Court’s understanding of the Fourth Amendment. It’s also the keystone of the Court’s understanding of the First Amendment protections for free speech. In his concurring opinion in Whitney v. California, the greatest opinion on free speech in American history, Justice Louis Brandeis objected to a law that made it a crime for a member of the Communist Labor Party of California to teach syndicalism, an anarchic alternative to capitalism.

Brandeis objected that “the accused is to be punished not for contempt, incitement, or conspiracy, but for a step in preparation, which, if it threatens the public order at all, does so only remotely.” Brandeis insisted that speech could only be banned if it “would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the State constitutionally may seek to prevent.” He added that there must be “reasonable grounds to believe” that the danger is imminent and serious. And, in a reminder of his faith in public deliberation, he said the danger had to be “so imminent” that it was likely to occur “before there is opportunity for full discussion …. Only an emergency can justify repression.” Finally, like the Supreme Court in Hamdi, Brandeis insisted on the importance of neutral, judicial review. “It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.” Brandeis’s reasoning was adopted by the Supreme Court in a 1969 decision holding that speech can never be suppressed unless there is a serious threat of imminent violence; the Obama administration, ignoring this precedent, wants to justify not only suppressing speech but also assassinating citizens without specific and credible evidence of imminent violence.

There are other reasons to object to the administration’s justification of targeted assassinations—including its questionable claim that they are legally supported by Congress’s authorization of the use of force after 9/11. On pragmatic grounds, the

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administration's brief is a disaster: As the Church Commission found after studying the attempted assassinations of Castro, targeted killings are likely to produce an international backlash that threatens far more American lives than they protect. But, as a legal matter, the casual, and unpersuasive, attempt to read out of American constitutional law the principle that government can only kill citizens in order to prevent imminent death or violence in return is the most objectionable of all.

“Here We Go Again - The Obama Administration and Bad Legal Advice”

Brad Wendel at the Legal Ethics Forum (February 6, 2013)

I have been absent for a long time from this blog, but the release of a DOJ White Paper on targeted assassination, including the killing of U.S. citizens, noted yesterday by John, brought me out of hiatus. (The disclosure is believed to have been timed to support the confirmation of John Brennan to the post of CIA director.) I have been following this issue through articles in the New York Times and commentary by bloggers including Conor Friedersdorf and Glenn Greenwald, and have been slowly developing a sinking feeling that the Justice Department lawyers in the Obama administration have been playing fast and loose with the law, just as lawyers in the Bush DOJ did, in order to provide advice that the drone campaign in Pakistan, Yemen, and elsewhere is lawful. Since I was a harsh critic of John Yoo and Jay Bybee in the Bush Office of Legal Counsel, considerations of fairness and impartiality seem to require me to take a public position on the conduct of the lawyers in the Obama administration.

As always, complicating the ethical analysis is the scope and complexity of law bearing on the President’s actions. The White Paper ranges over international law; international humanitarian law (IHL) or the law of warfare (see, e.g., the discussion of the Tadic case establishing standards for the existence of a non-international armed conflict, discussed by Kevin Jon Heller and see a recent paper by my colleague Jens Ohlin on the requirement to capture the target of the strike if feasible); separation of powers; constitutional criminal procedure; and domestic criminal law (including the public authority justification for killing). As a matter of legal ethics, my position has always been that a lawyer providing legal advice regarding prospective conduct, as distinct from a lawyer defending a client in litigation regarding past conduct, is obligated to interpret the governing law in good faith and advise her client, including the President, according to the lawyer’s reasonable (i.e. an objective standard) view of what the law requires. In many cases this may be different from a position a lawyer could take in litigation, consistent with Rule 3.1 and Fed. R. Civ. P. 11. Thus, the ethical analysis of the lawyer’s conduct in preparing the memo and the underlying OLC opinion would depend on

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whether the advice in the memo is an objectively reasonable interpretation of the governing law.

Apart from that, however, there is a jurisprudential issue lurking in the White Paper that troubles me quite a bit. As commentators have already pointed out, the “who decides?” question may be more important than the substantive legal standard set out in the analysis. On p. 6 the White Paper states that it would be lawful to kill a U.S. citizen located outside the U.S. and “an operational leader continually planning attacks against U.S. persons and interests” where, inter alia, “an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack” (emphasis added). We can—and should—argue round and round about the imminence requirement, what it means to be involved in planning attacks, whether there is a non-international armed conflict in Yemen, etc., but these issues are separate from the institutional question of who gets to make the judgment call. Glenn Greenwald argues that the White Paper equates guilt with an accusation, but let’s assume the high-level official genuinely attempts to ascertain whether the target of the strike is guilty. There are still problems with this:

1. All decision-makers are subject to blind spots, the effects of biases and heuristics, and other predictable patterns of erroneous decision-making. Groups have problems, too, including pluralistic ignorance and “groupthink,” so the problem may not be solved merely by having a committee of high-level officials make the call. As lawyers, one of the commitments of our profession is to the value of procedures, due process, checks and balances, transparency, and accountability.

2. The moral value of the rule of law is related to the disvalue of unchecked individual, discretionary decision-making. There are better and worse ways of making decisions as a normative matter, apart from the empirical considerations in #1. As David Luban has argued, the rule of law manifests an attitude of respect by the governors toward the governed. A regime of unchecked discretion—as the White Paper appears to endorse here—is antithetical to the values served by the rule of law, which are primarily the equality and dignity of citizens. It sounds bizarre to say that the problem with drone strikes is that Anwar al-Awlaki and his son should had an opportunity to vote before they were killed, but Awlaki is really just a stand-in for any of us. Don’t we think this kind of awesome power should be held closely in check? If we do, what is the reason? The Luban version of the rule-of-law argument is that the government must respect our human dignity by allowing citizens to participate in government decision-making about such important interests.

3. The discussion of legal authority in the White Paper is less cavalier than in the Bush administration torture memos, but notice a gap: There is no authority cited for the proposition that decisions related to the killing of U.S. citizens may be made by a high-level government official, without any other process. The White Paper cites

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the Hamdi opinion (and Mathews v. Eldridge) on the process that is due before a citizen is deprived of life, but the only citation on the “who decides?” question is to dicta in Hamdi concerning the Court’s traditional deference to military authorities (see p. 7). The permissibility of a high-level official making this decision seems to have been slipped into the legal analysis without adequate legal support.

