06 Mar Holder’s Speech
Much to say on Attorney General Eric Holder’s much anticipated speech yesterday on the U.S. Government’s approach to targeted killing. It should be said that it is good and right for the AG to make such a speech, and it should be welcomed for its effort. Combined with previous addresses in the past year+ by DOD General Counsel Jeh Johnson, Military Commissions Prosecutor Mark Martins, White House Counterterrorism Adviser John Brennan – it shows that the administration takes seriously the legal concerns about its counterterrorism programs and recognizes at least some imperative to talk about them publicly.
That said, Holder’s speech on first read seemed to me as rather a large anti-climax. It reads just like what I imagine it must have been – a vigorously fought, compromise text with 1000 authors and none in particular, a text that conflates various components of international (and possibly domestic) law, leaves all kinds of questions unanswered, and ultimately confuses more than it clarifies.
For now, maybe it’s just useful to start with what I’d put on my list of questions this speech leaves unanswered. Holder says (among other things):
“[A]n operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.”
So as a beginning, and in no particular order… Who in the U.S. government makes the determination? Does the group (I assume it’s a group) include Defense Department lawyers? CIA lawyers? Justice Department lawyers? State Department? Only some or some combination of these? In all instances or are there provisions for non-interagency team decision-making as well? Is the President invariably the final sign-off? Or do the DNI or Secretary of Defense or others have that authority as well? What kind of training do the relevant decision-makers have? Are they all or at least some expert in operational law? How many of the decision-makers are bound by professional ethical requirements as well (e.g. state bar codes of ethics)? Does the group of decision-makers depend on whether the use of force is being carried out pursuant to the AUMF (the 9/11-related authorization for the use of force) or under a self-defense or other statutory legal rationale (like the CIA’s general statutory authority)?
By what standard is the determination made – how much evidence is required and to what degree of certainty? How reliable need be the sources of information, is only one source or more required, or does it depend on the circumstances (as I imagine, and if so, what circumstances)? Are the “standards” by which the determination is made higher for Americans than for non-Americans? Does the “thorough and careful review” involve a set of quasi-independent assessments, or does each layer of review depend on/defer to the factual and/or legal findings of the initial decision-maker? What, other than the time-sensitivity of a threat, determines the “feasibility” of capture?
And then there are the questions about the law… Like how does the government interpret the principle of distinction (which Holder cites) as applying? The speech indicates (I take it) that non-citizen members of Al Qaeda and associated forces are targetable, as are (I imagine, the speech doesn’t use this language) those forces that directly participate in hostilities. How does it define direct participation? Which forces are included as associated with Al Qaeda and the Taliban under the 2001 authorization to use force against groups responsible for the 9/11 attacks? Al Qaeda in the Arabian Peninsula (which as I understand it was formed well after the attacks)? Al Shabab (which now seems to have formally affiliated itself with Al Qaeda)? Others? Is “imminence” in Holder’s view a legal requirement, or one the administration observes as a matter of prudence? Is it a requirement flowing from the U.S. Constitution (therefore applicable, as I take it in Holder’s view, only to Americans)? Or is it a requirement flowing from international law of self-defense (as the U.S. reads it), in which case it would apply in relevant circumstances to non-citizens as well?
There are of course more. But I sure would like to know what the best arguments are in favor of not just releasing the OLC memo that presumably answers a bit more than Holder was able to clarify.