Death by Loophole

Obama's legal rationale for whacking Americans is so broad you could fly a drone through it.

"Tell me how this ends," asked General David Petraeus in 2003. He was speaking of the war in Iraq, which was born out of faulty intelligence and faultier strategic logic, and spiraled rapidly out of control. Today we know the answer to Petraeus's question: The war ended with tenuous stability for Iraq -- won at the price of some 4,500 dead Americans, an unknown but much higher number of dead Iraqis, roughly a trillion dollars in direct costs, and incalculable damage to the United States' global reputation. By 2012, two-thirds of Americans were convinced the war in Iraq hadn't been worth it.

But Petraeus might just as well have asked his famous question of a different war -- not the war in Iraq, which he's often credited with salvaging, or even the war in Afghanistan, which he later struggled to turn around, but the covert drone war over which he presided during his brief tenure as director of the CIA.

The drone war is a shadow war, widely reported in the media but officially unacknowledged by the CIA and the White House. Many details remain obscure, but we know that the United States has engaged in "targeted killings" in Pakistan, Yemen, and Somalia, and possibly in Mali and the Philippines as well. The killings -- most reportedly carried out by strikes from unmanned aerial vehicles -- have targeted suspected Taliban leaders and terrorists, some identified by name and some targeted as a result of a suspicious pattern of activities. Since the strikes are rarely acknowledged, no one knows precisely how many casualties our shadow war has caused, but media and NGO reports suggest that the number of deaths is somewhere between 3,000 and 5,000.

Although many details remain unknown, we now know a little bit more than we used to about the Obama administration's legal rationale for this shadow war. Monday night, NBC News released a 2011 Justice Department white paper on the question of whether U.S. citizens overseas can be targeted. In the process of examining that question, the paper also offers the most detailed legal theory we've yet seen for the shadow war more generally.

The document is 16 pages long and full of legalese, so here's the CliffsNotes version. If you were worried about whether it was okay for the U.S. government to secretly kill an American citizen overseas, you can relax: The Justice Department says such killings are hunky dory, as long as some "informed, high-level official" decides that citizen poses an "imminent threat" and capture would be "unfeasible."

Like many legal documents, this one does fine on its own terms, but looks a lot less satisfying when taken out of its hermetically sealed legal universe. In other words, it's all tree, no forest -- and it nicely illustrates the fact that "legality" is not the same as morality or common sense.

Let's take the white paper's key claims one by one. In and of themselves, each appears uncontroversial -- but the sum of the parts amounts to a recipe for legally sanctioned error and abuse. (Caveat: This is a quick analysis based on an initial quick read of the memo. If a closer and more careful read suggests any errors in my analysis, I will post a revised version of this column later.)

1. American citizens overseas can lawfully be targeted and killed by the U.S. government if they take up arms in an armed conflict against the United States. True, and uncontroversial under the law of war (and under U.S. law), as far as that goes. American citizens who joined the German army during World War II could be captured or killed just like any other German soldier.

But here's the problem. This isn't World War II. When the "enemy" (not just a few of the enemy, but all of the enemy) wears no uniform and appears on no traditional battlefield -- when there's substantial disagreement about what it means to be a "combatant," a "belligerent," or to "participate in hostilities" -- stating the legal principle that even U.S. citizens can be targeted if they join the enemy in a war against the United States tells us nothing whatsoever.

It restates a legal truism, without offering any criteria for determining who's an enemy beyond stating that U.S. citizens who are "senior operational leaders of Al Qaeda and its associated forces" are targetable anywhere on the globe. But what's a "senior operational leader"? How is that defined? How many "senior operational leaders" are out there?

And what's an "associated force" of al Qaeda? That's not defined either. For that matter, no criteria are offered for determining whether or not there's an armed conflict in the first place. Is the United States in an armed conflict with, for instance, al Shabaab in Somalia? Is al Shabaab an "associated force" of al Qaeda?

2. Anyone overseas -- citizen or not -- who poses an "imminent threat of violent attack" against the United States can be lawfully targeted based on the internationally recognized right to national self-defense, provided that the defensive force used by the United States is otherwise consistent with law of war principles. Again, uncontroversial, as far as it goes: if someone overseas is about to launch a nuclear weapon at New York City, the United States has a perfect right (and the president has a constitutional duty) to use force to prevent that attack, regardless of the attacker's nationality.