I’m not really an expert on IHL and the law of war, and I look forward to a robust debate among those scholars. What I do know, however, is that secret decision-making processes are contrary to the values to which lawyers are dedicated. Maybe I’m insufficiently hard-nosed or realistic, and maybe some dodgy covert operations are a necessary aspect of self-defense. I’m not sure, however, that it is possible to square the circle and have lawful covert activities where the imprimatur of lawfulness is necessarily granted by individuals acting in secret.

“A Few Brief Thoughts on the Department of Justice White Paper”

Marko Milanovic at EJIL: Talk! (February 7, 2013)

The recently leaked US Department of Justice White Paper on targeted killings has now been thoroughly dissected in the blogosphere (see, in particular, Kevin Heller’s and Deborah Perlstein’s comments on Opinio Juris here, here, and here, as well as Steve Vladeck’s take on Lawfare). I have little to add to this – in part because, as Ben Wittes and Susan Hennessay point out, there is actually fairly little new in this memo when you compare it to the various speeches on drones given by Obama administration officials. The substantive arguments or positions are essentially the same.

Where the White Paper is different, however, is in its format and size. It is not the ‘real’ legal memorandum prepared by the Office of Legal Council in the DoJ, which it allegedly summarizes to an extent, but neither is it a mere speech. It is written in legalese, it has footnotes and citations, it has the form of a legal document even if perhaps not all of its trappings. I must say that I really do not understand the administration’s reluctance to release the OLC memo itself, with redactions for any classified materials, and the need to produce this kind of quasi-summary. Nobody’s really happy with that (I won’t even get into a rather unflattering comparison with the policies of the Bush administration on similar matters), and there doesn’t seem to be any real benefit to such a strategy of creeping disclosure (indeed, leakage). The administration has now announced that it will disclose the memo to Congressional intelligence committees, but whether a redacted version will be made public is yet to be clear.

The White Paper is thus what we’ve got so far. And if we judge it on its own merits it doesn’t come across well, for reasons given mostly be Kevin and Steve. Here’s a few additional points.

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First, it is depressing to what extent the paper doesn’t acknowledge or address opposing positions or genuine legal uncertainties – especially if such uncertainties have been much discussed or if the opposing positions actually constitute mainstream views outside the US. The paper is written more like a piece of advocacy for positions already firmly determined than as a piece of legal advice – I imagine that this is because it was intended for a Congressional audience, where the Obama administration’s drone policy already enjoys broad bi-partisan consensus, and I hope that the OLC memo is significantly more rigorous in this respect. For example, the view that the US is engaged in a global non-international armed conflict with Al-Qaeda and associated forces is asserted rather than defended – note on p. 3 the rather self-referential citations to previous speeches by administration officials, or the reference to the Hamdan decision which does not in any way acknowledge that there are real doubts as to what the Supreme Court actually said in that case in terms of conflict classification and why.

Second, like the big Holder speech before it, the White Paper has a bit of a citizenship fetish. Note that the actual text of the relevant amendments to the US Constitution that the paper scrutinizes makes no distinctions on the basis of US citizenship. Nor is there (to the extent I’m aware) any real ‘original understanding’ going back to the times of the Framers as to how the US Bill of Rights would apply extraterritorially that somehow mandates such critical reliance of citizenship as the sole basis for constitutional rights outside US territory. As I argued with regard to the Holder speech, the position that non-citizens can be killed much more easily than citizens, without any entitlement to a capture-before-kill analysis, is in my view morally and constitutionally repugnant, as is the whole discourse around it (I find it equally objectionable that say the ACLU or other NGOs will in their media appearances and the like at least imply that killing a citizen is somehow worse than killing a non-citizen).

Third, while the paper is mostly concerned with issues arising under US domestic law, its analysis of relevant international law shows much conceptual confusion. As with the various speeches before it, we again have frequent conflations between the jus ad bellum and the jus in bello - note the references to the existence of armed conflict and national self-defense as alternative justifications for the use of force, as if the two operated on the same level of analysis; note also the references to neutrality (pp. 1 and 4-5), even though we are (supposedly) in the realm of non-international armed conflict, and that there are doubts as to the interaction between the law of neutrality and the Charter prohibition on the use of force even in IACs.

Similarly, while the paper sort of takes note of the critique of the US single global NIAC position on the basis of the Tadic criteria of intensity and organization (p. 4), it just proceeds to brush off this critique by using analogies to the geographic scope of IACs. While I think that analogy is not wholly misplaced, the paper fails to do justice to what is undeniably a very complex issue – it is simply not obvious that say a guy

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picked up somewhere in Bosnia and stickered with an Al-Qaeda label has a genuine connection to any kind of NIAC between the US and AQ (for my thoughts on this see here, at 31 ff).

Perhaps the most egregious example of such conceptual confusion can be found in the discussion of imminence under the Due Process Clause of the Fifth Amendment, where the DoJ cites the views of the former UK Attorney-General, Lord Goldsmith with regard to imminence under the jus ad bellum (p. 7), when he was dealing with the entirely different matter of whether Art 51 of the Charter requires an armed attack to have actually occurred before a state may respond in self-defense. If, for example, the territorial state (e.g. Yemen or Pakistan) validly consents to the use of force on its territory by the US, questions of self-defense, imminent as opposed to actual armed attack and the jus ad bellum generally become completely irrelevant, since their purpose is precisely to protect the sovereignty of the territorial state. If an imminence standard is appropriate, whether under the US Constitution or under international human rights law (which the DoJ completely neglects), then it stands on its own and is not in any way derived from the jus ad bellum. Rather, it is tied to the danger that the targeted individual poses and the feasibility of his or her capture – it is the rights of the individual, not those of the state, that lead to such an inquiry.

“The Controversy over DOJ’s Targeted Killing White Paper”

Jonathan Hafetz at Balkinization (February 6, 2013)

The media and blogosphere are abuzz over the release (via a leak) of DoJ’s “white paper” outlining legal arguments used to support the targeted killing of a U.S. citizen in Yemen described as a “senior operational leader of al Qaeda or of an associated force.” It is not difficult to see why. The white paper highlights the collision of a new technology that enables killing by remote control (drone warfare) and a novel concept of war itself, one waged increasingly away from “hot battlefield”—that is, the war formerly known as the Global War on Terror (GWOT). Both are highly controversial, and the subject of much uncertainty. Yet, rather than resolve questions, the white paper begs more.

