On Monday, NBC obtained an unsigned Justice Department white paper outlining the Obama administration’s legal position on circumstances under which the United States could lawfully kill a U.S. citizen in a counter-terror operation. Unfortunately, the 16-page document is not the full OLC memo that has been requested by several members of Congress, but an abbreviated version of it that was provided last summer to members of the Senate Intelligence and Judiciary committees.
The white paper expressly limits its scope to those citizens who are a senior al-Qaeda member or an “associated force” in a foreign country, outside an area of active hostilities. In brief, it asserts it would be legal to use lethal force against a U.S. citizen in such cases if three conditions are met:
1) an informed, high-level government official has determined that the targeted individual poses an imminent threat to the U.S.;
2) capture is infeasible; and
3) the operation complied with applicable laws of war.
The while this white paper is as yet the most detailed public account of the Obama administration’s legal justification for the targeted killing of Americans, it is unfortunately short on details of the decision-making process. As pointed out by Steve Vladeck at Lawfare, most Americans understand that there may be occasions in which U.S. citizens who engage in terrorist activities must be targeted in the same way that foreign terrorists are. What matters is the process for coming to that decision. We have due process protections because we are concerned no only about government overreach, but also to adequately protect us from erroneous determinations and unnecessary reliance on force. This helps ensure that, for example, they really are an active member of al Qaeda, that they cannot they be arrested, and that we cannot simply wait until capture is feasible.
The criteria listed above clearly attempt to ensure that these issues are addressed, but this is not nearly enough. A constitutional lawyer like President Obama should not need reminding that unchecked executive power is very dangerous to liberty. And there is nothing in this white paper to suggest that any outside check or review has been placed on the Executive’s ability to conduct these lethal operations against its own citizens.
In fact, it suggests that judicial review is inappropriate. Its reasoning for this is that it would require ex ante review of targeting decisions, which are inherently predictive and not amenable to judicial determination. This would be quite astute, were it true. However, most critics who have called for judicial involvement in targeted killing decisions, myself included, have clearly stipulated that the courts review the governments actions ex post, and at least partly ex parte.
Additionally, as Steve points out, the white paper’s suggestion that targeted killing decisions are non-justiciable political questions is absurd. These determinations are in many ways no different than those made in law enforcement situations, as when a sniper shoots a hostage-taker. Such cases are often reviewed (ex post) by the courts. Even in those ways in which they are different, the courts have already been involved, as with the spate of recent habeas litigation.
It is because of these issues that the white paper does nothing to satisfy the concerns over executive power. Many have claimed that this document displays the Obama administration’s backslid into something resembling the “Bush Doctrine.” But rather than the nitpicking over the legal conclusions of the white paper as many analysts have (Mary Ellen O’Connell is still ranting about “zones” of conflict—see my analysis), it is this refusal to allow any review of the decision-making process that raises the most severe concerns over President Obama’s targeted killing program.
Paul Taylor, Senior Research Fellow
Center for Policy & Research