The DoJ White Paper’s Confused Approach to Imminence (and Capture)

The DoJ White Paper’s Confused Approach to Imminence (and Capture)

According to the White Paper (p. 6), a US citizen “who is located outside the United States and is an operational leader continually planning attacks against US persons or interests” cannot lawfully be killed unless, inter alia, “an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of attack against the United States.” Early criticism of the White Paper has focused on how it defines imminence. The ACLU’s Jameel Jaffer, for example, says that it “redefines the word imminence in a way that deprives the word of its ordinary meaning.” That’s actually something of an understatement; as I’ll discuss in this post, the White Paper’s entire approach to the concept of imminence is deeply confused — and deeply problematic from the standpoint of international law.

The first thing to note is that it’s not clear why the White Paper even discusses imminence. As I noted in my previous post, the White Paper’s central premise is that all targeted killings of “senior operational leaders” in “al-Qa’ida or its associated forces” take place in the context of a global non-international armed conflict (NIAC) and are thus all subject to the laws of war (IHL). The White Paper also takes the position that the laws of war apply to a U.S. citizen in the same way that they apply to a non-citizen; it specifically argues (p. 3) that because “the military may constitutionally use force against a US citizen who is part of enemy forces,” the DoJ “does not believe that US citizenship would immunize a senior operational leader of al-Qa’ida or its associated forces from a use of force abroad.”

Although I reject the White Paper’s claim that the US is engaged in a global NIAC with “al-Qa’ida and its associated forces,” I have no problem with the idea that US citizenship does not affect the targetability of an individual who is otherwise a legitimate target under IHL. But why, then, discuss imminence at all? It is black-letter IHL that a legitimate target can be targeted at any time; it is not necessary to show that the target is an imminent threat, regardless of how imminence is defined. Given that the White Paper assumes both that all targeted killings of US citizens take place in armed conflict and that US citizenship does not affect targetability under IHL, it should consider whether a US citizen poses “an imminent threat of attack against the United States” — or against anything else — to be completely irrelevant.

So why does the White Paper graft an imminence requirement onto IHL?  There are two possible explanations. The cynical one is simply politics. The DoJ doesn’t really believe imminence is required before a US citizen who is a member of al-Qa’ida or an associated force can be lawfully targeted, but it is worried that the American public would reject the idea that an “enemy” US citizen can be killed abroad at any time. So it has decided to endorse an imminence requirement that — as discussed below — provides no meaningful constraints on the use of lethal force against a US citizen. A cynical move, to be sure. But a smart one.

The more generous explanation is that the DoJ believes that imminence is required by IHL’s presumption of civilian status. Article 57(2) of the First Additional Protocol provides that “[t]hose who plan or decide upon an attack shall… [d]o everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects,” while Article 50(1) provides that if it is still unclear whether an individual is a legitimate target after all feasible precautions are taken, “that person shall be considered to be a civilian” who is immune from attack. IHL is notoriously vague concerning the precise quantum of evidence necessary to determine that an individual is a member of an organized armed group, so perhaps the DoJ believes that a showing of imminence is the minimum necessary to establish that a target is a member of al-Qa’ida or an associated force — at least, or perhaps especially, when the target is a US citizen.

That explanation has a nice ring to it, but it is difficult to accept. To begin with, it would still contradict the White Paper’s claim that US citizenship is irrelevant to the application of IHL. Nothing in IHL suggests that the standard of proof for membership in an organized armed group differs for citizens and non-citizens; indeed, such a citizen/non-citizen distinction would contradict IHL’s basic targeting premise, which is that the only relevant distinction is between civilians and non-civilians.

The generous explanation of the imminence requirement also suffers from a more important flaw: it is completely inconsistent with the White Paper’s insistence (p. 6) that a US citizen can be targeted only when “a capture operation would infeasible.” First, the capture requirement does not help establish whether a US citizen is, in fact, a member of al-Qa’ida or an associated force. Second, the capture requirement has no basis in IHL: as Article 41(2)(b) of AP I makes clear, unless a lawful target “clearly expresses an intention to surrender” — such as by yelling surrender or by raising his hands or a white flag — IHL imposes no capture obligation whatsoever on an attacker. That is an unforgiving rule, permitting the use of lethal force against a target who is unarmed, defenseless, running away, or even asleep. But it is a rule nonetheless.