The white paper’s international law analysis is imprecise and confusing (perhaps, in places, deliberately so). It oscillates between two justifications for targeted killings: the use of military force against members of enemy forces during armed conflict and the use of force in self-defense (here, the paper cites, but does not quote, article 51 of the U.N. Charter). The paper is problematic on both fronts. As to the former, it assumes there is a global non-international armed conflict (NIAC) against al Qaeda and associated forces—a point contested by many international law scholars (see Kevin Jon Heller’s indispensable posts here and—and, contrary to the

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white paper, one not actually endorsed (not yet anyway) by the Supreme Court. Not only did Hamdan recognize only a non-international armed conflict with al Qaeda in Afghanistan, but the Supreme Court has historically been very cautious in addressing the government’s claim that changing conceptions of war require expanded presidential powers (an argument pressed not only in Hamdan, Hamdi, and other GWOT cases, but also in Youngstown, Quirin, and other cases from more conventional armed conflicts where the government invoked the idea of ‘total war’). The paper also fails to engage with IHL rules on targeting civilians in NIAC, particularly with the requirement of direct participation in hostilities (likely because the government views it as too restrictive). As to self-defense, the white paper does not address how its elastic concept of “imminence” expands upon existing international-law definitions and understandings of the term.

The white paper’s constitutional analysis is also problematic. The paper glosses over the lurking substantive due process question. I agree with the paper’s conclusion that U.S. citizenship does not immunize an individual from the use of military force. That is the upshot of Quirin and Hamdi (while the former dealt with military trial and the latter with military detention, both support the argument that deadly force may potentially be used against citizens in time of war). Those cases (not to mention Milligan) also suggest, however, that the U.S. government cannot constitutionally kill a U.S. citizen under a law-of-war rationale unless that use of force comports with the law of war. Further, but importantly, the cases suggest that a statute (here, the 2001 Authorization for Use of Military Force (AUMF)) should not be construed as authorizing the use of deadly force against a constitutionally protected target unless that use of force is firmly grounded in the law of war. Note here Quirin and Hamdi’s reference to clearly established and universally accepted law-of-war principles in finding the president's use of the military constitutional.

The paper does acknowledge that procedural due process can limit the president’s authority to use military force against a U.S. citizen, citing Hamdi and its invocation of the Matthews v. Eldridge balancing test. But, as Steve Vladeck has pointed out, the paper ignores the prong of the test focused on the risk of error and the value of additional safeguards in minimizing that risk. The paper further concludes that judicial process is unwarranted.

As a recent report, The Civilian Impact of Drones: Unexamined Costs, Unanswered Questions, makes clear, the risk of error in drone attacks remains significant, despite technological improvements. But there is no judicial examination of the standards the government utilizes, even ex post. Nor is there any remedial structure in place—judicial or otherwise—for civilians harmed by drones in Pakistan, Somalia, and Yemen. Such a structure not only could provide some compensation to victims, but also could provide some check on the drone program and the process it employees in selecting targets and carrying out attacks.

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But perhaps my biggest concern with the constitutional analysis is what the paper doesn’t address. Because it concerns only the targeted killing of a U.S. citizen, it does not engage with the question of what, if any, constitutional protections are afforded non-citizens, who are the overwhelming target of drone strikes. What, if any, role does the Constitution play in limiting drone attacks against non-citizens? Presumably none. The U.S. has consistently resisted recognizing the Constitution’s extraterritorial application to non-citizens. This means then that the white paper likely reflects the U.S. government’s most robust interpretation of the constitutional limits of its targeted killing program. To the extent the Constitution serves as a constraint on drone strikes in a case like the one described in the white paper, that constraint would be absent from virtually every other scenario.

The complexity of the issues, the continuing concerns about the program’s legality, and the absence of any judicial check, at minimum, demand greater transparency to allow for more informed public debate. This is particularly so given the nature of drone warfare, which is conducted largely in secret and which avoids the type of U.S. troop involvement that can cause the public to question the government’s actions. (Greater transparency is thus critical to what Mary Dudziak describes here as the need for ‘a new form of war politics’). There is no legitimate basis for the Obama administration’s refusal to release the white paper, which was never classified in the first place. (It should also release the legal reasoning in the underlying Office of Legal Counsel memo on which the paper is based). Indeed, one might think that President Obama—who has otherwise been so pragmatic in approaching national security issues—could be eager to release the legal basis for targeted killing since failing to do so suggests there is something to hide.

“President Obama Can Do Anything He Wants To Fight Terrorism”

That’s the lesson of the leaked drone memo.

Eric Posner at Slate (February 5, 2013)

So far, the reporting on the leaked white paper from the Justice Department about drone attacks clearly assumes that we are supposed to be outraged by the Obama administration’s legal theories, just as we were supposed to be outraged by the Bush administration’s. And outrage is being dutifully ginned up. But the memo is utterly conventional as legal analysis; its arguments could easily have been predicted. It’s most useful as an opportunity to reflect on how the law has evolved to address the problem of terror.

All you need to know in order to understand the memo is that Obama administration lawyers have enthusiastically endorsed the once-vilified Bush administration

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decision to classify security operations against al-Qaida as “war” rather than as “law enforcement.” This was not an inevitable decision. Obviously, the use of military force in Afghanistan was a military operation, and to the extent that members of al-Qaida joined Taliban soldiers in defending the Afghan homeland against the U.S. attack, they could be killed on sight and detained without charges, as is permitted by the international laws of war. But the U.S. government could otherwise have regarded al-Qaida as a criminal organization like a street gang or drug cartel. Outside the battlefield in Afghanistan, the government would then have pursued members of al-Qaida with conventional law enforcement measures.

If the administration had taken the law enforcement approach, members of al-Qaida who are American citizens would have had the same rights to due process that are familiar from everyday policing. We would send FBI agents to foreign countries like Yemen after obtaining permission from governments to conduct joint law enforcement operations. Or we would have asked foreign governments to arrest suspected members of al-Qaida and extradite them to the United States. We could not have sent drones to kill them. We would have offered them trials in civilian courts.

