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?
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