But once again, the devil's in the details. To start with, what constitutes an "imminent" threat? Traditionally, both international law and domestic criminal law understand that term narrowly: to be "imminent," a threat cannot be distant or speculative. To the Justice Department, however, "distant and speculative" are apparently perfectly consistent with "imminent": According to the white paper, the requirement of imminence "does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future." On the contrary, since "certain members of al Qaeda are continually plotting attacks...and would engage in such attacks regularly [if] they were able to do so, [and] the US government may not be aware of all... plots as they are developing and thus cannot be confident that none is about to occur," the United States can, in effect, target anyone deemed to be an operational leader of al Qaeda or its "associated forces." In effect, the concept of "imminent threat" becomes conflated with identity: Under this definition, any "operational leader" of al Qaeda or its "associates" is, by definition, an imminent threat.

That concept of imminence is as squishy as they come. What's more, although the DOJ paper notes that the use of force to prevent imminent threats of violent attacks must comply with general law of war principles of necessity, proportionality, humanity, and discrimination, it offers no guidance on how to determine if a use of force is "necessary." From a traditional international law perspective, this inquiry relates both to imminence and to the gravity of the threat itself: no one would quibble over the necessity of a drone strike targeting a terrorist about to launch a nuclear weapon aimed at New York, for instance, but a drone strike targeting a teenager about to throw a rock at a U.S. embassy would strike most people as overkill.

Here again, the DOJ document leaves the most important questions unanswered: Is any threat of "violent attack" sufficient to justify killing someone in a foreign country, including a U.S. citizen? Is every potential suicide bomber targetable? Are we justified in drone strikes against targets who might, if they get a chance, place an IED that might, if successful, kill one person? Two people? Twenty? Two-thousand? How grave a threat must there be to justify the use of lethal force against an American citizen abroad -- or anyone else, for that matter? Strategically -- as well as legally -- it would be nice to see some suggestion that the use of lethal force on foreign soil should be restricted to circumstances in which the threat of violent attack is both imminent and extremely serious. But don't look to this document for guidance.

3. Killing is okay if capture is not feasible. Again, fine as far as that goes -- but as ever, how do we define "feasible"? What level of risk should be borne before a U.S. citizen (or anyone) is killed in circumstances that permit him no opportunity to surrender, and no opportunity to offer evidence that he has been erroneously targeted? Who determines when capture is "feasible"?

4. The determination of whether an American citizen overseas can be killed can be made by "an informed, high-level official of the US government." Okay, would that be the president? The CIA director? The secretary of defense? The head of Centcom? The head of JSOC? An Air Force colonel? A GS-15 who works for the director of national intelligence? What's the chain of command here? And is one "informed, high-level official" enough? What if other officials disagree? What if that high-level official's information is wrong (cf. Iraq WMD)? What if the information is correct but the high-level official draws the wrong inferences from it? What if the high-level official abuses his power?

5. This logic poses no threat to international legal principles of sovereignty because it's okay to use force inside a foreign sovereign state if that state either consents or is "unwilling or unable to suppress the threat posed by the individual being targeted." This sounds reasonable until you realize it's completely circular. I'll restate the principle to demonstrate the circularity: Using force inside the borders of a foreign sovereign state is acceptable if the foreign state consents. If the state doesn't consent to a U.S. strike but "an informed, high level official" of the U.S. government believes an individual in the non-consenting state poses an imminent threat of violent attack, then -- by definition! -- the foreign sovereign state can be deemed "unwilling or unable" to suppress the threat itself, in which case, you guessed it, the use of force is also acceptable.

6. Checks and balances are for your bank statement, not for the U.S. government. After raising -- and quickly rejecting -- potential constitutional arguments against the targeting of U.S. citizens overseas, the DOJ paper concludes happily that "there exists no appropriate judicial forum to evaluate these constitutional questions." That's because "matters intimately related to foreign policy are rarely proper subjects for judicial interventions," and such matters "frequently turn on standards that defy judicial application."