But, at Bush’s urging, Congress did not authorize war (only) against Afghanistan; it also authorized war against al-Qaida. That meant that members of al-Qaida would be treated as belligerents. U.S. forces could shoot them on sight, just as they could drop bombs on German military formations during World War II. They could detain suspected al-Qaida members without charging them or giving them trials and hold them as detainees, just as thousands of German soldiers were held as detainees during World War II. And it doesn’t matter if you’re an al-Qaida member who happens to be a U.S. citizen, just as it didn’t matter if you were a German soldier who happened to be an American citizen during World War II. U.S. forces could capture or kill American citizens who joined German forces and detain them as POWs, and they did so.

That said, clearly the analogy is not perfect, and the memo lays out a narrower standard for killing U.S. citizens than would be used in a conventional war. It must be the case that (1) an informed, high-level U.S. official believes that the individual in question poses an imminent threat of violent attack; (2) capture is not feasible; and (3) the operation complies with the laws of war. The author of the DOJ memo pulls these requirements out of his or her hat. They are formally derived from the due process clause, via the 2004 war-on-terror case Hamdi v. Rumsfeld, which in turn adopted the rule from an old case called Mathews v. Eldridge (about the right to Social Security disability benefits of all things), which provided that one must “balance” the private interest and the government interest. So the memo “balances” the interest of the target in his own life against the interest of the government in protecting other citizens, and the three-prong rule is simply asserted as the outcome of that balancing.

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There are several odd features of this standard that deserve comment. First, a “high-level” official (the president?) must make the determination rather than someone else in the military hierarchy, which is not the case in ordinary warfare. Nor do normal military operations require a determination that capture is infeasible before the use of lethal force. It may well make political sense for the U.S. government not to kill a U.S. citizen via drone attack without these determinations, but it is hard to see why any of this is legally required once one accepts the premise that al-Qaida, and its associated forces, pose a military threat in the same way that Nazi Germany did. To be sure, al-Qaida does not pose as much a military threat, but no one has ever argued that this makes any difference. The unstated premise must be that a roving assignment to kill anyone who is a member of al-Qaida, or seems like a member of al-Qaida, or a member of an “associated force” of al-Qaida, which may well mean any Islamic terror group or even charity, is more questionable and more subject to abuse than an order to shoot a member of the armed forces of a belligerent state. So the memo limits somewhat the degree of executive discretion by using elastic terms. (How high is ‘high’? How feasible is capture? What is an ‘associated force’?) In the end, all of this will do little to constrain anything.

Second, the memo both fixates on the concept of the imminence of the threat the target poses—the word appears dozens of times—while depriving it of all meaning. It turns out that the high-level official does not actually need to believe that the targeted individual is in the process of launching an attack or is about to start one. That would be too high a bar. Instead, the memo assumes that al-Qaida is constantly planning attacks, so anyone who is an “operational leader” and “is personally and continually involved in planning terrorist attacks” against the United States counts as an imminent threat. They don’t sleep or go on vacation—they are always fair game.

This is not a crazy view. German soldiers during World War II were fair game even when they were asleep in their barracks. But the question is why the lawyers would at once focus on the word imminence and ignore its meaning. The only reason I can think of is that international law says that military force can be used in self-defense only against imminent threats, and many international lawyers resist the idea that the United States can be at war with al-Qaida (because it is neither a nation-state nor a conventional insurgency) or with “associated forces,” which may be any group, anywhere in the world, that interacts with or shares the ideology of al-Qaida. And recently, nations belonging to the International Criminal Court agreed to give that court the leeway to deal with the “crime of aggression.” A drone strike against a member of al-Qaida in a country that has not given permission for such a strike would certainly count as such a crime of aggression—unless it was part of a war of self-defense, that is, a response to an “imminent” threat. Calling any use of military force against al-Qaida a response to an imminent threat may be an effort to forestall future accusations of war crimes against Obama administration officials similar to those directed at Bush administration officials. But if so, it’s a flimsy one.

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Obama and Bush administration lawyers have stretched the Constitution and traditional rules of international law to accommodate the threat posed by terrorism. Some people will say they violated the law. But given the political consensus supporting these moves within the U.S., it is more accurate to say that the law has evolved. It gives the president the discretion he needs, or at least wants, to address an amorphous threat. Let’s hope he uses that discretion wisely.

“Just Calm Down About that DOJ White Paper”

By Benjamin Wittes and Susan Hennessey at Lawfare (February 15, 2013)

Okay, everyone, take a deep breath. Chill out. The DOJ’s “White Paper” on targeted killing is no big deal. Really.

You wouldn’t know this from reading the somewhat breathless press coverage of the document, much of which offers a reasonable reader some confusion as to what the White Paper actually is.

The more responsible reporters have been reasonably careful. Michael Isikoff’s original story for NBC News calls the document a “confidential Justice Department memo,” and a “confidential Justice Department ‘white paper.’” Isikoff goes one to say that, “Although not an official legal memo, the white paper was represented by administration officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s Office of Legal Counsel.” Isikoff then says, rather more tendentiously, that the document authorizes the killing of U.S. citizens who are top operational Al Qaeda figures “even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.” This latter point is, to put it mildly, a stretch.

Charlie Savage and Scott Shane in the New York Times refer to the document as “[t]he unsigned and undated Justice Department ‘white paper.’” They note that,

The paper is not the classified memorandum in which the Justice Department’s Office of Legal Counsel signed off on the killing of Anwar al-Awlaki, a radical Muslim cleric who was born in New Mexico and who died in an American drone strike in Yemen in September 2011. But its legal analysis—citing a national right to self-defense as well as the laws of war—closely tracks the rationale in that document, as described to The New York Times in October 2011 by people who had read it.

The document, they write, “appears to be a briefing paper that was derived from the real legal memorandum in late 2011 and provided to some members of Congress.”

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But to read some of the other stories on the subject, you might think that the Obama administration had crafted and released to the Hill a “White Paper” that staked out bold new ground on killing Americans. It hasn’t. What has happened, rather, is that a document has been leaked that tracks closely previous public statements by the administration and that adds marginal flesh to those statements in some respects.

Let’s start by clearing up what this document is and isn’t. In the wake of the Al Aulaqi strike, there were widespread calls for the release of the OLC memo proclaiming the strike legal. This produced, inside the administration, a discussion regarding what the administration could and could not release about that memo. There were, loosely speaking four possibilities: (1) say nothing, (2) give a speech, (3) release a white paper, and (4) release a redacted version of the memo itself. The interagency process being what it is, the real debate was between the second and third options. And ultimately, the speech idea prevailed. In a speech at Northwestern University last March, Attorney General Eric Holder laid out the case that the killing of a person like Al Aulaqi (though he did not address the case specifically) would be lawful under both international law and the U.S. Constitution—and that it would not violate the targeted person’s due process rights.

