A 2009 US Air Force photo titled "ready to hunt" shows an armed American MQ-9 Reaper drone taxiing in Kandahar, Afghanistan.

A 2009 US Air Force photo titled “Ready to hunt” shows an armed MQ-9 Reaper drone taxiing in Kandahar, Afghanistan. 

Almost two weeks ago, we learned from the Washington Post that in 2014, in Pakistan, the United States captured a Texas-born man suspected of having joined al-Qaeda. The man — Mohanad Mahmoud al-Farekh, a US citizen — has now been arraigned in federal court in Brooklyn and charged with providing material support to terrorism.

Yesterday, expanding on the Post’s report, the New York Times detailed the government’s apparently years-long internal debate about whether it could lawfully use lethal force to target al-Farekh. The Times reports that while the “Pentagon nominated Mr. Farekh to be placed on a so-called kill list for terrorism suspects” and “C.I.A. officials also pushed for the White House to authorize his killing,” objections from within the Justice Department stalled an affirmative decision on targeting until his capture last year. DOJ’s objections apparently centered on whether al-Farekh “posed an imminent threat to the United States and whether he was as significant a player in Al Qaeda as the Pentagon and the C.I.A. described.”

The Times’s report, and the forthcoming criminal prosecution of al-Farkeh, are sure to revive the domestic debate about the targeting of US citizens (and others) with lethal force abroad. They should also prompt us to reevaluate past debates about targeted killing — including the government’s targeted killing of US citizen Anwar al-Awlaki, in 2011 — in light of the government’s ultimate decision not to attempt to kill al-Farekh.

I write to make several brief points on this new development.

First, the successful capture of al-Farekh in Pakistan indicates (yet again) that the capture of suspected terrorists is more feasible than many both inside and outside the government assume. The 2010 Office of Legal Counsel memorandum that authorized the targeted killing of al-Awlaki did so in part because both DOD and the CIA affirmed that a capture operation would have been “infeasible at th[at] time.” President Obama’s 2013 Presidential Policy Guidance also explains that the “policy of the United States is not to use lethal force when it is feasible to capture a terrorist suspect.” Yet little is known about how the government evaluates this constraint — including whether the government believes that it must wait a reasonable period of time before killing in order to see whether capture becomes more feasible. In al-Farekh’s case, after apparent pushback from DOJ stretched out the internal government debate over killing him, the Pakistanis managed to capture and detain him — demonstrating that even when capture might appear to be “infeasible” to some at a particular point in time, circumstances change, often dramatically. All of this demands much more information from the government concerning how its “feasibility” determinations are made. And the government should publicly explain the factors that distinguished between the feasibility of capture of al-Awlaki in Yemen and of al-Farekh in Pakistan — and why DOJ’s demand for “more information” in the latter case never materialized in the former. 

Second, and related, the Times’s report calls attention to an element of the targeted-killing program that we still know next to nothing about: the evidentiary standards the government uses when internally debating targeted killings. As I have been on about for some time, the public portions of the 2010 OLC memorandum omit any discussion of how satisfied the government must be before deciding to engage in the targeted killing of a U.S. citizen. (Nor do we know the evidentiary standards the government believes it must meet to target foreign citizens.) The standard the government uses is of extraordinary importance, especially in light of Attorney General Eric Holder’s infamous assertion that “‘[d]ue process” and ‘judicial process’ are not one and the same, particularly when it comes to national security.” If the executive branch believes it can substitute its own process for that of tried-and-true courtroom process when it comes to satisfying the constitutional rights of American citizens, the internal evidentiary standards it employs to make decisions about life and death are of paramount consequence.

In particular, evidentiary standards are critical to understanding how the government applies two of its acknowledged legal requirements on the targeted killing of Americans: whether an individual presents an “imminent threat” to the United States, and whether the individual is a “senior operational leader of al-Qa’ida or an associated force.” We know that, in the abstract, the government has drained the legal meaning of “imminence” so that it “does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” But we know little about how it actually applies that “elongated” definition. The “senior operational leader” requirement is even more opaque in public documents.