This is restating the problem nicely: the standards put forth in the memo are effectively standardless. They consist of sweeping generalizations about legality, but offer no criteria for actually determining legality (or necessity, or strategic wisdom, needless to say).

But that's not a reason to reject any notion of judicial review -- it's the very reason some sort of review outside the executive branch is essential. When you have a secret, standardless process that may result in the killing of U.S. citizens, it would be comforting to have some sort of review mechanism. Ideally, it would be good to have some disinterested , informed people looking at the evidence before kill decisions are made -- and this is far from unfeasible. A judicial warrant procedure like that put in place by the Foreign Intelligence Surveillance Act could be established by Congress. Failing that, an ex post review could at least highlight abuse and error, and reduce the likelihood of further error or abuse.

I've written before about strategic and rule of law problems posed by targeted killings (some might say I'm droning on about them). I won't reiterate those concerns here in detail, but let's review the bottom line: This Justice Department memo tells us that our government believes itself legally justified in secretly killing any person (citizen or not), at any time, anywhere, based on a concept of imminence that includes distant and speculative threats and also appears to include even relatively trivial threats, rather than only grave or existential threats. The definition of "enemy" is squishy, and kill decisions can be made by unidentified officials who need not reveal their information, its sources, or the criteria used in their decisions. Sovereignty poses no barriers to U.S. strikes, and no one outside the U.S. executive branch can review any killings before or after they take place. Oh, yes -- and the administration officially won't even acknowledge the existence of the targeted killing program.

I'm not inherently opposed to drone strikes or other targeted killings. I'm ready to believe that some targeted killings can be justified, legally, morally, and strategically, and I'm inclined to think that when a practice is exceptional and genuinely rare, issues of legality and the rule of law may be less urgent. But U.S. targeted killings long ago ceased to be exceptional -- they've now become the norm, part of the new American way of war, and we can't afford to let them remain in the legal and moral shadows.

So here's what I want the Obama administration to tell me:

Tell me if this shadow war has any limits, and how those limits will be enforced. Tell me what safeguards there are against abuse. Tell me how I can be confident that the targeted killing process isn't rife with error and abuse. Tell me how many targeted killings equal a war. Tell me if we'll be expanding our shadow war into additional foreign states. Tell me if there's any limit at all on who we can target, and when, and where. Tell me our objectives in this shadowy war. Ending the operational effectiveness of al Qaeda? Ending terrorism? Reducing anti-American violence? Tell me how we'll know if we're achieving our objectives. Tell me if our shadow war is making us safer, or just making our world less stable.

Tell me how this ends.

U.S. Air Force photo by Tech. Sgt. Efren Lopez

National Security

The Contagion Effect

Is the media fueling military suicides?

Earlier this month, the Associated Press reported a grim statistic: the number of military suicides rose to 349 in 2012, with suicides substantially exceeding the number of combat deaths. The military suicide rate has gone up greatly over the last decade: in the Army, the suicide rate is now roughly 30 per 100,000, almost triple the rate of suicide in the population as a whole.

Media stories paint a picture of crisis: military suicide is at "record highs," an "out of control" "epidemic" that's spreading "like an airborne disease." It can certainly feel that way at times. During a recent weekend at Fort Carson, for instance, one young soldier attempted suicide, another took his own life, and a third threatened to kill himself, but was eventually persuaded to give up his weapon.

All this within a single brigade -- and though it was a rough weekend, it wasn't entirely atypical. For every suicide in the military, there are several other service members who attempt suicide, threaten it, or tell friends or superiors they're contemplating it. The result is a grim litany of "serious incident reports" moving up the military chain of command, documenting a phenomenon that is as baffling as it is tragic.

There's no dearth of suicide prevention programs in the military. In recent years, DOD has launched or reinvigorated an ambitious and wide-ranging array of programs: there are suicide prevention stand-down days, suicide hotlines, "mental fitness" programs, and programs aimed at reducing the perceived stigma of seeking mental health help. In June 2012, Secretary Panetta noted that DOD had increased the number of behavioral health experts by 35 percent over three years, and suicide prevention has become a preoccupation at every level in the chain of command. Yet despite all these efforts, the military suicide rate remains stubbornly high, and keeps getting higher.