The White Paper, however, had been drafted, and while it was never released publicly, it was apparently given to people on the Hill. Like Holder’s speech, it tracks the OLC memo—and it goes into somewhat more detail on certain points than Holder did. But here’s the thing: It’s the same argument. Nobody who has read and understood Holder’s Northwestern speech can reasonably be surprised by anything about this document. The argument is old hat—and we have known for almost a year that this was the administration’s view.

Both Holder and the White Paper set forth three essential conditions for targeting a U.S. citizen in a foreign country, when that individual is a senior operational leader of al Qaeda or its associated forces. Both Holder and the White Paper make clear that there may be other circumstances under which targeting of citizens would be lawful and appropriate. But both argue that targeting is lawful at least if these three conditions are met. Holder elaborates less on each of these conditions, but his speech and the new document track very closely.

First, both Holder and the White Paper argue, the individual must pose an imminent threat of violent attack against the United States. Second, capture must not be feasible. And third, the operation must be conducted in a manner consistent with applicable law of war principles.

So what does the White Paper really add to Holder’s speech? The short answer is not all that much, a little bit of flesh on some bones here and there, but nothing—and we mean nothing—that fundamentally changes the argument.

Here’s what’s new:

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Holder’s speech, as we noted, includes the condition that “capture is not feasible.” He notes that feasibility is a “fact-specific” and “time-sensitive” question. And according to Holder, the inquiry into feasibility is guided by assessing the window of opportunity to effectuate a capture before a terrorist attack takes place and the ability to do so without “undue risk to civilians or U.S. personnel.” The White Paper elaborates a little bit. It says that “capture would not be feasible if it could not be physically effectuated during the relevant window of opportunity or if the relevant country were to decline to consent to a capture operation” (emphasis added). The White Paper also adds a feature to this condition, noting not only that “capture [must be] infeasible” for a strike to be lawful, but that “the United States [must] continue[] to monitor whether capture becomes feasible.” In other words, capture must not be feasible in the immediate moment, and there must be some ongoing assessment of the potential for capture as time goes on. Later, in discussion of the applicable laws of war, the White Paper also states that the United States would be “required to accept a surrender if it was feasible to do so.” So there’s a little added texture on the feasibility of capture question.

The White Paper adds a little more to Holder’s speech on the imminence requirement. This section of the paper has generated a lot of criticism from commentators like Kevin Jon Heller and Jameel Jaffer. But whether one agrees with these critics or not, the White Paper’s position should, again, come as no surprise. Holder, after all, said back in March:

The evaluation of whether an individual presents an “imminent threat” incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States. As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice—and to cause devastating casualties. Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military—wearing uniforms, carrying arms openly, or massing forces in preparation for an attack. Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning—when the precise time, place, and manner of an attack become clear.

This clearly suggests a more relaxed conception of “imminence” than the immediate temporal implications of the word itself might suggest. And that was well understood at the time Holder gave his speech, both by critics and by defenders of the administration’s position. The White Paper fleshes out this point a little, stating clearly that “imminent threat” includes the operational leader who is “continually planning attacks”:

By its nature, therefore, the threat posed by al-Qa’ida and its associated forces demands a broader concept of imminence in judging when a person

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continually planning terror attacks presents an imminent threat, making the use of force appropriate. In this context, imminence must incorporate considerations of the relevant window of opportunity, the possibility of reducing collateral damage to civilians, and the likelihood of heading off future disastrous attacks on Americans. Thus, a decision maker determining whether an al-Qa’ida 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-Qa’ida 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.

Given this reality, the White Paper concludes, an operational leader of Al Qaeda may be considered to pose an imminent threat if he,

is personally continually involved in planning terrorist attacks against the United States. Moreover, where the al-Qa’ida member in question has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qa’ida’s continuing terrorist campaign against the United States would support the conclusion that the member poses an imminent threat.

This is hardly a revolutionary advance over March. Indeed, it’s exactly what a reasonable person would have understood the government’s position to be based on Holder’s speech.

What else is new in the White Paper? Holder’s speech does not go into the War Crimes Act or 18 U.S.C. § 1119(b), forbidding the killing of U.S. nationals abroad. The White Paper devotes a section to each, explaining why the targeting of an American citizen who is an operational leader of Al Qaeda would not violate either. Moreover, Holder doesn’t spend time on the Fourth Amendment issues targeting killing might be said to raise—which the White Paper also treats. And while he talks in broad terms about due process, he does not go into the Matthews v. Eldridge analysis that the White Paper undertakes and that Steve critiqued earlier this evening.

But these are not the issues on which the press, or the administration’s critics, are focusing on. And the truth is that the issues that have grabbed all the headlines over the past 24 hours—the claimed authority to kill U.S. citizens under a very

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narrow set of circumstances—involve only the most incremental advances over what the administration has previously said.

“What’s Really Wrong with the Targeted Killing White Paper”

By Steve Vladeck at Lawfare (February 5, 2013)

There’s certainly a lot to say about the DOJ white paper on targeted killings, much of which has been said already (and well) by others (see Raff’s ‘Headlines and Commentary’ post for links). At the risk of being unintentionally repetitive, I offer below the fold my own (exasperated) reactions to last night’s release–and to the 16-page memo on its own terms:

I. These Aren’t the [Rationales] You’re Looking For…

First, the white paper is thoroughly disappointing. I’m one of the many who have been calling for quite some time now for the Obama Administration to provide the public with a clearer and more detailed legal analysis supporting the various public statements made by, among others, Eric Holder, John Brennan, Harold Koh, and Jeh Johnson, with respect to the targeted killings program.

This ain’t it.

Unlike the 2006 wiretapping white paper, which offered a pretty detailed survey of the relevant legal authorities and the government’s views of how they did or did not constrain warrantless foreign intelligence surveillance, this white paper is short on detail–which, if nothing else, unintentionally fuels conspiracy theories about the true breadth of the power that the government might actually be claiming behind closed doors. In fact, I have to imagine that the <cough> alleged <cough> OLC memo on which this white paper is based is necessarily much more detailed and nuanced–and leaves much less room for such conspiracy theories. It would have to be if it explains how these general criteria are specifically satisfied in an individual case–and, in the process, it would be far more comforting, at least to me, to see the rigor in application of these otherwise vague generalities. Pity, then, that this is what we’re left to evaluate.

