As Jameel discussed in an important post—“The Drone Memo Cometh”—the Second Circuit appears poised to publish the Office of Legal Counsel’s memorandum on the targeted killing of an American citizen.
As many readers know, the secret OLC memo reportedly served as a basis for the Justice Department’s 16-page White Paper (dated November 8, 2011), which Michael Isikoff at NBC News obtained and released on February 4, 2013. I thought it would be useful to assemble some online resources that analyzed the legal content of the White Paper. (Just Security did not exist at the time, so nothing from us back then.) In addition, some commentators identified “gaps” in the White Paper, which the OLC memo might address. I highlight five of those gaps below.
Here are some of the readings (in alphabetical order):
- David Cole, How We Made Killing Easy
- Kevin Jon Heller, The DoJ White Paper’s Confused Approach to Imminence (and Capture)
- Jameel Jaffer, The Justice Department’s White Paper on Targeted Killing
- Richard Pildes, Confusion about “Imminence” and Targeted Killings
- Benjamin Wittes and Susan Hennessey, Just Calm Down About that DOJ White Paper
There has been a lot of discussion about what the White Paper included, but what was the White Paper missing? Here are five gaps that commentators identified:
1. Procedure for determining predicate whether individual is “senior operational leader of al-Qa’ida or an associated force”
Jameel Jaffer wrote:
“Finally, the white paper assumes a key conclusion: It takes as a given that the target of the strike will be a “senior operational leader of al-Qa’ida or an associated force of al-Qa’ida,” and it reasons from that premise that judicial process is unnecessary. This is a little bit like assuming that the defendant is guilty and then asking whether it’s useful to have a trial. Perhaps the white paper omits analysis that appears in the Justice Department’s legal memos ….”
Similarly, Greg McNeal wrote:
“What’s missing from the white paper? All of the analytics and criteria that go into the kill-list creation process itself. That is to say, all of the bureaucratic analysis that takes place prior to the some high level official signing off on the white paper’s stated criteria. That means a lot is left out.”
2. Standard of proof
David Cole wrote:
“[T]he paper offers no guidance as to what level of proof is necessary: does the official have to be satisfied beyond a reasonable doubt, by a preponderance of the evidence, or is reasonable suspicion sufficient? We are not told.”
3. The third prong of the Mathews v. Eldridge test (decision errors and optimal procedures)
Jameel Jaffer wrote:
“The paper omits crucial language from Mathews v. Eldridge, a case in which the Supreme Court held that the question of what process must be afforded to a person before he is deprived of life or liberty must take into account ‘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.’ The white paper skips over this language, like the attorney general’s speech did. While the white paper does acknowledge ‘the risk of erroneous deprivation of a citizen’s life,’ it doesn’t grapple with the possibility of additional procedural safeguards.”
4. Procedural safeguards within the Executive Branch
David Cole wrote:
“Nor does the paper describe what procedural safeguards are to be employed. It only tells us what is not required: having a court determine whether the criteria are in fact met.”
“Nor does the paper discuss any alternative checks within the executive branch.”
5. A more complete analysis of the possibility of judicial review
Jameel Jaffer wrote:
“[W]hen the white paper dismisses the possibility of judicial review, it does so in a single paragraph that fails even to acknowledge the possibility of after-the-fact judicial review of the kind that our courts routinely provide in other contexts.”