Is it possible that many of our well-intentioned efforts to prevent suicides in the military are actually having the opposite effect?

The phenomenon of "suicide contagion" or "imitative suicide" has been recognized for years. The most famous (though possibly apocryphal) example dates back to 1774, when 24-year-old Johann Wolfgang von Goethe published The Sorrows of Young Werther.

The story chronicles an unhappy love affair that culminates in the suicide of the protagonist. "See, Charlotte, I do not shudder to take the cold and fatal cup....With cold, unflinching hand I knock at the brazen portals of Death," proclaims Werther, having decided that death is the only honorable solution to his love for a married woman.

A classic of early German romanticism, the book was an immediate sensation when it was published in 1774. Rather too much of a sensation: throughout Europe, "Werther Fever" broke out, and young men and women dressed like Werther and swapped pirated copies of the slender volume. According to legend, the book also led to an outbreak of Werther-inspired suicides -- so many that authorities in Leipzig and Copenhagen banned the book altogether.

Historians are still debating the evidence of a Werther-inspired European suicide epidemic. But though we may never know how many suicides were truly inspired by Goethe's morbid little melodrama, we know today that the phenomenon of "suicide contagion" is real. Numerous studies have demonstrated that one suicide within a community can spark others.

The mechanisms of suicide contagion are not well understood, but there's substantial evidence that the media plays a major role as a suicide vector. A 2008 World Health Organization report is unequivocal: "Over 50 investigations into imitative suicides have been conducted. Systematic reviews of these studies have consistently drawn the same conclusion: media reporting of suicide can lead to imitative suicidal behaviours."

This does not mean that the media should not report on suicide, of course. Suicide -- and changes in suicide rates within particular subgroups -- is legitimately of interest to the public, and it would be irresponsible for media outlets not to report on military suicide rates. But studies suggest that a great deal depends on just how suicide is covered.

According to the World Health Organization, the likelihood of imitative suicides resulting from media coverage varies, depending in part on "the amount and prominence of coverage, with repeated coverage and ‘high impact' stories being most strongly associated with imitative behaviours. It is accentuated when the person described in the story and the reader or viewer are similar in some way....Particular subgroups in the population (e.g., young people, people suffering from depression) may be especially vulnerable to engaging in imitative suicidal behaviours... [and] overt description of suicide by a particular method may lead to increases in suicidal behaviour employing that method."

The plenitude of studies documenting a media version of "the Werther effect" have led many organizations to promulgate "best practices" for media reporting on suicide. The National Institute for Mental Health (NIMH), for instance, urges media organizations to avoid "Big or sensationalistic headlines, or prominent placement" of stories about suicide, and avoid using such terms as "epidemic," "skyrocketing," and so on when discussing suicide trends. Similarly, the World Health Organization warns that "Prominent placement and undue repetition of stories about suicide are more likely to lead to imitative behaviours than more subtle presentations."

NIMH also urges media to avoid "Including photos/videos of the location or method of death, grieving family, friends, memorials or funerals," since this can both lead others to identify more with the suicide victim -- thus increasing the likelihood of copycat behavior -- or lead people to focus on the idea that suicide will lead to positive attention ("After I'm gone, they'll finally appreciate me..."). The CDC concurs, noting that "News coverage is less likely to contribute to suicide contagion when reports of community expressions of grief (e.g., public eulogies, flying flags at half-mast, and erecting permanent public memorials) are minimized. Such actions may contribute to suicide contagion by suggesting to susceptible persons that society is honoring the suicidal behavior of the deceased person..."

So, how's the U.S. news media doing when it comes to reporting on suicide in the military?

Not so good.

Take this recent National Public Radio story. It flies in the face of the recommended best practices, offering details on the how and where (a soldier "was found dead in a west Tennessee motel room with a self-inflicted gunshot wound to the head") and highlighting his relatives' ongoing displays of devotion ("I wear his dog tags every day," his widow is quoted as saying).

Or consider this lurid piece from The Colorado Springs Gazette, which quotes extensively from the Facebook suicide messages of a Fort Carson soldier who appears to have died in a self-inflicted vehicle crash. Or this piece from the Minneapolis Star Tribune, also quoting extensively from the victim's suicide notes, and suggesting the victim was "driven" to suicide by disciplinary action taken against him by his superiors.

