The release of an unclassified “white paper” describing the administration’s legal justification for targeting U.S. citizens who are senior operational leaders of al-Qaeda has reignited the debate over how we pursue terrorists. This is a good thing, as there are few if any issues that are weightier and require broader public discussion than how our government chooses to take the lives of Americans. People will obviously disagree on whether the current course is correct, but what should be avoided is ignoring what the paper actually says and—by extension—what the policy actually is. In my view, when one focuses on the paper’s actual legal justification and the practical applications, the memorandum in question and the policy it represents are both right and good.
- The authority is constrained. Contrary to many observers’ statements, the white paper includes numerous constraints on the president’s authority. The paper does not authorize targeting within the United States, nor does it permit targeting of loose al Qaeda affiliates or family members. Rather, it is limited to “senior operational leader[s]” of al Qaeda—and only those that are “continually planning attacks against U.S. persons and interests.” Moreover, the paper requires that the individual being targeted be an “imminent threat.” Many have noted that the paper includes “a broader concept of imminence,” but even here the concept is far from unbounded. The paper includes multiple factors that should be considered (a common legal balancing approach) and offers at least one specific example that would suffice: when a senior operational leader has been “personally and continually planning terrorist attacks.” It then draws the reasonable corollary that if the leader has recently planned attacks and remains an al Qaeda leader, there need not be additional evidence of additional planning. In short, the universe of permissible targets is significantly limited by the paper’s explicit terms. One can always use the slippery slope argument to say this is the first step toward a broader (and more offensive) policy, but as the economist Richard Thaler has noted, “[i]f you are opposed to a policy, state your case based on the merits—not on the imagined risk of what else might happen down the road.”
- There is oversight. The Constitution established three branches of government for many good reasons, none more important than oversight. And in the words of the Democratic Chairman of the Senate Select Committee on Intelligence Senator Dianne Feinstein, “[t]he white paper (along with other documents and briefings) has allowed the Intelligence Committee to conduct appropriate and probing oversight into the use of lethal force.” This is an unequivocal statement that the president’s approach has been neither unilateral nor beyond review. And had there been significant opposition in either the Senate or House, both bodies could have sought relief through modifying the 2001 Authorization for Use for Military Force (AUMF) or terminating appropriations. They have not.
Nor should we conflate oversight (which exists) with judicialization of the process. Our third branch, the courts, do not play as significant a role as the politically accountable branches, but this limitation is historically sound. As the Supreme Court observed as recently as 2006, the courts “accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war” and that “the scope of that discretion necessarily is wide.” Courts of course retain a role (as was clearly recognized in the landmark case of Hamdi v. Rumsfeld), but suggesting that a court might act as it does in a criminal prosecution when targeting a U.S. citizen terrorist in Yemen or elsewhere overseas during an armed conflict would be wholly unprecedented.
- It is about the person being targeted. Several observers have noted that the paper justified the targeting of not only established al Qaeda operational leader Anwar al-Awlaki, but also (among others) his 16-year-old son. Without questioning the tragedy of al-Awlaki’s son being killed, this is simply mistaken. In fact, were the government to have reason to know of a U.S. person who would be harmed who did not qualify as a senior al Qaeda operational leader who was plotting strikes, the strike would likely not be permitted. And the alternative—to require the government to affirmatively establish that no U.S. persons were present when another al Qaeda senior leader was legitimately targeted—would virtually prohibit any strikes at all.
- It is realistic. Even in legal debates, the realm of the possible matters. In this regard, the white paper’s standards accurately reflect how intelligence and counterterrorism work. Although there are times when the U.S. sees terrorist plots from their inception and tracks their evolution, this is the rare exception and not the rule. And regrettably, in cases ranging from the Christmas Day underwear bomber to the package bombing attempts of 2010, we do not have warning until the plot has come dangerously close to fruition. In this regard, demanding knowledge of a specific, imminent plot before targeting the plot’s operational leader (as opposed to the paper’s standard) would force us into the constitutional suicide pact of which Supreme Court Justice Robert Jackson warned. Moreover, the paper’s “feasibility” standard (that lethal targeting is permissible only when capture is not feasible) allows the president to prioritize the safety of our troops when considering a lethal strike. The alternative—to require an attempted capture in places like Yemen prior to striking—would lead either to inaction or the pointless sacrifice of countless soldiers.
None of this is to say that the decision to take lethal action against anyone—a U.S. citizen even more so—is an easy decision. Speaking as someone who has been involved in the process, it is not. But neither is it easy to comfort the victims of terrorism or to receive flag-draped coffins of fallen heroes. Neither of these terrible outcomes can dictate our decision. Instead, our democracy demands an informed debate of how we protect our nation in times of armed conflict with a terrorist organization at war with us. In this regard, the release of this memorandum serves a valuable purpose by casting greater light on how we make these difficult decisions—and in my view, it presents a compelling case for why the present course is correct.
Michael Leiter