One of the Things We Learned About Targeting

by Deborah Pearlstein

There is now a set of important new documents regarding its targeted killing operations: (1) a letter from U.S. Attorney General Eric Holder to members of Congress describing the decision to target U.S. citizen Anwar al-Aulaqi; (2) a “fact sheet” on procedures for the use of force outside areas of “active hostilities”; and (3) the transcript from the President’s speech to the National Defense University. What can we glean from them about the legality of U.S. drone operations, as opposed to what we learned from the leaked DOJ White Paper some months back? I’m still sorting it out, but for now, here’s one: Whether or not you believe the United States is in a legally recognizable transnational non-international armed conflict with Al Qaeda – a view the United States embraces but the ICRC and most U.S. allies reject – the standards announced in these documents appear intended to keep U.S. targeting operations in line with the international law of self defense.

Yesterday, the President reiterated his view (embraced by Congress and the D.C. Circuit) that the United States is at war with Al Qaeda. As a matter of domestic authority, then, it’s clear he thinks the AUMF suffices to authorize the drone operations he described. But this armed conflict theory has never been widely embraced internationally, and it is in part this disconnect between the United States and the rest of the world that has fueled the criticism of U.S. drone operations internationally. So let’s pretend for a minute the armed conflict theory doesn’t exist.

Under Article 51 of the UN Charter, states have an inherent right to respond to “armed attacks” in self defense. Many states also recognize at least some limited customary right post-UN Charter of anticipatory self-defense – that is, a right to strike before the enemy begins its attack. This notion was captured by the Caroline letter’s statement requiring for such force “the necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” Either way, whether force is in response to an armed attack or in anticipation of an imminent one, if a state undertakes such action, its response must be, among other things, necessary, proportional, and timely. Of central importance here, establishing “necessity” traditionally requires a finding that no alternative response (short of force) would suffice to reasonably address the threat.

Now hold this summary up against yesterday’s fact sheet. The fact sheet provides that outside an area of “active hostilities” (such as, I take it, the current Afghan theater, broadly recognized as the site of a non-international armed conflict), the United States will use lethal force “only to prevent or stop attacks against U.S. persons,” only against a target that “poses a continuing, imminent threat to U.S. persons,” and only when “no other reasonable alternatives exist to effectively address the threat to U.S. persons.” The fact sheet imposes a lot of other conditions as well, but for present purposes, these are most important. So are these rules consistent with international law standards of “necessity” and “imminence”? Take “necessity” first, which here seems to me nearly identical to the standard as I learned it under international law. True, the fact sheet also mentions the far more controversial notion that the United States can strike when the host state is “unwilling or unable” to act, but that requirement comes in addition to, not instead of, the “no other reasonable alternatives” requirement.

On imminence, it is still not entirely clear, but there are several reasons why the fact sheet version of the test is more reassuring than the previously leaked DOJ White Paper’s version (which, unhelpfully, addressed the concept of imminence only in the context of its U.S. constitutional due process analysis). For one thing, the White Paper repeatedly insisted it was addressing only a single case in which lethal targeting would be permissible, refusing to exclude the possibility that targeting could also be permissible in a host of lesser circumstances. The fact sheet is admittedly a statement of “policy standards and procedures” and not of law, but it is categorical in ways the White Paper was not, providing that the United States will “only” use force in the circumstances listed. Also in contrast to the White Paper, the fact sheet carries the following statement with respect to its requirement that there be a “continuing, imminent” threat: “It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons.” That’s helpful, and more than the White Paper said, but of course only narrows the field so much. It’s good that the administration thinks such a threat is not posed by “all terrorists,” but does the administration put, for example, all Al Qaeda-member terrorists in this category? That would seem substantially overbroad.

Then there’s the difference only a lawyer could love, between the White Paper’s description that the target be “continually planning attacks,” and the fact sheet’s requirement that the target pose “a continuing, imminent threat” to U.S. persons. I’d like to read the latter to be narrower than the former. Here’s why. Someone who is “continually planning attacks” could easily be, rather like Wile E. Coyote, always thinking up schemes, even if many of those schemes are very far from coming to fruition, or might never come close. The White Paper defined an “imminent threat” as an operational leader of Al Qaeda or an associated force who was “continually planning attacks,” however close those attacks were to realization; in other words, it seemed to equate “imminence” with “continual planning.” That can’t be right; it’s certainly not what the Caroline suggests or any reasonable interpretation of what “imminence” means. The fact sheet doesn’t actually define what it means by “imminence” – which is why things remain unclear – but unless the authors were being willfully redundant, the requirement of a “continuing, imminent threat” implies a requirement that the threat itself be both continuing and imminent, and that those words carry separate meaning. That would be an improvement. Even without telling us more about what it means by “imminent,” the administration could do some work to clarify simply by indicating these standards replace the White Paper or other previous guidance.

