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.”