Indeed, whether because the Department of Justice has been tone-deaf to these criticisms or because it is too constrained by other considerations that are lost upon me, the fact that this is the white paper they’ve chosen to release suggests that they’ve totally missed the point of these demands for public justification: It’s the process that we’re all interested in–how, exactly, the government decides that the various criteria it articulates for these strikes are met, who is in the room when such decisions are made, and whether anyone tries to argue the opposite side. Accepting, as I do, that there are necessarily some number of cases in which the government may lawfully use lethal force even against its own citizens, the issue

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reduces to how the government decides that such a case is presented–and what checks there are to minimize false positives… Nothing in the white paper provides any further elaboration on this point–and because of that, it’s that much more mind-boggling that it took this long (and even then, only through a leak) for even this discussion to be publicly disclosed. After all, it’s not like anything in this white paper is classified…

II. My Idiosyncratic View That the Substantive Discussion is Beside the Point

The above helps to explain why I think my friend Kevin Heller is picking the wrong fight over at Opinio Juris when he takes issue with the substantive international law discussion in the white paper. First, I suspect the discussion of imminence in the white paper has little to do with international law (at least in situations in which we’re in a non-international armed conflict with the group of which the target is a senior operational leader), and is more about the domestic constitutional analysis (more on that in a minute). Second, and in any event, as I mentioned above, I imagine that almost all of us would agree that there are some circumstances in which the government is allowed to use lethal force even against its own citizens. I also suspect we could reach a fair amount of consensus on the relevant criteria that should apply to justify such uses of force. This is why, per the above, I’ve always thought this debate was principally about the process questions, not the substantive ones. And, as noted above, the white paper is useless, if not counterproductive, on that point.

III. Whither the Second Mathews Factor?

As for process… I wrote this post last March in response to Attorney General Holder’s speech at Northwestern, in which he gave a fairly full-throated defense of the targeted killing program. As I noted then, the Attorney General’s invocation of the balancing test for due process articulated in Mathews v. Eldridge had curiously omitted the second prong of that test, i.e., “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.” Just to be clear, this is the most important part of the Mathews test, since the other two prongs are the private interest and government interest, respectively. It’s the second prong of the Mathews test that actually cares about the risk of false positives, and whether that risk is sufficiently great so as to justify the additional cost of more process.

What’s telling about the white paper is that it repeats Holder’s speech (or, more likely, Holder repeated the white paper) word-for-word, including the categorical omission of the second Mathews factor [see the spillover paragraph at pp. 5-6.] There’s no discussion–none–of the risk of false positives under the existing procedures, or the potential cost of additional process. This turns the Mathews test on its head, for it suggests that the relevant question in any case is simply whether

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the balancing of the interests supports the already provided level of process–and not whether the error rate and/or cost of more process is at all relevant to that determination. Not only has the Supreme Court never so understood the Mathews test, but such an approach would convert an already controversial metric for “measuring” due process into a completely standardless one–and completely obfuscate the underlying principle that the government has an obligation to provide as much process as can reasonably be expected under the circumstances.

IV. Whither Judicial Review?

That leads to my larger problem with the white paper. AG Holder’s speech last March was most famous for the following passage:

“Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.

Many of us wondered, at the time, just where this came from–since it’s hard to imagine what due process could be without at least some judicial oversight. On this point, the white paper again isn’t very helpful. The sum total of its analysis is Section II.C, on page 10, which provides that:

[U]nder the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional considerations. It is well established that “[m]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention,” because such matters “frequently turn on standards that defy the judicial application,” or “involve the exercise of a discretion demonstrably committed to the executive or legislature.” Were a court to intervene here, it might be required inappropriately to issue an ex ante command to the President and officials responsible for operations with respect to their specific tactical judgment to mount a potential lethal operation against a senior operational leader of al-Qa’ida or its associated forces. And 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 against which Congress has authorized the use of force.

There are two enormous problems with this reasoning:

First, many of us who argue for at least some judicial review in this context specifically don’t argue for ex ante review for the precise reasons the white paper suggests. Instead, we argue for ex post review–in the form of damages actions after the fact, in which liability would only attach if the government both (1) exceeded its authority; and (2) did so in a way that violated clearly established law. Whatever else might be said about such damages suits, they simply don’t raise the

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interference concerns articulated in the white paper, and so one would have expected some distinct explanation for why that kind of judicial review shouldn’t be available in this context. All the white paper offers, though, is its more general allusion to the political question doctrine. Which brings me to…

Second, and in any event, the suggestion that lawsuits arising out of targeted killing operations against U.S. citizens raise a nonjusticiable political question is almost laughable–and is the one part of this white paper that really does hearken back to the good ole’ days of the Bush Administration (I’m less sold on any analogy based upon the rest of the paper). Even before last Term’s Zivotofsky decision, in which the Supreme Court went out of its way to remind everyone (especially the D.C. Circuit) of just how limited the political question doctrine really should be, it should’ve followed that uses of military force against U.S. citizens neither “turn on standards that defy the judicial application,” nor “involve the exercise of a discretion demonstrably committed to the executive or legislature.” Indeed, in the context of the Guantánamo habeas litigation, courts routinely inquire into the very questions that might well arise in such a damages suit, e.g., whether there is sufficient evidence to support the government’s conclusion that the target is/was a senior operational leader of al Qaeda or one of its affiliates…

Don’t get me wrong: Any suit challenging a targeted killing operation, even a post hoc damages action, is likely to run into a number of distinct procedural concerns, including the difficulty of arguing for a Bivens remedy; the extent to which the state secrets privilege might preclude the litigation; etc. But those are the arguments that the white paper should’ve been making–and not a wholly unnuanced invocation of the political question doctrine in a context in which it clearly does not–and should not–apply.

