Lethal Targeting of US Citizens: AP Report Raises More Questions Than Answers

In a highly provocative piece this morning, Kimberly Dozier writes that the Obama administration is weighing another drone strike against a U.S. citizen.  That is obviously a big deal.  But while the news is noteworthy, some of the reported details are questionable – providing an important reminder of the need for much greater transparency and clarity as to the standards and procedures employed before the executive deliberately kills one of its own citizens.

Among the noteworthy (and questionable) details:

(1)  The target is described “as an al-Qaida facilitator who has been directly responsible for deadly attacks against U.S. citizens overseas and who continues to plan attacks against them that would use improvised explosive devices.”

While the story does not reveal his location, this certainly sounds as if he is operating in Pakistan, using a base there to launch attacks against U.S. personnel in Afghanistan.  Where else, after all,  have U.S. citizens been subject to deadly attacks?   That said, he could of course be a facilitator operating from afar.

(2)  “President Barack Obama’s new policy says American suspected terrorists overseas can only be killed by the military, not the CIA, creating a policy conundrum for the White House.”

This is news.  There have been a number of reports that the President was transferring control of the drone program from the CIA to the Department of Defense, but the details have not yet been revealed.   Meanwhile, reports suggest that Congress blocked such efforts through appropriations restrictions in a classified annex to the recently passed budget plan.   Perhaps these restrictions have not gone into effect. Perhaps they do not cover the targeting of U.S. citizens.  Or perhaps the Administration is simply ignoring them.

Moreover, even if true, it is not clear why this fact – as opposed to whole host of others – would create a policy conundrum for the White House.  As described below, there is no obvious reason why the Pentagon couldn’t simply carry out the strike, unless of course logistical barriers prevented them from doing so.

 (3)  “By law, the Pentagon can only strike in war zones, in countries that agree to U.S. counterterrorism action or in lawless areas like parts of Somalia where that government’s security forces cannot reach.”

 Here, Dozier seems to be expanding on the prior point and contrasting the authorities of the CIA – which she implies would be relatively limitless, assuming they were permitted to strike – with that of DOD – which she suggests are much more restricted.  Again, it’s not clear what “law” she is referring to, or where those limits comes from.  After all, it has been the longstanding position of the United States that it can lawfully attack enemy forces (including members of al Qaeda and associated forces) in situations where the host nation is “unable or unwilling” to take steps to mitigate the threat, regardless of the host country’s threat.  From the facts presented in this article, this seems like a situation that falls within the framework of the “unable or unwilling” test: “[f]our U.S. officials said the American suspected terrorist is in a country that refuses U.S. military action on its soil and that has proved unable to go after him.”   If correct, then the strike would – at least on the U.S. view – be lawful whether carried out by the Pentagon or CIA.  In other words, the lawfulness of the strike has nothing to do with the entity that is carrying it out.

To be sure, the validity of the “unable or unwilling” test is hardly settled; my point is not to take sides, but simply to point out that the lawfulness of the action does not depend on the actor, but on what one thinks about the underlying legal test, as well as its application to the facts in this case.

(4) “The target must also pose ‘a continuing, imminent threat to U.S. persons’ — the legal definition of catching someone in the act of plotting a lethal attack.”

If only that were in fact the standard applied.  But we know from the leaked White Paper justifying the killing of Anwar al-Aulaq that this is not the case:

[T]he threat posed by al-Qa’ida and its associated forces demands a broader concept of imminence in judging when a person 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. . . . With this understanding, a high-level official could conclude, for example, that an individual poses an ‘imminent threat’ of violent attack against the United States where he is an operational leader of al-Qa’ida or an associated force and is personally and 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 of abandoned such activities, that member’s involvement in al-Qa’ida’s continuing terrorist campaign against the United States would support the conclsion that the member poses an imminent threat.

There is an active, ongoing debate about whether this is the right standard to be employed. But one thing is clear: it is a far cry from demanding that the target be caught in the act of plotting a lethal attack.

(5) “The CIA drones watching him cannot strike because he’s a U.S. citizen and the Justice Department must build a case against him, a task it hasn’t completed.”

It’s not at all clear what Dozier means by this.  If by “case” she means an Office of Legal Counsel opinion or Attorney General clearance, that makes sense.  But if “case” is used to mean a criminal complaint, that would be quite odd.  The target is described as “a member of al-Qaida [who] is actively planning attacks against American overseas.”  The article further states that the “administration has ruled him an enemy combatant under the Authorization for Use of Military Force.”  If true, he  qualifies as a lawful target, at least according to the Administration’s interpretation of what the 2001 Authorization for the Use of Force allows, regardless of whether there is a criminal case brought against him.

Nor is it clear why having a case (in the criminal sense) would somehow make the killing more palatable, as the article later suggests.  To the contrary, wouldn’t it suggest the importance of doing everything in the government’s power to capture him and bring him to justice—and the potential availability of less-restrictive alternatives?

My guess is that it is just a poor choice of words.  And that the “case” she is referring to is an official Justice opinion as to whether or not, and in what circumstances, such a strike would be lawful.

 All of this serves an important reminder for the need for clarity and transparency. We are talking about the executive making a unilateral decision to take an American citizen’s life – and yet we are still unsure of the most basic background information – the standards and procedures employed to make such a monumental decision.

 

 

  

About the Author(s)

Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).