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

by Kevin Jon Heller

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.”

27 Responses

  1. 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.

  2. 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. 

  3. 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.

  4. 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.  

  5. 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.

  6. 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.   

  7. “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 should continue their normal duties unless the occupying power decides to intern them. However, if they are ordered by their responsible leadership to partake in hostilities, which is often the case during the last few hopeless days prior to foreign conquest, the policemen become lawful combatants.

    Thus, the domestic definition of CIA as a “civilian” organisation does not have binding value in IHL, if the organisation acts in practice as a military organisation.

  8. 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

  9. 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.

  10. 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 state. (This might happen e.g. in Europe.) Even such trial would be quite unlikely, and I think that a combatant privilege claim would have quite good chance of success, as it would be in the interests of the local government: the CIA official would walk free, and the local justice system would be seen as a supporter of the international humanitarian law.

  11. 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.

  12. 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 a non-state actor on its territory from potentially harming the interests of the acting state.  In concrete terms – if Pakistan really hasn’t consented to ongoing use of force on its territory, it makes a difference whether the individual targeted is part of an organization that poses imminent harm to the US or not – not because the imminence of that harm has a bearing on whether the individual can be killed under IHL due to his (generally his) status as a combatant, but because the only way there’s an even remotely plausible argument that such use of force isn’t an act of aggression requires some sort of self-defence or necessity argument.  I’m not saying those arguments would have merit, but an imminence argument wouldn’t be irrelevant to them.

  13. 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.

  14. 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 the end of the 90’s I believe there were estimates that 10 million Americans lived abroad.  These included soldiers and people with the government, but the vast majority were private citizens finding their bliss by having these international careers (Obama’s mother as an example, but also corporate types being sent to foreign offices, lawyers in lawfirms, etc).  Being evaluated as to whether one is “targetable” in a way that may not be considered permissible on the domestic front appears to be the lot of those Americans abroad.  I am made to think of Richard Wright who died in Paris in 1960.  I knew his widow in Paris and remember there were grave suspicions about military intelligence being in his hospital room when he died – even wondering if he had been killed because of his statements about America (more freedom in one square block of Paris than in the entirety of the state of Mississippi for a black man was one quote).  I suspect that when we look  through the past someday we may find out some antecedents for the program.  One particular concern is with how one can become operational?  Given that in the Seminole Wars, Arbuthnot writing a letter about the Seminoles with some sympathy became a basis for his military commission, I can expect that e-mails that show any sympathy toward detainees from Al-Qaeda about their torture can be looked at as making one a fellow traveler.  Doing something about that torture might make one be seen as material support for terrorism and by risking embarrassment of the government, one could become a burden.  Personal strikes are one thing (targeting a person for their specific actions).  One can also be concerned about signature strikes in which one’s age, gender, and carrying of a gun legally can begin to define one as “dronable.”  When I lived in Paris one of our friends was Dulcie September (for whom my daughter is named) the local ANC representative who was assassinated in Belgian by (we suspect) the South African Secret Police of the time.  As those intelligence agencies also cooperated with the Americans, I imagine that our friendship with her and other dissidents (some violent some peaceful) from their own countries might begin to give us a signature.
    3)      Targeting Americans Abroad After They Have Served Time Abroad:  One case of a drone strike of a non-American was of an Al-Qaeda person named Al-Quso who was considered one of the people  who did the Cole bombing for which Al-Nashiri this week is in a military commission at Gitmo.  From what I have read, Al-Quso was arrested in Yemen, was convicted of a terrorism crime, and served time in Yemeni prisons.  It is after he had served that time that he was droned.  Droning someone after they have served time for foreign punishment is a particular form of droning that bothered me (not to say other forms do not).  In Paris I met black Americans who had hijacked a plane to Cuba, gone to Algiers with the Black Panthers, and made their way to Paris.  The US wanted them but the French would not hand them over for their reasons (death penalty, intelligentsia seeing them as political refugees).  They were charged with their crimes under French law and had served time in French prisons.  Under the logic here, one could see them being at risk of a drone strike.  This comment is not to understate the severity of their crime, but to think about their punishment and risk of droning as a form of double punishment which I also find troubling.
    4)      Some are crying hypocrisy for people being upset with torture under Bush but not being upset about the drones.  This line of attack is another of the relentless efforts to get us to acquiesce in the torture that was done and which remains central in the military commissions that are going on in Gitmo.  It is possible and some have complained about Bush crimes and Obama crimes at the same time.  For me, what is more interesting is to see the continuous thread across both – these were both largely CIA programs and excesses.  WTF with the CIA cowboys and cowgirls?  We are encouraged in Green Zone, Zero Dark Thirty, Argo, and soon to be out Manhunt to be so enamored of their derring do, but seems to me that there is a great deal of chaff if there is any wheat in these things.
    I am just saying.

Trackbacks and Pingbacks

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

  2. […] 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 […]

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

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

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

  6. […] 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 – […]

  7. […] 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 […]

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

  9. […] 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 […]

  10. […]  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 […]

  11. […] 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 […]

  12. […] 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 […]

  13. […] 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 […]