The Obama administration memo on targeted killing has drawn an enormous amount of commentary, much of it hostile. To my mind, a lot of the criticism is overblown because it doesn’t give enough consideration to the fact that the memo’s rationale for targeted killing is strictly limited to American citizens who are “senior operational leader[s] of al-Qa’ida or an associated force.” On the other hand, there is a very troubling issue that the memo does not address: Who decides whether a potential target qualifies as a senior operational terrorist leader, and how much evidence does he need to have?
I. Al Qaeda Leaders Are Legitimate Targets.
Many critics, such as Gerard Magliocca and Conor Friedersdorf focus on the weaknesses of the memo’s three additional requirements for a targeted killing of a US citizen: that “(1) an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the United States, (2) capture is infeasible and the United States continues to monitor whether capture becomes feasible, and (3) the operation would be conducted in a manner consistent with applicable law of war principles.” Gerard, for example, argues that “[t]he White Paper says that a citizen is eligible for death-by-drone when ‘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.’ In my opinion, this threshold is too low.” But the “imminent threat” test applies only to people located outside the United States who are “senior operational leaders of al-Qa’ida or an associated force,” not to just anyone who “an informed...official” believes to be a threat. In other words, the requirements that the target pose an “imminent threat” and cannot be captured are in addition to the requirement that he be a senior leader of Al Qaeda or one of its “associated forces.”
Once this key point is recognized, many of the objections to the memo are weakened. In wartime, the individualized targeting of an enemy commander is surely both legal and moral. And the US is presently at war with Al Qaeda and its allies. If it is permissible to individually target a uniformed enemy officer, such as Japanese Admiral Yamamoto in World War II, it is surely permissible to do the same to the leader of a terrorist organization. Indeed, it would be perverse if terrorist leaders enjoyed greater protection against targeting than uniformed military officers. Unlike the latter, terrorists don’t even pretend to obey the laws of war and they deliberately endanger civilians by choosing not to wear distinctive uniforms.
This analysis does not change if the targeting enemy leader happens to be a US citizen. Surely the targeting of Admiral Yamamoto would not have become illegal or immoral if he had acquired US citizenship while living in the United States during the 1920s. Similarly, it was surely permissible to target Yamamoto even if the US did not have any proof that he was planning “imminent” military operations against US forces. The fact that he was a top enemy commander in an ongoing war is enough. Similarly, it would make no difference if Yamamoto or other Axis leaders were operating from the territory of an officially neutral nation that supported them or was unable to stop them. They would still be legitimate targets there.
Finally, it is important to remember that banning or severely limiting targeted killing won’t necessarily reduce civilian casualties and could easily increase them. Conventional military operations aimed at larger groups of enemy combatants are more likely to result in the death of innocent bystanders than targeted killings which apply smaller and more precise levels of force. If targeted killing is banned or severely constrained, officials will rely more heavily on conventional operations, thereby likely increasing civilian casualties.
II. Who Determines Whether You are a Senior Al Qaeda Leader and How Much Evidence do they Need to do it?
So far so good for the Obama administration. Unfortunately, however, identifying Al Qaeda leaders is a far more difficult task than identifying enemy officers in a conventional war. Precisely because terrorists don’t wear uniforms and often don’t have a clear command structure, it’s easy to make mistakes. And where US citizens are involved, there is the danger that the government will target someone merely because that person is a political enemy of the current administration. Even if officials are acting entirely in good faith, there’s still a serious risk that innocent people will be targeted in error. The Obama memo doesn’t even consider the question of how we decide whether a potential target really is a terrorist leader or not. But that is in fact the key issue.
The problem is not an easy one. On the one hand, war cannot wait on elaborate judicial processes. And we cannot give a potential target an opportunity to contest his designation in court without tipping him off. On the other hand, it is dangerous to give the president and his subordinates unconstrained power to designate American citizens as “terrorist leaders” and then target them at will.
One possible solution is requiring officials to get advance authorization for targeting a US citizen from a specialized court, similar to the FISA Court, which authorizes intelligence surveillance warrants for spying on suspected foreign agents in the United States. The specialized court could act faster than ordinary courts do, and without warning the potential target, yet still serve as a check on unilateral executive power. In the present conflict, there are actually very few high-ranking terrorist leaders who are US citizens. Given that reality, we might even be able to have more extensive judicial process than exists under FISA. Alternatively, one can envision some kind of more extensive due process within the executive branch itself. But any internal executive process has the flaw that it could always be overriden by the president, and possibly other high-ranking executive branch officials.
Whether the decision is made with or without judicial oversight, there is an important question of burden of proof. How much evidence is enough to justify classifying you as a senior Al Qaeda leader? The administration memo doesn’t address that question either.
I honestly don’t know what the optimal institutional structure here would be. But we should aim for one that provides a check on executive discretion without miring the process in prolonged litigation that makes it impossible to conduct operations in “real time.”
Like Gerard Magliocca and Jack Goldsmith, I hope Congress enacts a framework statute regulating the use of targeted killing, including appropriate procedural safeguards. But I am skeptical that Congress will actually do that anytime soon. Most of the general public is either ignoring the issue or actually happy with the status quo. And there are few if any powerful interest groups lobbying for change either. Congress is unlikely to wade into this swamp just to satisfy law professors and civil libertarians. Unfortunately, it may take a highly visible disaster – such as the deliberate targeting of an obviously innocent person – to get Congress to act.