John Brennan, President Obama's nominee for Director of the CIA, has the bad luck of having to testify before Congress on Thursday, just days after publication of a Justice Department "white paper" containing the administration's legal justification for the targeted killing of high-level Al Qaeda members who are also American citizens.
The undated and unsigned white paper, provided to selected members of Congress (who, presumably, are also leading suspects for the leaking of the document to NBC), appears to be an unclassified version of a Justice Department legal memo on the "lethal targeting" of Anwar al-Awlaki, a radical Muslim cleric and U.S. citizen (born in New Mexico) who was killed in a 2011 drone strike in Yemen. That memo is the subject of ongoing FOIA lawsuits filed by the New York Times, ACLU and by my organization, the First Amendment Coalition.
The white paper argues, in brief, that the U.S. government may lawfully kill an American citizen if "an informed, high-level official" of the government decides that the target is a ranking figure in Al Qaeda who poses "an imminent threat of violent attack against the United States;" that his capture is not feasible; and that the killing can be done in a way that minimizes harm to civilians.
Such an attack is permissible under U.S. and international law, the memo contends, even in a country removed from the battlefields of Iraq and Afghanistan, provided the country gives consent or fails to neutralize the terrorist threat to American interests. The white paper also argues that the executive branch has no legal obligation to obtain advance approval for a targeted killing from the courts or Congress.
Brennan will be in the hot seat before his interlocutors on the Senate Intelligence Committee. Here are some questions that I would love to hear him, on behalf of the administration, try to answer.
- The extraordinary legal authority claimed by the U.S. government -- to kill an American on the say-so of a "high-level official" -- has been used in Yemen, Somalia, Afghanistan and Pakistan, according to reports. What, in principle, would prevent the exercise of this authority against a suspected terrorist located inside the U.S.?
- At the moment the U.S. has a monopoly on missile-firing drones, the weapon of choice for targeted killings of high-level members of Al Qaeda. The rules for use of this weapon, as articulated in the DOJ white paper, give the U.S. enormous latitude, precluding oversight by American institutions, much less international bodies (the United Nations, for example). When other countries, such as Russia or China, develop their own drone weapons for targeted killings, how will the U.S. respond to their claims of unilateral authority and freedom-of-action on a par with ours?
- The administration opposes any changes in the rules that would require prior judicial approval of the targeted killing of terrorists. Existing law, however, already requires the government to obtain a judicial warrant (albeit in a secret proceeding) to eavesdrop on the phone conversations and email messages of terrorists abroad who are communicating with Americans. If judicial oversight is required to listen in on a terrorist's communications, how can it be unreasonable to require judicial oversight of the decision to kill him?
- Even when the rules described in the DOJ memo are strictly followed and a terrorist target is selected for killing, officials still must decide that the person they have in their sites is, in fact, the specific person (American citizen or not) whom they intend to kill. How confident do they have to be of the target-identification? More confident than the CIA in its 2003 assessment that Saddam Hussein controlled a stockpile of weapons of mass destruction?
- There is little doubt the use of drone strikes against Al Qaeda leaders has been effective in weakening that organization and its capacity to launch major strikes against Americans. But critics argue that drone strikes, by fanning anti-Americanism, have been equally effective at converting Islamic youth into radicals bent on jihad against the US. How does the administration know that its targeted killings and use of armed drones have not merely exchanged one terrorist threat for another that will be bigger, longer-lasting, and more dangerous?
- While the administration opposes judicial oversight of targeted killings, it offers no alternative mechanism for ensuring compliance with the rules spelled out in the white paper. Surely, the executive's exercise of the targeted killing authority, especially when the target is a US citizen, must be subject to some sort of institutional check. Why not agree, at the very least, to a procedure for after-the-fact review -- for example, before specialized federal judges who would examine targeted killings after they have occurred?
And for balance -- and because these issues are far from straightforward -- here's a question for those who would forbid targeted killing in cases involving U.S. citizens:
- If a U.S, citizen joins Al Qaeda and engages in the operational planning of attacks to kill Americans in large numbers, is that person immune, purely because of his citizenship, to U.S. military action to preempt the attacks? If no, what is the difference, legally or morally, between a drone strike that singles out the U.S. citizen, on one hand, and an attack by U.S. aircraft against a terrorist training camp that kills a dozen Al Quaeda members, including the U.S. citizen, on the other? If the latter is permissible, why not the former?
Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition, a nonprofit organization. FAC has sued the U.S. Justice Department under FOIA for access to the secret government memo concerning the killing of al-Awlaki.