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Reflections on What the Drone Memo Does and Doesn’t Say

There is already a lot of commentary on the OLC drone memo, and likely more to come. Here, I just want to highlight three key issues that should be part of the mix:

#1: Issues That the Memo Does Not Resolve

The memo relied in large part on an assumption that Anwar al Aulaqi posed a “continued and imminent” threat and that capture was not feasible. For the reasons that Steve has explained, it’s not at all clear how these determinations can be made in the abstract, without reference to the specific facts known at the time at which al Aulaqi was actually killed (which occurred 14 months after the memo). But even before one gets to the necessary after-the-fact analysis, there needs to be clarity about the standards that are being applied.

To be clear, I think it is a mistake to assume that the memo would – or could – provide anything close to full clarity. The memo was written in response to a question about a specific case, and thus appropriately limited itself to that question. In other words, as should be expected, the memo addresses the lawfulness of the proposed targeting of al Aulaqi himself and says nothing about the outer bounds of the President’s asserted authority to target U.S. citizens (let alone non-citizens), other than to imply that such targeting must be consistent with international humanitarian law. Moreover, even in the context of the memo itself, factual predicates on which the memo is based appear to be redacted, making it difficult to know how OLC has reached the relevant conclusions in this case. Put all that together, and key issues remain unsettled:

(i) What Constitutes a “Continued and Imminent” Threat? The finding that al Aulaqi poses a “continued and imminent” threat appears to be based upon an executive branch determination that he “has been involved, through his operational and leadership roles within AQAP, in an abortive attack within the United States and continues to plot attacks intended to kill Americans from his base of operations in Yemen.”Among the many unanswered questions: How is that determination made? How much evidence is needed? What is the quantum of proof?

As a substantive matter, how far along does the plotting need to be to trigger such a finding of continuing and imminent threat? Is it enough to just conceive of an attack or does there need to be evidence that at least some steps have been taken to carry it out? Does the time horizon for any such attack matter? On these key points, the un-redacted portion of the memo only scratches the surface—and thereby provides virtually zero guidance for how these standards would apply to cases other than al Aulaqi.

(ii) Feasibilty of Capture? As already stated, the memo also relies on an executive branch determination that capture is infeasible, strongly suggesting (although not directly stating) that the killing would violate the Fourth amendment if capture was feasible. Again, this raises a series of yet unanswered questions: How is feasibility defined?  How much risk should we (our special forces) be expected to incur to make a capture feasible?  Is a host nation’s lack of consent to a capture operation a sufficient basis for a finding of infeasibility, even if the executive would have carried out a capture operation if consent were freely given?

Moreover (and apropos of Steve’s and others’ discussions) how can the feasibility determination be made in advance, without an analysis of the specific situation in which the target was attacked?  Was there an assumption that capture was infeasible so long as al Aulaqi was in Yemen?  Would the analysis change depending on where he is found in Yemen — or elsewhere?

(iii) The Outer Limits?  As already stated, the memo is carefully, and appropriately, confined to the facts of the case, and does not articulate the “minimum conditions” under which its analysis applies.   We still don’t know how far this reasoning would stretch, how grave the threat need be, and how much evidence is needed before a U.S. citizen (not to mention a non-citizen) could be lethally targeted. The memo’s release only underscores how much more we need to know about topics that OLC simply wasn’t — and shoudn’t have been — tasked with addressing.

#2: Which Groups Qualify as an “Associated Force”?

The memo provides yet another reminder of the need for clarity and transparency as to what groups qualify as “associated force” of al Qaeda. The memo states that al Aulaqi could be lawfully targeted either because his leadership role in al Qaeda in the Arabian Peninsula makes him “part of” or because he is the leader of an “associated force” or al Qaeda. The operative language is here:

[A] decision-maker could reasonably conclude that this leader of AQAP forces is part of al-Qaida forces. Alternatively. . . the AUMF applies with respect to forces “associated with” al-Qaida that are engaged in hostilities against the U. S. or its coalition partners, and a decision-maker could reasonably conclude that the AQAP forces of which al-Aulaqi is a leader are “associated with” al Qaida forces for purposes of the AUMF. On either view, DoD would carry out its contemplated operation against a leader of an organization that is within the scope of the AUMF, and therefore DoD would in that respect be operating in accord with a grant of statutory authority.

This is not new. But it is a reminder of just how much the “associated force” determination matters. According to the memo’s reasoning, a U.S. citizen-leader of such forces can be lawfully targeted wherever located, assuming capture is not feasible and the host country is unable or unwilling to address the theat. While there still needs to be a finding of “continued and imminent” threat, at least some language in the memo suggests that being a leader of a group that poses a “continued and imminent” threat – a standard that presumably covers any “associated force” – is enough. (See, e.g., page 21 – emphasizing that “that al-Aulaqi is a leader of AQAP whose activities in Yemen pose a “continued and imminent threat” of violence to United States persons and interests.”) In that regard, whether or not specific groups qualify as “associated forces” would matter quite a lot.  At least as of a month ago, testimony by CIA General Counsel Stephen Preston suggested that AQAP is the only group that currently qualifies as an associated force, but also made clear that this determination may change – and transparency on this front is critical.

#3: Whither Human Rights Law?

It’s also worth noting how the memo simply assumes, with little analysis, that the rules of international armed conflict – rather than international human rights law – apply by analogy to non-international armed conflict, and thereby provide (along with customary international humanitarian law) the relevant rules of conduct.  This is not the view held by many Europeans (particularly European academics), who continue to argue that human rights law, not the law of armed conflict, should fill in any gaps in the law.  (Having spent the last month in The Hague, I am increasingly struck by how divergent the U.S. and European background assumptions often are on this issue.)

To be clear, the U.S. view on this point is neither surprising nor new – and it’s one that I ultimately agree with.  But in a memo as thorough as this, it is notable that OLC leaves its discussion of human rights law to a footnote — effectively asserting that the result would be the same whether international human rights law applied or not.   Perhaps these standards merge, as the footnote suggests.  But perhaps not.  And it at least seems worthy of more extended analysis.

To sum up, the release of the memo is definitely a step forward. It is carefully reasoned and much more thorough than any analysis provided to date. But key questions remain.

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About the Author

is a professor at American University Washington College of Law. You can follow her on Twitter (@jendaskal).