Leaked US justification for drone killings assailed as rewriting definition of 'imminent threat'
By Jonathan S. Landay | McClatchy Newspapers | Published: February 5, 2013
WASHINGTON — Civil and human rights advocates Tuesday denounced a leaked Obama administration “white paper” that sets out the legal justification for killing U.S. citizens suspected of being members of al-Qaida, an issue certain to arise during the confirmation hearing Thursday of White House counterterrorism adviser John Brennan to be CIA director.
The White House on Tuesday defended the practice of targeted killing, for which Brennan is a key overseer, as “legal … ethical and … wise.” But spokesman Jay Carney rejected anew calls by lawmakers and others for the administration to release a secret 2010 Justice Department legal opinion on which the leaked Justice Department white paper was based.
Sen. Dianne Feinstein, D-Calif., who chairs the Senate Intelligence Committee that will consider Brennan’s nomination, acknowledged that the panel had received the white paper as a “confidential document” in June.
The memo has allowed the committee “to conduct appropriate and probing insight into the use of lethal force,” and its release permits the public to “review and judge the legality of these operations,” she said.
At the same time, she said the panel will continue pressing for the secret legal opinion written by the Justice Department’s Office of Legal Counsel, which she said contains “details not outlined in this particular white paper.”
Separately, eight Democratic and three Republican senators sent a letter Monday to President Barack Obama asking that he give Congress “any and all legal opinions that lay out the executive branch’s official understanding of the president’s authority to deliberately kill Americans.”
The Obama administration has refused for years to make public the legal opinion on which it has based its use of unmanned drones to target American citizens it accuses of being affiliated with al-Qaida, most notably Anwar al-Awlaki, the spiritual leader of al-Qaida’s Yemen affiliate.
The 16-page Justice Department white paper became public late Monday after it was leaked to NBC News. It asserts that the government has the constitutional power to kill a U.S. citizen who is believed to be a leader of al-Qaida or an “associated force” and is in another country “actively engaged in planning operations to kill Americans.”
The unclassified and undated memo says that three conditions must be met. “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 law of war principles,” the memo says.
Civil and human rights experts said the paper jumbles international and U.S. law. They also rejected the administration’s assertion that the president’s sweeping authority to kill Americans abroad is beyond court review as well as what they called an exaggerated rewrite of the legal definition of imminent threat.
“The government just gets to make decisions in secret,” said Andrea Prasow, senior counterterrorism counsel for Human Rights Watch.
The administration received a vote of confidence from Rep. Mike Rogers, R-Mich., a former FBI agent who chairs the House Intelligence Committee.
“I agree with the Justice Department’s conclusion that targeting a senior leader of al-Qaida is a lawful act of national self-defense in these circumstances,” Rogers said. “When an individual has joined al-Qaida — the organization responsible for the murder of thousands of Americans — and actively plots future attacks against U.S. citizens, soldiers and interests around the world, the U.S. government has both the authority and the obligation to defend the country against that threat.”
Targeted killing, which began under former President George W. Bush, officially remains a classified CIA program. To date, it is known to involve only missile strikes by unmanned aircraft in Pakistan, Somalia and Yemen against what U.S. officials say are leaders of al-Qaida and “associated groups” plotting imminent attacks on U.S. targets.
An estimated 3,500 people have been killed in the strikes, the vast majority in Pakistan’s tribal area bordering Afghanistan, a region largely outside government control where al-Qaida and allied militants have found sanctuary among Pakistani and Afghan insurgents. The Obama administration says the attacks have decimated the ranks of the terrorist network responsible for the 9/11 attacks, but human rights groups and residents say a large number of civilians have died.
At least three Americans have been among those killed by drones, all in Yemen. Two were killed in the same Sept. 30, 2011, strike: al-Awlaki, who was born in New Mexico and who Obama administration officials claim was the operations chief of al-Qaida’s Arabian Peninsula branch; and Samir Khan, an Islamist writer who grew up in New York City and whose family now lives in North Carolina. Al-Awlaki’s teenage son, who was born in Colorado, died in a separate drone strike two weeks later.
Brennan, who has been Obama’s top counterterrorism adviser, is among several U.S. officials who have outlined the administration’s legal grounds for those killings in speeches aimed at quelling calls for the release of the secret Office of Legal Counsel opinion. A Manhattan federal judge ruled last month in a Freedom of Information Act case that the government was not obligated to make the opinion public.
The white paper, however, spells out rules under which such attacks can be ordered that appear to be much less stringent that what administration officials have said.
It says, for example, that the United States isn’t required “to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”
It also says the United States has the right under international law to act under the suspicion that an attack might take place.
“It must be right that states are able to act in self-defense in circumstances where there is evidence of further imminent attacks by terrorist groups even if there is no specific evidence of where such an attack will take place or of the precise nature of the attack,” it says. “Delaying action … would create an unacceptably high risk that the action would fail and that American casualties would result.”
Several experts called that an exaggerated rewrite of the legal definition of “imminence,” something that the administration has labeled “elongated imminence.”
“That is a completely nonsensical case,” said Micah Zenko, an expert with the Council on Foreign Relations.
White House spokesman Carney defended the paper’s definition of imminent threat, saying, “What you have in general with al-Qaida senior leadership is a continuing process of plotting against the United States and American citizens. I think that’s fairly irrefutable.”
Carney reiterated that a pillar of the policy is the post-9/11 congressional resolution authorizing the president to use “all necessary military force” to fight al-Qaida.
“Certainly under that authority the president acts in the United States’ interest to protect the United States and its citizens from al-Qaida,” he said.
The white paper also asserted that judges cannot review or block targeted killing orders because that “would require the court to supervise inherently predictive judgments by the president and his national security advisers as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.”
The memo said that the legal basis for targeted killing relies on two principles of international law: the right to kill an enemy in the course of an armed conflict and the right of a nation to defend itself against an imminent threat of armed attack.
By citing both, however, the administration is “conflating” distinct legal principles “so that it’s never clear which legal basis the government is relying on,” said Prasow of Human Rights Watch. “It may be able to rely on both, but what it does with the self-defense rationale is that it takes the idea that the threat is imminent and then writes away the definition of imminence.
“This idea that the government can rewrite legal terms is one that we’ve seen before,” she said, citing the Bush administration legal opinion that redefined torture, allowing the CIA to use interrogation methods such as waterboarding that most experts regard as torture.
The senators who sent a letter to Obama asking that he give Congress “any and all legal opinions that lay out the executive branch’s official understanding of the president’s authority to deliberately kill Americans” were: Ron Wyden, D-Ore., Mike Lee, R-Utah, Mark Udall, D-Colo., Chuck Grassley, R-Iowa, Jeff Merkley, D-Ore., Susan Collins, R-Maine, Richard Durbin, D-Ill., Patrick Leahy, D-Vt., Tom Udall, D-N.M., Mark Begich, D-Alaska and Al Franken, D-Minn.