V. A Modest Proposal

This all leads me to what I’ve increasingly come to believe is the only real solution here: If folks are really concerned about this issue, especially on the Hill, then Congress should create a cause of action–with nominal damages–for individuals who have been the targets of such operations (or, more honestly, their heirs). The cause of action could be for $1 in damages; it could expressly abrogate the state secrets privilege and replace it with a procedure for the government to offer at least some of its evidence ex parte and in camera; and it could abrogate qualified immunity so that, in every case, the court makes law concerning how the government applies its criteria in a manner consistent with the Due Process Clause of the Fifth Amendment. This wouldn’t in any way resolve the legality of targeted killings, but it would clear the way for courts to do what courts do–ensure that, when the government really is depriving an individual of their liberty (if not their life), it does so in a manner that comports with the Constitution–as the courts, and not just the Executive Branch, interpret it. It’s not a perfect solution, to be sure, but if ever there was a field in which the perfect is the enemy of the good, this is it.

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“Confusion about ‘Imminence’ and Targeted Killings”

By Rick Pildes at Lawfare (February 6, 2013)

The central substantive issue, legally and morally, in the administration’s Targeted Killing White Paper is how the concept of an “imminent threat” should be understood. This is where much of the debate is going to focus. Already, outrage from American critics has been directed to this point, as in the response from Jeff Rosen and, from the ACLU, Jameel Jaffer. For example, Jaffer argues that the administration “redefine[s] the word imminence in a way that deprives the word of its ordinary meaning.” In my view, these criticisms rest on a fundamental confusion, but it is a confusion that the White Paper itself also reflects.

The source of the problem is trying to reason from the context of domestic threats to the international context. Jeff Rosen, for example, argues that the constitutional law on when police can shoot a fleeing felon within the United States has a much tighter imminence requirement than the White Paper does; he complains that the White Paper twists precedents like this beyond recognition.

The impulse to turn to these domestic examples is understandable: given that we have so little domestic law on these issues in the international realm, it is natural to try to fill in that gap by turning to how the law treats imminent threats within the U.S. Moreover, the White Paper invites these comparisons, because it too relies on these domestic analogies.

The problem, though, is that domestic law is developed in the context of a specific set of institutions and structures that simply don’t exist in the international sphere. Put another way, built into the legal rules in the domestic context is a whole set of premises and taken-for-granted institutions. In particular, deadly force is justified only when the threat is imminent in the narrowest sense precisely because the assumption is that there are many other means available for neutralizing that threat if it is not immediate. We have domestic law enforcement capacities that allow arrest; we have civil commitment proceedings for the dangerous mentally ill. These and other institutional alternatives might be imperfect in practice. But the domestic law is built, and has to be built, on the understanding and premise that these other institutional structures can keep us safe against those threats that are not immediately imminent.

In the international sphere, of course, the entire problem in the first place is that there are no alternative institutional structures in place that can effectively neutralize the threat in weak or failed states, like Yemen. We can afford to run certain risks in domestic contexts, and the law requires that we do so, because these alternative institutional mechanisms exist. To take the law that is embedded within these other mechanisms and try to extend it formally to contexts without

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these mechanisms is to forget the underlying reasons the domestic law on imminence has the structure that it does.

But the White Paper itself does not bring sufficient clarity to these issues. It argues for a broader concept of imminence based solely on the unique nature of the threat that terrorism poses. The threat is different, but that is an incomplete and inadequate explanation that does not get at the root of the differences. The White Paper emphasizes, of course, that capture must not be feasible, but it fails to appreciate how that point is central to the imminence issue. And indeed, the White Paper then turns around and encourages this confusion by invoking the domestic examples of imminent threats and trying to argue that targeted killings essentially meet the domestic law treatment of the issue.

My point is not to take a specific position on what the exact boundaries of imminence ought to be in the context of self-defense against threats that originate overseas from non-state actors. It is to say that we will constantly be talking past each other at the very foundations of this issue if we assume that we should ground that discussion on how imminence is dealt with inside a functioning, domestic legal system. Also, I am focusing here only on the debates about how the U.S. Constitution should be understood in this context, not on how the concept of imminence should be understood as a matter of international humanitarian or international human rights law. The points made here might well have some relevance to the international law side, but that is a different body of law, with its own principles and rules, and I am not making any direct argument about how international law should treat imminence (on that, see this post from Kevin Heller).

A Brief Word In Response to Jack

By Benjamin Wittes and Susan Hennessey at Lawfare (February 6, 2013)

We don’t disagree with Jack that the filling in of details in the White Paper is important—and didn’t mean to suggest otherwise. But the importance Jack assigns to this aspect of the White Paper is decidedly not what has made it headline news for just about every major news organization in the country. If that were the case, the appropriate headline would have been: “Another Summary of the Same Legal Argument on Targeted Killing: Administration’s Position Fleshed Out a Little.” And that’s not the headline anyone is running. What animates the whole debate over this document, rather, has been a sense of this as something big and new—and different. And that’s wrong.

The naive reader of Michael Isikoff’s original piece, for example, would learn from his first sentence of a “confidential Justice Department memo” that “concludes that the U.S. government can order the killing of American citizens . . . even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.” This

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reader would have to dive deep into the story before finding out that this “confidential Justice Department memo” is not, in fact, the famed OLC memo authorizing the strike. And while the story describes Attorney General Eric Holder as having given a speech on same the subject that follows the same broad arc as the White Paper, it consistently emphasizes where the memo goes further than Holder—thus implying that that in important respects, the White Paper has broken new ground. Nothing Isikoff says is demonstrably wrong, but a naive reader comes away with the wrong idea both about what the document is and about its marginal value.

And this presentation of the matter has hugely affected the press coverage more broadly. Just look at the headlines:

From Mother Jones: “Obama Targeted Killing Document: If We Do It, It’s Not Illegal“

From Wired: “Obama’s Memo on Targeted Killings Is a Drone Strike on the Law“

From CNN’s Security Clearance: “Memo backs U.S. using lethal force against Americans overseas“

From the New Yorker: “Whom Can the President Kill?“

From Fox News: “Obama drone program’s potential targeted killing of American citizens abroad opens a dangerous legal slippery slope“

From The Washington Post: “The Justice Department’s chilling ‘targeted killings’ memo“

From Global Post: “Justice Department memo justifies targeted killing of Americans“

We could go on. But you get the point. This document is not being received as—to use Jack’s phrase—important because it “fills in the details of the legal arguments made in general terms in leaks and speeches.” It’s being received as a bombshell of its own. And while the document is certainly important for the added richness and texture it offers elite readers, its marginal value to the mass audience is very nearly nil.

