NBC has obtained and released a copy of an Obama Administration Department of Justice memo which provides legal justification for the targeted killing program which the executive has been conducting. (HT Orin Kerr)
Pages 6-9 of the memo describe a 3-part test that they believe would ensure that the killing of a US citizen would be legal. The memo makes it clear that the legal authority to kill US citizens is not limited to that particular situation. The test is in the bottom paragraph of page 6. I am reproducing the relevant passage here:
(1) where an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) where a capture operation would be infeasible-and where those conducting the operation continue to monitor whether capture becomes feasible; and (3) where such an operation would be conducted consistent with applicable law of war principles.
Apart from the part where a member of the executive makes the call, this actually seems pretty reasonable. This is actually the test outlined by Eric Holder in his speech on drone strikes last year. But they have a very novel understanding of the word “imminent”. Page 7 paragraph 1:
First, the condition that a operational leader present an “imminent” threat of violent attack against the United States 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.
This is not what the word “imminent” usually means. This is most likely not what most of us who read Attorney Holder’s speech on drone strikes understood when he spoke of “imminent threat” or “imminent threat of violent attack” 5 times. The memo later provides an example on page 8 paragraph 2 of what would be an imminent threat:
… 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 a operational leader of al-Qa’ida or an associated force and is personally and continually involved in planning terrorist attacks against the United States.
The memo goes provides two arguments as to why they must use such an extra-super-double-broad definition of “imminent” as opposed to the more accepted one. Roughly, they argue that
1) it can be very difficult to effectively respond to a terrorist threat by the time it is imminent. Page 7, paragraph 2, they use the example of the September 11th attack:
requir[ing] the United States to refrain from action until preparations for an attack are concluded, would not allow the United States sufficient time to defend itself.
This may be true, but this memo only refers to targeted killings. If the United States was aware of the September 11th attack ahead of time, there would have been a whole host of possible responses more effective than attempting to kill the leaders of the operation.
2) it’s really hard to find imminent threats. Again, page 7, paragraph 2:
It is very difficult to know when or where the next incident will occur.
That may very well be so, but this does not generally justify lowering the bar. Could you imagine a prosecutor going before a court and arguing that because the crime they are prosecuting is very hard to prove beyond any reasonable doubt, they should only have to convince the jury that it is only more likely than not, that the defendant was guilty? Of course not.
I have no doubt that many will continue to see such strikes as justified, but one has to admit that being “continually involved in planning” isn’t exactly the “imminent threat” some tried to sell us on. I may post further comments depending upon the time I have available to finish reading the memo and to write my thoughts on the matter.
I am hoping that the memo goes into details on the standard of proof that is expected to be met. So far, only the second sentence of paragraph 2, page 7 gives any indication and it seems to imply that “clear evidence” is already too high a bar to meet. Hopefully, that is not the case. [Update: They don’t say anything more on that topic.]