Photo Source: Press TV
Everyone remembers the story back in February of 2013 where a “white paper” from the Department of Justice was leaked. The title of that memo was “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa’ida or an Associated Force”. In the memo, the Department of Justice offered a three prong test to determine the legality of a killing. A killing would be legal if:
1) an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States;
2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and
3) the operation would be conducted in a manner consistent with applicable laws of war principles.
There are many problems with this test, but one main one is the apparent mixing of laws governing ongoing hostilities and the right to use force. For example, prong 3 has to do with the laws governing ongoing hostilities by stating that operations will follow “applicable law of war principles”, while prong 1 and prong 2 deal with when you have a right to use force. The confusion lies in that under law of war principles, an enemy combatant may be killed at any time during an ongoing conflict regardless of whether he or she poses an “imminent” threat. On the other hand, force may not be used against a civilian when that civilian no longer poses an “imminent” threat. The point is that if the target of a drone strike is an enemy combatant in the U.S.’ ongoing hostilities, as authorized by the 2001 Authorization for the Use of Military Force (AUMF), rather than a civilian, then an “imminent” analysis is not required because an enemy combatant can be killed at any time.
Despite this, the memo goes on to redefine “imminent”, loosening the temporal constraints that basically define the word and proposes, as a standard for self defense, a new probability test that considers:
a) the relevant window of opportunity to end a looming threat,
b) if the strike has a high likelihood of success and
c) if the strike sufficiently reduces the probability of future American civilian casualties.
From this new standard we can see a very slippery slope with the term self defense with “imminent threat” as the main catalyst for a defensive first strike. One disturbing problem is if this new definition is used towards state actors as opposed to the current non-state actor scenario.
The title of the memo itself made the target description very specific with regard to an American citizen, “…a Senior Operational Leader of Al-Qa’ida or an Associated Force”. A large controversy over this has recently come to light again given the story released from McCaltchy Newspapers on Tuesday April 9th 2013. In that story, Johnathan Landsey reports that based on leaked top-secret U.S. intelligence reports, it appears that at least 265 people that the CIA killed from 2010-2011 were not senior Al-Qa’aida leaders but were categorized as Afghan, Pakistani and unknown extremists. The intelligence reports themselves cover drone strikes from 2006-2008 and 2010-2011. The targets were not American citizens but there doesn’t seem to a set standard for who may get killed via drone strike and the drone controllers said that on several occasions they were not entirely certain who they killed. These reports raise a very terrifying concern, what does an operational leader of Al’Qa’aida or an associated force mean? The consequences are dire because we are talking about the standard that will make it legal for the President to order the killing of an American citizen without due process. As of now there is almost no over site with regard to how targets are picked and if they meet the criteria.
[It should be noted that the white paper that was leaked is not the official statement of the Department of Justice.]
My questions for you are:
1) If the United States is going to use the “probability test” in determining whether there is an “imminent threat”, should all other countries across the world be allowed to use that test as well?
2) Consider the situation with Syria and its civil war. Why couldn’t Syria legally target its own citizens that are “operational leaders” (whatever that means) in the crusade to over throw the current Syrian government even if these citizens do not carry weapons? Anyone who actively attempts to overthrow the government of the United States is seen as a terrorist, why would it be different for Syria?
3) Is there any legal recourse to force the U.S. Government to release any legal standard set by the Justice Department with regard to the legal killing of U.S. citizens by drone strike?