The Times explains that internal disagreements about the proper evidentiary standards to employ as to both the “imminence” and “seniority” questions are what held up the killing of al-Farekh: “[T]he Justice Department, particularly Attorney General Eric H. Holder Jr., was skeptical of the intelligence dossier on Mr. Farekh, questioning whether he posed an imminent threat to the United States and whether he was as significant a player in Al Qaeda as the Pentagon and the C.I.A. described.” Later, the Times explains that al-Farekh’s “level in the Qaeda hierarchy remains a matter of some dispute,” and that some officials believed that the “criminal complaint against him underplayed his significance inside the terrorist group” because it was “based only on what federal prosecutors believed they could prove during a trial.”

The clear takeaway, then, is that DOD and the CIA are willing to push to kill an American citizen based on information so unreliable (or perhaps so tainted by violations of al-Farekh’s constitutional rights) that it could not be put into a criminal complaint.

We seldom see such a direct manifestation of the value of putting the government to the test of its evidence, and if there is any context in which a robust process for evaluating such evidence should play a dominant role, targeted killing is it. If the Times is right that it was the Department of Justice that asserted a high evidentiary bar in al-Farekh’s case, DOJ should be applauded — and Holder should reconsider whether his belief in the parity of executive process and judicial process (even ex post judicial process, which his department has strongly opposed) in this context is warranted in light of coordinate agencies’ zeal to engage in targeted killings based on questionable information.

Third, the al-Farekh case further demonstrates why congressional oversight over targeted killing is no substitute for independent judicial accountability. The Washington Post reported that the “decision not to authorize [al-Farekh’s] killing frustrated members of Congress who thought the administration was dithering.” The Times story explains that “lawmakers grilled military and intelligence officials about why Mr. Farekh had not been killed,” and it quotes former House Intelligence chairman Mike Rogers disapproving of DOJ’s pause on the targeted-killing operation by saying “We’ve never seen a bigger mess.” (To be sure, Rogers has seen his share of messes: In 2013, he officially acknowledged the CIA’s involvement in the government’s targeted-killing program by affirming that he “review[s] every single air strike we use in the war on terror,” including through monthly meetings at the CIA.) If the most powerful individuals tasked with overseeing the executive branch’s lethal-force decisions are actively pushing for more aggressive tactics, rather than acting as a restraint, the need for an independent judicial assessment of the legality of the government’s killing program becomes even more imperative.

Fourth, the al-Farekh case makes plain that the legal battles that have been — and continue to be — waged by the American Civil Liberties Union, the Center for Constitutional Rights, and others over the government’s targeted-killing policies have had a salutary effect on the process and outcomes of the lethal-force program. (Disclosure: While a legal fellow at the ACLU, I participated in many of those efforts.) Discussing the potential targeted killing of al-Farekh, the Times quotes a former senior official as saying, “Because he was an American citizen, we needed more information. . . . Post-Awlaki, there was a lot of nervousness about this.” Given the government’s unwavering defense of the killing of al-Awlaki as both lawful and justified, this “nervousness” seems to be a clear signal that the efforts of outside groups — for example, to litigate over greater access to the government’s legal and factual information surrounding targeted killing and over the substantive constitutional rights of American citizens killed by American drones — remain crucial to ensuring that the government takes seriously the legal constraints on its authority to use lethal force.

Last, in light of Jameel Jaffer’s post from last week about DOJ’s preposterous footnote concerning official government secrecy over already-public information about the targeted-killing program, I cannot help but comment on a similar footnote in the government’s criminal complaint filed in January 2015 (and recently unsealed) against al-Farekh. There, the government describes al-Awlaki, whose online lectures allegedly inspired al-Farekh to join al-Qaeda, and concludes by stating that al-Awlaki “was reportedly killed in Yemen on September 30, 2011.” Given that in May 2013, the government officially confirmed that it had targeted and killed al-Awlaki in a drone strike, DOJ’s use — two years later — of passive voice to describe his killing is yet another example of how deeply secrecy has become pathology in the United States government.