We are left, then, with the cynical explanation. The imminence requirement and the capture requirement both come from international human rights law (IHRL), not from IHL. The US, however, categorically rejects the idea that IHRL applies to any of its targeted killings; as noted above, it considers itself to be in a global NIAC with al-Qa’ida and its associated forces. There is thus no non-political (i.e., legal) reason for the US to condition the use of lethal force agains a US citizen on the threat of an imminent attack and the impossibility of capture.  The imminence requirement is all for show.

Finally, given that many scholars (including me) reject the US position that none of its targeted killings are subject to IHRL, it is worth noting that the US definition of imminence is significantly broader than the IHRL definition. I discuss that issue at length in my essay on signature strikes; see pp. 29-31. I will simply note here that at least one aspect of the US definition is clearly unacceptable from an IHRL perspective — namely, its acceptance of the idea that a “senior operational leader” in al-Qa’ida or an associated force can be considered an imminent threat even when there is no evidence that he is planning future attacks against the US. Here is what the White Paper says (p. 8):

[W]here the al-Qa’ida member in question has recently been involved in activities posing an imminent threat  of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qa’ida’s continuing terrorist campaign against the United States would support the conclusion that the member poses an imminent threat.

Even granting — as most scholars do — that IHRL’s imminence requirement is far from the picture of clarity, this standard is woefully overbroad. It not only relieves the US of the need to possess evidence that the “senior operational leader” in question intends to continue to attack the US, it actually shifts the burden of proof onto that individual to show that he is no longer a threat. (How he would actually do that is never addressed in the White Paper. Take an ad out in the New York Times?)  That is simply unacceptable from an IHRL perspective; as the Human Rights Committee has specifically noted, states must “not use ‘targeted killings’ as a deterrent or punishment.”

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[…] See Opino Juris for an assessment of this definition from an IHL and IHRL […]

John C. Dehn

I believe the imminence requirement is considered necessary to satisfy the Bill of Rights rather than any international legal obligation.  I also believe that it is unique to this context because, as the paper correctly recognizes, citizens who are part of an enemy armed force may be targeted on that basis alone when such targeting is consistent with IHL.

Jennifer
Jennifer

Maybe the “imminence” requirement is seen as flowing from the fact that the targeted killing is to take place in an area removed from hostilities, that is, necessary under the Caroline test to extend ongoing hostilities into a sovereign country not party to the conflict? Of course, that would not explain why it apparently only applies to U.S. citizens, nor why it’s necessary if the country gives its permission. Interesting that capture is not feasible if the country on whose territory it is to take place denies permission, which is then part of what justifies targeted killing with or without permission. 

Jordan
Jordan

Nonsense again! An “imminent threat” is not even a threat!  They mean imminent threat of armed attack?  What about a U.S. citizen who is a member of an enemy state’s armed forces during an international armed conflict? Recall that under HC IV, an armed combatant has to demonstrate the he/she will surrender.

Morris Davis
Morris Davis

The memo fails to acknowledge that there are kill programs … plural.  While there is clearly room to debate whether the memo is right or wrong about the military program passing constitutional and IHL muster, it totally ignores the CIA program and the laws that might limit the use of civilian employees and civilian contractors working for a civilian agency that lacks combatant immunity.  Also, it talks about host nation government consent satisfying international legal principles.  Assuming Yemen falls into that category, it is interesting that the government is competent to give the U.S. consent to kill people on its soil but incompetent to assume responsibility for its detainees held in U.S. custody at Guantanamo solely because of their Yemeni citizenship.  

Gidon Shaviv

I haven’t read the paper, but based on your two posts it would seem that the position taken is very similar to the Israeli Targeted Killings case – including the unnecessary infusion of IHRL into the story.

Michael W. Lewis

I agree with Kevin that the US views its capture and imminence requirements as self-imposed policy requirements rather than legal ones.  However I disagree that this is “just for show”.  Using that logic all ROE that is more restrictive than IHL is “just for show”.  ROE actually serves a very important function in tailoring force to the objectives sought.  Some of those restrictions may be based upon political calculation to maintain support for a policy.  I am not sure I would describe that as “cynical” and certainly would not call it “just for show”, because there are real consequences for people that disobey ROE.  Much more real than the “consequences” that non-state actors typically face for violating IHL by targeting civilians, etc.   

