The Controversy over DOJ's Targeted Killing White Paper

Jonathan Hafetz

The media and blogosphere are abuzz over the release (via a leak) of DoJ's "white paper" outlining legal arguments used to support the targeted killing of a U.S. citizen in Yemen described as a "senior operational leader of al Qaeda or of an associated force." It is not difficult to see why. The white paper highlights the collision of a new technology that enables killing by remote control (drone warfare) and a novel concept of war itself, one waged increasingly away from "hot battlefields"--that is, the war formerly known as the Global War on Terror (GWOT). Both are highly controversial, and the subject of much uncertainty. Yet, rather than resolve questions, the white paper begs more.

The white paper's international law analysis is imprecise and confusing (perhaps, in places, deliberately so). It oscillates between two justifications for targeted killings: the use of military force against members of enemy forces during armed conflict and the use of force in self-defense (here, the paper cites, but does not quote, article 51 of the U.N. Charter). The paper is problematic on both fronts. As to the former, it assumes there is a global non-international armed conflict (NIAC) against al Qaeda and associated forces--a point contested by many international law scholars (see Kevin Jon Heller's indispensable posts here and here--and, contrary to the white paper, one not actually endorsed (not yet anyway) by the Supreme Court. Not only did Hamdan recognize only a non-international armed conflict with al Qaeda in Afghanistan, but the Supreme Court has historically been very cautious in addressing the government's claim that changing conceptions of war require expanded presidential powers (an argument pressed not only in Hamdan, Hamdi, and other GWOT cases, but also in Youngstown, Quirin, and other cases from more conventional armed conflicts where the government invoked the idea of "total war"). The paper also fails to engage with IHL rules on targeting civilians in NIAC, particularly with the requirement of direct participation in hostilities (likely because the government views it as too restrictive). As to self-defense, the white paper does not address how its elastic concept of "imminence" expands upon existing international-law definitions and understandings of the term.

The white paper's constitutional analysis is also problematic. The paper glosses over the lurking substantive due process question. I agree with the paper's conclusion that U.S. citizenship does not immunize an individual from the use of military force. That is the upshot of Quirin and Hamdi (while the former dealt with military trial and the latter with military detention, both support the argument that deadly force may potentially be used against citizens in time of war). Those cases (not to mention Milligan)also suggest, however, that the U.S. government cannot constitutionally kill a U.S. citizen under a law-of-war rationale unless that use of force comports with the law of war. Further, but importantly, the cases suggest that a statute (here, the 2001 Authorization for Use of Military Force (AUMF)) should not be construed as authorizing the use of deadly force against a constitutionally protected target unless that use of force is firmly grounded in the law of war. Note here Quirin and Hamdi's reference to clearly established and universally accepted law-of-war principles in finding the president's use of the military constitutional.

The paper does acknowledge that procedural due process can limit the president's authority to use military force against a U.S. citizen, citing Hamdi and its invocation of the Matthews v. Eldridge balancing test. But, as Steve Vladeck has pointed out, the paper ignores the prong of the test focused on the risk of error and the value of additional safeguards in minimizing that risk. The paper further concludes that judicial process is unwarranted.

As a recent report, The Civilian Impact of Drones: Unexamined Costs, Unanswered Questions, makes clear, the risk of error in drone attacks remains significant, despite technological improvements. But there is no judicial examination of the standards the government utilizes, even ex post. Nor is there any remedial structure in place--judicial or otherwise--for civilians harmed by drones in Pakistan, Somalia, and Yemen. Such a structure not only could provide some compensation to victims, but also could provide some check on the drone program and the process it employees in selecting targets and carrying out attacks.

But perhaps my biggest concern with the constitutional analysis is what the paper doesn't address. Because it concerns only the targeted killing of a U.S. citizen, it does not engage with the question of what, if any, constitutional protections are afforded non-citizens, who are the overwhelming target of drone strikes. What, if any, role does the Constitution play in limiting drone attacks against non-citizens? Presumably none. The U.S. has consistently resisted recognizing the Constitution's extraterritorial application to non-citizens. This means then that the white paper likely reflects the U.S. government's most robust interpretation of the constitutional limits of its targeted killing program. To the extent the Constitution serves as a constraint on drone strikes in a case like the one described in the white paper, that constraint would be absent from virtually every other scenario.

The complexity of the issues, the continuing concerns about the program's legality, and the absence of any judicial check, at minimum, demand greater transparency to allow for more informed public debate. This is particularly so given the nature of drone warfare, which is conducted largely in secret and which avoids the type of U.S. troop involvement that can cause the public to question the government's actions. (Greater transparency is thus critical to what Mary Dudziak describes here as the need for "a new form of war politics"). There is no legitimate basis for the Obama administration's refusal to release the white paper, which was never classified in the first place. (It should also release the legal reasoning in the underlying Office of Legal Counsel memo on which the paper is based). Indeed, one might think that President Obama--who has otherwise been so pragmatic in approaching national security issues--would be eager to release the legal basis for targeted killing since failing to do so suggests there is something to hide.



Posted 1:45 PM by Jonathan Hafetz [link]