The leaked White Paper on the targeted killing of American citizens tells us many things we already knew about the Obama Justice Department. Though some headlines have referred to this as a brief, it is nothing of the sort: it is a talking points memo assuring that the Justice Department message on assassination remains consistent. It displays no evidence of serious legal thought. It does, however, conveniently assemble in a single document the deeply troubling remarks on this subject made in recent years by Eric Holder, John Brennan, and Harold Koh.
When Holder deigned to tell us a thing or two about when our fellow citizens may be executed without trial, it was in a March 2012 speech at Northwestern University. In that speech Holder informed us that the "due process" rights secured by the Constitution did not have to involve the courts at all: "due process" could mean the closed-door deliberations of Administration officials. Who knew? The White Paper similarly tells us that a targeted killing can be ordered by an "informed, high-level official of the U.S. government [who] has determined that the targeted individual poses an imminent threat of violent attack."
"Imminent threat" also gets massaged in the leaked document. As Brennan had previously declared, the term must be read in more relaxed fashion in the age of terror. If, in the language of the White Paper, a terrorist organization is "continually plotting against the United States," then its leaders pose an imminent threat and may be targeted, even if they are outside of an area of "active hostilities." And as Harold Koh previously emphasized, the White Paper seeks to assure us that targeted killing does not violate the four core principals of the laws of war, distinction, proportionality, military necessity, and humanity. But that reading would require us to see Al-Qaeda leaders as combatants. As we shall see, that is not a view universally held in international law.
So in substance and approach the memo simply confirms what has been said before: without any oversight whatsoever from the courts, the Administration can decide that a U.S. citizen is a leader of Al Qaeda or similar terrorist group who can be targeted for killing. Based on the evidence of the Anwar al-Awlaki killing, apparently the Administration can also decide that acceptable collateral damage includes a U.S. citizen standing next to a high-value target, even if that citizen has supported Al Qaeda only through the publication of a splashy magazine.
Well, you may say, what's the alternative? In fact there is an alternative that a careful legal brief would have noted: the Supreme Court of Israel's 2005 decision in Public Committee Against Torture in Israel [PCATI] v. Government of Israel (HCJ 769/02). Citing the European Court of Human Rights decision in McCann v. United Kingdom (21 ECHR 97 GC), the Israeli court concludes that while a targeted killing is a military matter in its planning and execution, the courts must be free to conduct post-operational judicial review. This would shed light on the internal deliberations leading up to the targeted killing, assuring sound evidentiary procedures and the absence of a reasonable alternative to the killing. While that remains a form of due process that is less than ideal for the defendant, who is dead when his day in court arrives, it at least exposes military and governmental decision-makers to judicial scrutiny.
Along the way, the court also concludes that terrorists are not combatants but civilians participating in hostilities. Under the laws of war that is a big difference: combatants do not lose their status and can be targeted at any time during a conflict; civilians participating in hostilities can only be targeted when they are actively participating in conflict. The precedent thus places the White Paper more at odds with the laws of war than it is willing to concede. And PCATI v. Israel is hardly an obscure precedent: it is a case cited in every legal textbook covering the topic of targeted killings.
In light of PCATI v. Israel and the US Supreme Court's defenses of due process in such "war on terror" decisions as Hamdi v. Rumsfeld (2004), it has been argued that the Administration is obliged to have an independent decision-maker review targeted killings by the CIA in areas that are not "hot" battlefields, and that in light of Boumediene v. Bush (2008) such a review would apply to citizens and non-citizens alike. This would be an absolute bare minimum assuring that "high-level" officials of the US government have some accountability when ordering killings. The leaked White Paper mentions Hamdi, but in slippery ways: it points to the decision's implication that under certain conditions a U.S. citizen captured on the battlefield in Afghanistan might be deprived of due process rights; it then claims that those conditions extend beyond "hot" battlefields like Afghanistan, and for an expansive view of the "imminent" threat that would trigger a suspension of due process rights.
Though we should not forget that extrajudicial killing is inherently a violation of human rights, the Israeli approach at least involves some judicial review. The approach pursued by the Obama Administration has none. This White Paper eschews serious legal thought in favor of partisan spin. What's more, we cannot shift blame for this: the policy is not a concession to Congressional Republicans, or a necessity of electioneering. This is Obama's baby. But Congress has served as midwife for this monstrous birth by allowing its sweeping post-9/11 Authorization for Use of Military Force to remain in effect. Until that statute is revisited, the executive branch will continue to find inventive and cavalier ways of exercising its war powers.