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The White House On Targeted Killings: More Questions Than Answers
Attorney General Holder gave a widely-anticipated speech yesterday attempting to shed some light on the Administration's policy regarding the targeted killing of American citizens engaged in terrorism abroad. Politico has a good summary of what was said and I recommend reading Adam Serwer's take over at Mother Jones. The bulk of the speech was boilerplate that we've heard before, but the important portion was when Holder laid out the standard used by the Administration when making decisions about targets:
"Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles."
While this is the clearest statement that's been given by the Administration on the subject, it begs more questions than it answers. He characterizes Al Qaeda as posing an ongoing and imminent threat to the US. Given that reality, it's not clear what relevant distinction exists between "operational" and non-operational leadership. Holder's internal logic wouldn't seem to preclude the targeting of people who provide significant material, recruiting, or logistics support if the entire organization is viewed as posing an imminent threat to Americans.
He goes on to acknowledge the necessity of "robust oversight," explaining the detailed procedures in place to deal with intelligence gathering, wire-tapping, and prosecuting suspects through military tribunals. When he gets back to the situation at hand, however, the only oversight that appears to apply to targeted killings is for the White House to "regularly inform...the appropriate members of Congress." Mere Congressional notification hardly seems like a robust form of oversight. In fact, it's really the bare legal minimum. It certainly sounds as though the White House is operating under the amended National Security Act which doesn't require them to notify all of Congress, or even everyone on the relevent Intelligence committees. They can choose to brief only the so-called "Gang of 8," and the Congressional Research Service points out that "Congress does not have the authority under statute to veto outright a covert action." There may be compelling reasons for the Administration to limit oversight so severely, but the Attorney General didn't make those arguments.
Holder did, however, attempt to take his most vocal legal critics head-on when he asserted--correctly--that "Due process and judicial process are not one and the same." The Supreme Court has consistently allowed for alternative, extra-judicial processes in instances where a judge and traditional trial are unnecessary. Kevin Drum points out, however, that historically this approach has been "meant to keep full-blown trials from being required even for fairly minor offenses, something that could grind the criminal justice system to a halt. It's not meant to demean the due process required for something as serious as targeting someone for killing." The legal precedent is clearly on the side of the Administration here, but in order to know whether or not they are, in fact, demeaning the standard--we would need a lot more knowledge about how the internal process of target selection and approval is carried out. These are details that the White House appears intent on keeping to itself.
It isn't just American terrorist supporters who have a deeply vested interest in this policy, however. There's more than a few foreign countries that I'm sure are weary of American Hellfire missiles targeting people within their borders. Holder recognized these concerns, assuring the audience that the White House's legal interpretation "does not mean that we can use military force whenever or wherever we want." After this throat-clearing, however, he goes on to remind everyone that "neither Congress nor our federal courts has limited the geographic scope of our ability to use force... the use of force in foreign territory would be consistent with these international legal principles if conducted, for example, with the consent of the nation involved - or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States." We know that the Osama bin Laden raid, for example, was conducted without the consent or knowledge of the Pakistani government, so presumably there is some kind of process and criteria in place to make a determination about whether or not a country is "unable or unwilling" to act. Like the process for determining individual targets, though, the actual standards and calculus being used remains too opaque to judge.
All told, I commend the Administration's attempt to increase, if only marginally, the transparency around this policy. Americans, legal scholars, and foreign countries are right to view these actions with skepticism. The Authorization for Use of Military Force, passed by Congress in the wake of the September 11 attacks, grants the President broad powers to use "necessary and appropriate force" in protecting the nation from terrorism. As the Attorney General himself pointed out, though, proper oversight and review are essential to ensure that the White House exercises this power in a way that's consistent with our constitution, values, and international legal commitments. The ACLU, in a response to Holder's speech, argued that "judicial oversight is critically important given the breathtaking authority the government has claimed." Some accommodation for national security is clearly appropriate, but whether more formal judicial oversight is needed can't be fairly determined without understanding the rigor of the Administration's internal due process. With that in mind. civil rights groups are doing a real service by continuing to push for the needed level of disclosure.