Finally, there’s this from the President’s speech on his vision of the future of counterterrorism: “We must define our effort not as a boundless ‘global war on terror’ – but rather as a series of persistent, targeted efforts to dismantle specific networks of violent extremists that threaten America….” When President Clinton used cruise missiles to strike suspected Al Qaeda training camps two weeks after the attacks on the U.S. embassies in Kenya and Tanzania in 1998, it was UN Charter article 51 authority on which he relied; the U.S. strikes in that instance were met with vigorous support by both parties in Congress, the American public, and U.S. allies in Europe and elsewhere. President Obama referenced the U.S. response to those attacks and others in his speech as a model to which we may look to return. If that is indeed the model, then it is one consistent with international law of self-defense.

http://opiniojuris.org/2013/05/24/one-of-the-things-we-learned-about-targeting/

2 Responses

  1. Yes, at “war with al Qaeda” is definitely a minority view and is not based on customary or treaty-based international law.  Al Qaeda does not meet the customary and traditional test for insurgent status; does not meet the test set forth in Geneva Protocol II, art. 1; and does not even meet the minority claim that first appeared in the ICTY Tadic Appeals Chamber decision as fleshed out by later ICTY decisions. See http://ssrn.com/abstract=2165278
    No, the Caroline incident and interchange had nothing to do with anticipatory self-defense or an “imminent” attack, much less an “imminent” threat.  The discussion revolved around claims concerning self-defense in the context of well-known continuing armed attacks by non-state actor rebels that had already been supported by the vessel Caroline.  The disagreement centered on the “means” and timing of the self-defense measures that the UK could recognizably take in response to continuing armed attacks and their continued facilitation.  See, e.g., http://ssrn.com/abstract=1520717 .  One of the British lawyers even remarked that the UK could rightly have targeted an artillery emplacement in the U.S. without U.S. consent if it had been firing across into Canadian territory — as a matter of “self-defense.”  And the British lawyer was correct.  Even today, self-defense against ongoing non-state actor armed attacks can be permissible without the consent of the state from which such armed attacks emanate and without two or more states being at war.  Precisely the circumstance addressed  in the Caroline incident despite disagreement concerning methods and timing of the British measures of self-defense.
    For years now, yes, there are two alternative paradigms to consider: (1) the law of war (esp. re: “civilians” who are DPH), and (2) the law of self-defense (esp. re: “civilians” who are DPAA).  See, e.g., articles on SSRN noted above plus http://ssrn.com/abstract=1718548
    Lets talk about closing GTMO and continuing law of war violations (GC arts. 47, 147) re: unlwaful transfer of persons from occupied territory (facilitated by the Jack Goldsmith memo). 

  2. Yes, there are two alternative paradigms to consider: (1) the law of war paradigm (esp. re: “civilians” who are DPH — see Kevin’s posts), and (2) the law of self-defense paradigm (esp. re: “civilians” who are DPAA), see http://ssrn.com/abstract=1718548
    But, the U.S. cannot be at “war” with al Qaeda as such. see http://ssrn.com/abstract=2165278  because al Qaeda does not even meet the test for insurgent status under (1) the traditional and customary criteria, (2) Geneva Protocol II, art. 1; and (3) the minority effort to change the law set forth in the Appeals Chamber decision in Tadic, as fleshed ot later in other ICTY decisions (which, still, is not treeaty-based or customary international law in any event).  see last cited article in the ILSA J. Int’l & Comp. L.
    But, no, the Caroline incident did not involve a claim to engage in anticipatory self-defense or when an armed attack is imminent.  The discussion centered on the “means” and timing of the UK measure of self-defense in the context when non-state actor rebel armed attacks had already occured and were ongoing and when the vessel Caroline had already facilitated such attacks.  One UK lawyer even wrote that if a rebel artillery emplacement had been firing across the boarder into Canada at Uk troops, the UK had a right to use self-defense against the non-state actors in the U.S. (as generally agreed, without U.S. consent and when the U.S. and U.K were not at war, and without such self-defense action creating a war between the two states) — a circumstance that would still be permissible today re: the law of self-defense — see http://ssrn.com/abstract=1520717  (re: what actually happened and what was actually argued re: the Caroline incident involving non-state actor armed attacks and their facilitation by the vessel).
    The Obama claim regarding an “immient threat” is apparently close to the discredited and unlawful claims of the Bush Admin. re: an “emerging” threat — neither one of which involves a present, real threat.  Moreover, preemptive slef-defense claims hinge on the actually existence of a significan threat, and preemptive self-defense would be illegal under the UN Charter.  Even anticipatory self-defense, when there is an “immient armed attack” does not fit within the language of article 51 of the Charter.

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