Lurker
Lurker

“it totally ignores the CIA program and the laws that might limit the use of civilian employees and civilian contractors working for a civilian agency that lacks combatant immunity.” Were I a lawyer defending a CIA employee in a (very unlikely) hypothetical trial conducted on non-US soil, I would argue that CIA paramilitary personnel are, in fact, covered by the combatant immunity. The combatant immunity, as defined in Geneva convention on land warfare, is meant to be very wide in its application. To be covered, you must be *part of an organised military force *be in a chain of command *bear openly a distinctive emblem or, lacking uniform, bear arms openly CIA personnel are surely bearing “a distinctive emblem”, namely a personal ID card, which is routinely born by the personnel in any security-sensitive location. They are very clearly within a chain of command, although that chain is formally civilian. And they are also officially part of a very large government organization. That this organisation is nominally civilian has no impact on the combatant status of the individual. The situation of CIA paramilitaries is similar to the policemen. By default, they are non-combatants and in case of a foreign occupation, they… Read more »

Jordan
Jordan

Lurker: the Geneva Conventions do NOT “define” combatant status for combatant immunity for lawful acts of war.  Customary laws of war do and the sole criterion is membership in the regular armed forces of a party to an international armed conflict.  Unless CIA personnel are members of the regular armed forces and the U.S. is engaged in an international armed conflict, under the customary laws of war the CIA personnel would not have combatant status or combatant immunity.  You are probably referring to GPW art. 4(A)(2), which does not apply to those covered as pows under GPW art. 4(A)(1) or (3), the latter of which use membership as the sole criterion for pow status. This is, of course, important re: soldiers who wear camouflauge during battle.
Under the self-defense paradigm, it is possible to claim that customary law provides immunity for those engaged in lawful measures of self-defense.
p.s. in my prior messae, I goofed — threat of imminent armed attack is the appropriate phrase

Jordan
Jordan

My other point is that I see no immunity for ones’ own nationals during war in view of general patterns of practice and general patterns of opinio juris with respect thereto.  Apparently dual nationals joined the enemy during
WW II, as did J.W. Lindh with the Taliban during the conflict in Afghanistan. He should have been treated as a pow and a combatant, since he took an oath with and joined the Taliban.

Lurker
Lurker

Jordan, First: customary laws of war have been made obsolete by the Geneva Conventions of 1949, which were written purposely to alleviate the deficiencies of the customary law of war. Most importantly, the definition of combatant was enlarged so that it covers also persons who are not members of regular military forces.   You seem to describe combatant immunity but you don’t mention the forum where this issue would arise. I fail to see how the combatant immunity could be an issue in any trial in the US. It is clear that no CIA official will ever be prosecuted for drone attacks in a US court. In a hypothetical case where a CIA official would stand trial in a court after being captured by a enemy nation, he should argue that he is a prisoner of war and thus entitled to combatant immunity and repatriation after the closing of hostilities.   I think your point about the combatant immunity according to the customary law might arise only if the hypothetical case would be tried in a third state under universal jurisdiction or, more likely, due to the fact that a victim of a strike was a citizen of the third… Read more »

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[…] imminence in a way that deprives the word of its ordinary meaning». Law Professor Kevin Jon Heller called Jaffer’s objection «an understatement», noting that the memo’s understanding of «imminence» is «wildly […]

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[…] Jonathan Adler has a good rundown of a much of the legal commentary on the recent targeted killing white paper (and Opinio Juris has […]

WG Salter
WG Salter

I believe the “imminence” element is there because of Brandenburg, and because the only activity they can – or are willing publicly – to ascribe WITH EVIDENCE to Al-Awlaki is that he made speeches urging war against America.  That in itself would never be sufficient for an indictment, but an indictment is also the diametric opposite of the IHL standard.
So we are left with a standard that requires no indictment, for example for treason, nor any evidence presented anywhere at anytime to why an indictment is NOT necessary.  In short, war powers to the executive against his own people on an ad hoc basis.  Forever.