“Does Anyone Have Standing to Challenge the Kill List Procedures?”

By Mike Dorf at Dorf on Law (February 8, 2013)

The ‘kill list’ is back in the news, with the publication of a white paper that sets out the core of the Obama Administration’s legal rationale for killing American citizens suspected of terrorism. When word of the underlying memo first leaked in the fall of

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2011, I noted my puzzlement at how it appeared to blend analysis based on both a war paradigm and a domestic law enforcement paradigm, but I have since come to think that this approach was more or less required by Hamdi v. Rumsfeld, which applied a due process paradigm developed in the context of civilian cases to the detention of Americans captured in war. The white paper confirms the Administration’s reliance on Hamdi.

The substantive legal debate centers on two issues: (1) What criteria must be satisfied in order for the U.S. to kill a U.S. citizen suspected of terrorism? and (2) What institution makes that judgment. Civil libertarians tend to argue for strict criteria and judicial oversight, whereas national security hawks tend to argue for looser criteria and lodging the decision in the executive. A good sample of the range of views on these questions can be found in the recent NY Times Room for Debate segment on the question. For an excellent analysis that goes much deeper into the relation between the domestic law enforcement and international humanitarian legal issues, I recommend the forthcoming law review article, “The Duty to Capture,” by my colleague Jens Ohlin.

Now onto my own limited contribution: A thought on standing.

In their public defenses of the targeted killing program, government spokespersons have argued that substantial safeguards are in place within the executive branch. At the same time, however, the government has resisted Freedom of Information Act (FOIA) requests about the details of the program, with considerable success. For example, last month, the government won a motion to dismiss a FOIA lawsuit. Even as Judge McMahon ruled in the government’s favor, she lamented:

The Alice–in–Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules—a veritable Catch–22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for its conclusion a secret. But under the law as I understand it to have developed, the Government’s motion for summary judgment must be granted, and the cross-motions by the ACLU and the Times denied.

The release of the white paper responds to Judge McMahon’s particular frustration, but it only sets forth general justificatory principles. It does not disclose the procedures the executive branch uses to evaluate whether any particular targeting decision is lawful and it certainly does not disclose whether any particular individual is on the kill list.

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Likewise, the recent decision by the White House to share the underlying Justice Dep’t memos with two congressional intelligence committees is only a partial response to the ‘Alice-in-Wonderland’ problem. It’s not all of Congress; certainly the public won’t find out the full content of the memos, at least not yet; and from what is known publicly, it appears that the memos themselves only contain a legal justification for targeted killings, not a description of the procedures that the executive branch uses to determine whether the substantive criteria are satisfied in any particular case. I could be wrong about that last point, of course, because of the secrecy of the memos, but that just takes us back to...well...the secrecy of the memos.

Thus, for particular individuals, there continues to be a Catch-22, albeit a procedural one. Suppose you think that the executive branch procedures for formulating the kill list either have or potentially will have the effect of wrongly putting you on the kill list. Suppose further that you think the government is wrong about judicial oversight: you think that due process requires, at the very least, that a court should get to examine the executive procedures to determine whether they are adequate. Can you sue? In other words, do you have standing to go into court to make the argument that a court should get to review kill-list procedures? Surely you have the right to go to court to test whether you can go to court, right? Probably not.

Consider the case of Anwar al-Aulaqi. When word emerged that he was on the kill list, his father attempted to sue to enjoin the President from killing him. The federal district court rejected the lawsuit on jurisdictional grounds, finding, among other things, that al-Aulaqi pere lacked standing to represent his son’s interests. Less than a year later, the government killed al-Aulaqi fils in a drone strike.

The district judge’s standing decision did not preclude the possibility that al-Aulaqi fils could show up in court and have standing—except of course that al Aulaqi was not about to show up in court. And surely anybody who has good reason to think he’s on the kill list is extremely unlikely to show up in a U.S. court. But suppose someone who thinks he may be on the kill list because of a terrible misunderstanding (a case of mistaken identity, perhaps). Let’s say that this U.S. citizen so trusts the U.S. justice system that he’s willing to show up in a federal district court and present his evidence, even at the risk of being whisked away to Gitmo. Does such a person have standing?

Again, probably not, because my hypothetical kill list challenger will likely have a very difficult time showing that he is on the kill list. The government let it be known that al Aulaqi was on the kill list but in general the list is secret. Thus, another apparent Catch-22: If you want a court to say that the secret executive branch procedures for (maybe) putting you on the kill list were constitutionally inadequate, you first have to get into court to make your argument. To do that, you need to show that you are ‘injured’ by the procedures. But if you can’t even show you're on

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the list, how can you show that you’re injured by the inadequacies of the list-making process?

The answer depends on what threshold the courts require for showing a chance of injury. And as it happens, the SCOTUS has a case on its current docket presenting a closely related issue. This past fall, the Court heard argument in Clapper v. Amnesty International. The case presents the question of whether lawyers, journalists, human rights activists, and others have standing to challenge the electronic surveillance authorized by the Foreign Intelligence Surveillance Act (FISA). The district judge held that they did not because they could not establish that they were the targets of surveillance but the Second Circuit reversed, finding that it was sufficient to establish standing that the broad scope of the surveillance program gave rise to a reasonable fear of surveillance. It’s not clear from the oral argument which way the SCOTUS is leaning, but even if standing is upheld in Clapper, the odds are against a finding of standing for just about anyone to challenge the kill list.

The key to the Second Circuit’s holding was that the breadth of the electronic surveillance program gave rise to a fear of surveillance by a great many people. Even if the Supreme Court agrees with that view, that probably won’t help a plaintiff challenging the kill list because the kill list is much narrower than the electronic surveillance program. And of course, there’s no guarantee that the Court will affirm the Second Circuit’s standing holding in Clapper.

Accordingly, there is good reason to think that no one will be held to have standing to challenge the kill list procedures. Note what I’m not saying: I’m not saying that the courts will determine that the Constitution commits the formulation of the kill list to the President, or to the President in consultation with Congress; I’m saying that the courts may well determine that they don’t even have jurisdiction to answer the question of whether the Constitution requires judicial oversight of the kill list procedures. That conclusion would be consistent with the existing standing doctrine, which, I think, is a pretty damning commentary on the standing doctrine.

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