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. 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 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 groupwhere 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 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, saysthat 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 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 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 hasspecifically 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 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.