There are many responsible news stories about military suicide too, but you get the idea. Even as media stories suggest that DOD is "not doing enough" to prevent suicides, many of those very same media outlets are reporting on suicide in a way that may make the problem worse.

But let's take this a step further. Just as it seems reasonable to ask whether intensive media coverage could be a contributing factor in rising military suicide rates, it also seems worth considering whether DOD's own intensive focus on suicide prevention might be having have a similarly unintended effect.

On Fort Carson, for instance, as it any other large military installation, it's hard to get through a day without seeing the word "suicide" over and over. News of suicide prevention stand-down days is posted on bulletin boards and written up in newsletters; posters highlight suicide prevention resources. At Fort Carson's main gate, a neon sign flashes the word "SUICIDE" in foot-high red letters. (I'm pretty sure the sign said "Prevention Week" in smaller letters down below the word "suicide," but even driving past at a sedate 15 miles an hour, "suicide" was the only word that registered.)

I spoke to Commander Steven Bartell, Deputy Director of DOD's Suicide Prevention Office, and asked if he was concerned about the potential for imitative suicides. "There are a lot of precipitating factors" for suicide, he said, and "it's hard to say what are the major contributing causes.... But all that being said, is there a potential for contagion? The obvious answer is yes."

In practice, it's virtually impossible to assess whether any "contagion effect" resulting from suicide prevention programs themselves is negligible or substantial. But in theory, said Bartell, "Even trying to raise awareness can put a thought there that wasn't there before....It's a challenge."

It is indeed. How do you raise awareness of suicide prevention resources when talking about suicide may, in and of itself, increase the prevalence of suicide? "There may be a Catch-22 here," Commander Bartell observes ruefully.

Is there any way out of that Catch-22? I don't know, and the experts don't know, either. But here are a few ideas.

For one thing, the media could do a better job of self-policing when it comes to stories on suicide, and DOD could do a better job of ensuring that reporters are aware of public health guidelines on suicide reporting. DOD public affairs officials say that though they conduct internal training on how to discuss suicide responsibly, concerns about being perceived as trying to stifle press freedom mean they don't systematically push such information out to reporters.

I think that's a mistake: there's nothing in the First Amendment that says DOD can't hand out copies of the World Health Organization's recommended media guidelines to reporters asking about suicide in the military. Some media outlets will ignore the recommendations, but at the moment, many reporters are unaware that there's even an issue.

DOD could also do more to increase awareness of suicide contagion within the military, perhaps developing internal program guidelines on how to reduce the likelihood of imitative suicide, similar to those other organizations have developed for the media. While we don't have much solid information on whether suicide prevention efforts carry their own contagion risks, there's enough evidence of contagion resulting from media stories to suggest that DOD should err on the side of caution in its own programs.

That doesn't mean eliminating suicide prevention programs, of course -- ignoring the issue most certainly won't make it go away. But it does suggest increased care in the use of the term suicide, as well as training for caregivers, leaders, and gatekeepers in how to talk about suicide without inadvertently contributing to the problem of imitative suicides.

Overall, we know dismayingly little about what constitutes an effective suicide prevention program, but research suggests that problems with alcohol, drugs, depression, mental illness, finances, and relationships can all be risk factors for suicide. Studies also suggest that service members often lack the concrete skills needed to access behavioral health and other resources, making it less likely that they will seek help even when helpful resources exist.

What this implies is that you don't necessarily need to label something a "suicide prevention program" for it to have a suicide prevention impact. Indeed, it may well be that many of the most effective suicide prevention tools never use the word "suicide."


For more information on suicide best practices, see this 2011 RAND report and this 2012 report from the Military Suicide Research Consortium. You can find CDC media guidelines on reporting on suicide here, NIMH guidelines are here, and the WHO guidelines are here. You can get more information on DOD suicide prevention programs here. If you or someone you know is in crisis, call DOD's suicide prevention hotline: Dial 1-800-273-8255 and press "1."

Capt. Tony Vincelli/DVIDS