What Does the Justice Department Say about Targeted Killings?

In case you missed it, last night, NBC News published a Justice Department white paper detailing the criteria the administration uses to decide if it will kill Americans who belong to al-Qaeda as senior leaders. National security is not my area of expertise, but several reporters have already given excellent takes on the memo and its implications.

Writing at The Week, Mark Ambinder gives a short run-down of the white paper. In it, the administration’s lawyers detail the standards that must be met before the president can authorize a targeted killing. First, Ambinder writes, “‘An informed, high-level official’ must determine that the person represents ‘an imminent threat’ of ‘violent attack against the United States.’” Second, “Capturing the dude is ‘infeasible,’ and the government will continue to assess whether capturing him is feasible.” And finally, as almost an aside, “The killing, or ‘lethal operation,’ must be conducted according to the laws of war.”

Writing for Wired’s Danger Room blog, Spencer Ackerman explains the administration’s new, expansive definition of “immenence”:

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.”

The problem, as Ackerman notes, is that this definition “takes imminence out of the context of something an enemy does, and places it into the context of a policymaker’s epistemic limitations.” Because the United States can’t know that al-Qaeda isn’t planning attacks, it can’t be confident that none are not going to occur. If this sounds like a justification to kill any American deemed an al-Qaeda member, that’s because it is.

And at her blog, Marcy Wheeler reminds us that these are just the arguments presented to Congress, and not the actual memos used to authorize the killing of Anwar al-Awlaki and others. Those are still hidden from public view. What’s more, odds are best that they’re even more expansive than what we’ve seen. As she puts it, “this white paper holds out the possibility that there may be other circumstances, other lesser requirements fulfilled, that would still allow the president to kill an American citizen. And that, I fear, is what is in the real memos.”

For those interested in limiting the administration’s use of targeted killings and drone strikes, the politics of this are not good. Most Americans are unconcerned with the means used to pursue our national security goals, and civil libertarians are a minor force in electoral politics. Neither party is particularly amenable to limiting the national security state, and the GOP continues to attack the Obama from the right, with an emphasis on more force and more belligerence.

It’s a bad situation, and as far as Obama’s actions go, it’s probably worse than it looks.