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[…] זכה לביקורת חריפה בעיתון ה-Guardian הבריטי. קווין ג'ו הלר מנתח בבלוגopinio juris  את גישת התזכיר לפרשנות המושג "איום […]

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[…] זכה לביקורת חריפה בעיתון ה-Guardian הבריטי. קווין ג'ו הלר מנתח בבלוג opinio juris את גישת התזכיר לפרשנות המושג "איום […]

Jens Iverson
Jens Iverson

This is an excellent question.  I think it’s raised because of the unclear structure of the white paper, as Kevin has already pointed out.  There’s no clear separation between the analysis of jus ad bellum/aggression/non-interference cluster of questions on one hand and the jus in bello/protection of persons questions on the other hand.  Perhaps the imminence analysis derives more from the first cluster than the second. I think Jennifer (supra) may have a lead on the best explanation.  There is no need for an imminence analysis if the individual may legitimately targeted due to the status of the individual (i.e., a combatant).  But even a legitimate action in bello may pose difficulties if the international law protection at issue is not a protection for the individual, but for the state.  While this may be less important when the state gives its explicit or implicit consent (regardless of whether it is private) (although not necessarily unimportant – there is a line of argument saying assisting a state in a civil war can violate the principle of non-interference), it is more important if the state has not given its consent for the use of armed force but is unwilling or unable to stop… Read more »

Hostage
Hostage

I suppose that when you set out to write an opinion that permits the US government to murder its own citizens, either at home or abroad, as a result of an armed conflict, that you need to explain as a minimum why the prohibitions contained in 18 USC § 2441 – War crimes  and Common Article 3 of the Geneva Conventions no longer apply.
 
Those prohibitions specifically extend to members of the enemy’s armed  forces who can be considered unarmed and out of the fight for any reason whatever and those civilians who do not appear to be taking part in hostilities. Attending weddings, funerals, and driving an automobile on a public street or highway are not particularly threatening activities that warrant a drone attack.
 
I suppose that the prohibition against murder “at any time and in any place whatsoever” continues to apply to the relationship between the officials of a signatory and its own citizens, regardless of the lack of a legal duty to capture someone suspected or merely accused of being an attacker or a leader of al-Qa’ida.

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[…] in particular, Kevin Heller’s and Deborah Perlstein’s comments on Opinio Juris here, here, and here, as well as Steve Vladeck’s take on Lawfare). I have little to add to this – […]

Benjamin Davis
Benjamin Davis

There are many people commenting on this White Paper with analyses under domestic and international  law.  Four thoughts came to mind that I hope might be of interest.   1)      Targeting Americans:  If my memory serves me well, I can remember in the late 60’s a Life Magazine article which had a fold out page of some 30 or so Black Panthers that had been killed by police in a very short period in several cities.  There was a question raised as to whether this was a coordinated effort on the part of police departments across these cities.  I remember the denials. I remember Mayor Rizzo of Philadelphia being prominent in all this.  There was always a suspicion that there was targeting of these Black Panthers because of the threat they were perceived to be.   2)      Targeting Americans Abroad: Having lived for 17 years in France, the historical/hysterical resistance on the US side to thinking of Americans living abroad as “true Americans” was something about which Americans abroad would talk.  Sometimes it was with regard to holes in laws passed by Congress that were due to Congress having overlooked the implications of the laws for Americans living abroad.  At… Read more »

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[…] in a way that deprives the word of its ordinary meaning”. Law Professor Kevin Jon Heller called Jaffer’s objection “an understatement”, noting that the memo’s understanding of […]

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[…] ongoing hostilities authorized by the 2001 Authorization for the Use of Military Force (AUMF), an imminence analysis is not relevant at […]

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[…] in a way that deprives the word of its ordinary meaning”. Law Professor Kevin Jon Heller called Jaffer’s objection “an understatement”, noting that the memo’s understanding of […]

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[…]  Many people are skeptical of that view, of course.  But Kevin Jon Heller is quite right in his observation at Opinio Juris that, if the US government actually means its invocation of a non-international armed conflict (a […]

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[…] in a way that deprives the word of its ordinary meaning”. Law Professor Kevin Jon Heller called Jaffer’s objection ”an understatement”, noting that the memo’s understanding of […]

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[…] noted that states must “not use ‘targeted killings’ as a deterrent or punishment,” and international law scholars who have noticed serious flaws in the Obama administration’s leaked legal justification for […]

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[…] note' dat ztatez mus' “not use ‘targete' killingz’ az a deterrent o'punishment,” an' international law zcholarz who be notice' zeriouz flawz n' da Obama administrashun’z leake' legal justificashun […]