An MQ-9 Reaper drone taxies on the airfield at Fort Drum, New York, October 2011. Photo: U.S. Air Force
“Imminence” used to mean something in military terms: namely, that an
adversary had begun preparations for an assault. In order to justify his
drone strikes on American citizens, President Obama redefined that
concept to exclude any actual adversary attack.
That’s the heart of the Justice Department’s newly-leaked white paper, first reported by NBC News, explaining why a “
broader concept of imminence”
(.PDF) trumps traditional Constitutional protections American citizens
enjoy from being killed by their government without due process. It’s an
especially striking claim when considering that the actual number of
American citizens who are “senior operational leader[s] of al-Qaida or
its associated forces” is vanishingly small. As much as Obama talks
about rejecting the concept of “
perpetual war” he’s providing,
and institutionalizing, a blueprint for it.
Imminence has always been a tricky concept. It used to depend on
observable battlefield preparations, like tanks amassing near a front
line, missile assemblage, or the fueling of fighter jet squadrons. Even
under those circumstances, there has been little international consensus
about when a nation under threat can take action. A classic example is
Israel’s
June 1967 bombing of the Egyptian Air Force
on its tarmac, which followed months of signals that Egypt was about to
launch a massive assault. Whether you view Israel or Egypt as the
aggressor tends to depend on your sympathy to either party in the
conflict.
President George W. Bush contended that the U.S. had to invade Iraq
not because the government knew Saddam Hussein was about to launch an
attack on America, but because it didn’t. Bush contended that
uncertainty
about Saddam’s weapons of mass destruction, augmented by 9/11′s
warnings of shadowy terrorist groups plotting undetectable attacks,
redefined “imminence” to mean the absence of dispositive proof refuting
the existence of an unconventional weapons program that
could be used in an attack. But when U.S. troops invaded, they learned that Saddam
did not possess what Bush aide Condoleezza Rice famously termed a smoking gun that could come in the form of a mushroom cloud.
The undated Justice Department white paper, a summary of a number of
still-classified legal analyses, redefines imminence once again.
al-Qaida leaders are “continually planning attacks,” the undated white
paper says, and so a preemptive attack “does not require the United
States to have clear evidence that a specific attack on U.S. persons and
interests in the immediate future.” Referencing the intelligence
failures preceding 9/11, the paper concedes the U.S. “is likely to have
only a limited window of opportunity within which to defend Americans.”
For an adversary attack to be “imminent,” and a preemptive U.S. response
justified, U.S. officials need only “incorporate considerations of the
relevant window of opportunity, the possibility of reducing collateral
damage to civilians, and the likelihood of heading off future disastrous
attacks to America.”
There’s a subtlety at work in the Justice Department framework. It
takes imminence out of the context of something an enemy does, and
places it into the context of a policymaker’s epistemic limitations.
“The U.S. government may not be aware of all al-Qaida plots as they are
developing and thus cannot be confident that none is about to occur,”
the white paper warns.
If there is a reasonable debate over what imminence means in an era
of terrorism, and what standards ought to be accepted for defining it as
an international norm, that framework preempts it. All that matters to
justify a drone strike attack is for the U.S. to recognize it can’t be
all-knowing. It’s the logical equivalent of the CIA’s signature strike,
which target
anonymous military-age males in areas where terrorists operate based on a presumption that their pattern of observed behavior is consistent with those of terrorists.
It would be one thing if Obama was talking about foreigners who
enlist in al-Qaida. But he’s actually talking specifically about
American citizens overseas who are “senior operational leader[s] of
al-Qaida or its affiliated forces” — people whom the Constitution
protects against the loss of life without due process of law. (The
Justice Department stops short of claiming the government can take such
lethal actions at home.) U.S. citizenship “does not immunize” such a
person from reprisal. Here the white paper does not define what it means
to be a “senior operational leader” of al-Qaida, let alone its
“affiliated forces,” and instead asserts the applicability of Supreme
Court precedent from World War II holding that U.S. citizens who joined
the Axis can be treated as enemy belligerents. (My WIRED colleague David
Kravets will have more on the specific legal claims Obama makes.)
To read this, you might think the U.S. faced an onslaught of treason. The data show otherwise. For the third straight year,
U.S. Muslim involvement in terrorism declined,
according to the Triangle Center on Terrorism and Homeland Security, to
the point where it’s assessed to be fewer than 10 cases in a million —
none of which resulted in anyone’s death. The few such cases that do
exist do not in any rigorous way describe “senior operational leaders”
of al-Qaida. The only American in al-Qaida’s senior cadre is
a Californian metalhead turned propagandist
named Adam Gadahn. The administration has asserted that Anwar
al-Awlaki, the American citizen who incited terrorism in YouTube clips,
was a senior operational leader of al-Qaida’s Yemen branch, but refuses
to provide evidence for the claim. Not only did the
U.S. kill Awlaki in a drone strike, it later killed
his 16-year old son Abdulrahman, whom it has never publicly claimed was a senior operational leader of al-Qaida.
Under the Obama administration, the decision to target members of
al-Qaida abroad, both foreign citizens and Americans, is made under a
regularized institutional process known by the shorthand of the
“disposition matrix.” One of its architects, White House
counterterrorism chief, John Brennan, will testify on Thursday ahead of a
Senate vote to confirm him as CIA director. Eleven senators, Democrat
and Republican,
wrote to the White House on Monday
requesting the full secret memos — plural — explaining the administration’s arguments for targeting Americans in drone strikes and commando raids.
Whether or not they receive the memos, the white paper asserts an
understanding of battlefield imminence that means little more than the
mere existence of al-Qaida, and unconstrained by protections for U.S.
citizens that the Constitution traditionally grants. Once the U.S. makes
that claim, so can others, creating pretext for further acts of war.
“The Justice Department’s legal arguments purportedly defending
targeted killing fundamentally misconceive the nature of self-defense,”
University of Notre Dame professor Mary Ellen O’Connell said in a
prepared statement. “It is a right to use military force against a
state that has or is about to launched a major military attack on the
United States. The 9/11 attacks led to a war of self-defense in
Afghanistan. That had all the hallmarks of legality. Contrast that use
of force with the CIA firing of missiles from drones at a single
individual and innocent bystanders in Yemen. You do not need to be an
expert in international law to understand the enormous violation of law
involved and the egregious conduct involved in attempting to exploit
lack of knowledge of the law to achieve political cover for targeted
killing.”
Written bySpencer AckermanAn MQ-9 Reaper drone taxies on the airfield at Fort Drum, New York, October 2011. Photo: U.S. Air Force. “Imminence” used to mean something in military terms: namely, that an adversary had begun preparations for an assault.
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