The administration of President Barack Obama—in particular, the Justice Department—maintains the targeted killings of United States citizens believed to be members of al Qaeda is legal. A leaked white paper that NBC News provides a glimpse at the cold calculus behind the justification for such operations.
The white paper, which was provided to US senators as a substitute for a copy of an actual Justice Department memo, also claims such operations are permissible under international law. In fact, the Justice Department’s position is that any use of lethal force is permissible against any person the government believes is a member of al Qaeda or its affiliates because the United States has an Authorized Use of Military Force (AUMF) that was signed after the September 11th attacks. The Department thinks this gives the government a nearly limitless and open-ended authority to attack anyone it deems to be an “imminent threat.”
According to the Justice Department’s white paper, “The threat posed by al Qaida and its associated forces demands a broader concept of imminence in judging when a person continually planning terror attacks presents an imminent threat, making the use of force appropriate.” A “decision maker” cannot know all the al Qaida plots being planned at any one moment and, as a result, “cannot be confident” no plots are about to occur. There may be a small window of opportunity to take action. And so, the United States does not need to have “clear evidence that a specific attack on US person and interests will take place in the immediate future” to attack a target.
There is absolutely no way the targeted killing program can operate under these incredibly authoritarian presumptions and reasonably considered to follow international law.
UN special rapporteur on counterterrorism and human rights Ben Emmerson, who has launched an investigation into the use of drones and targeted killings by countries for the purposes of fighting terrorism, does not appear to think the US is abiding by international law.
In a statement announcing the investigation, he declared:
…There are those who contend that outside situations of recognized international armed conflict, the applicable framework is international human rights law, under which it is unlawful to engage in any form of targeted killing. The standards set out in 3 Covenant on Civil and Political Rights, and particularly the provisions of Article 6, which protects the right to life, permit the use of lethal force only where it is strictly necessary as a matter of immediate self-defense. Under this analysis States wishing to take action against suspected terrorists located outside a recognized situation of international armed conflict must first try to effect an arrest, and may use lethal force only if the person they are seeking resists arrest and it proves strictly necessary to use firearms.
At the other end of the spectrum the analysis that has been promoted by international lawyers in the United States, and by John Brennan, President Obama’s nominee to head the CIA, to the effect that Western democracies are engaged in a global [war] against a stateless enemy, without geographical boundaries to the theatre of conflict, and without limit of time. This analysis is heavily disputed by most States, and by the majority of international lawyers outside the United States of America. [emphasis added]
Yet, the Justice Department’s white paper contends the targeted killing program is compliant with international law.
The paper primarily cites Article 51 of the UN Charter, which states that nothing shall “impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
Justice Department lawyers are significantly manipulating the language of Article 51 to make it justify the killing of people the government wants eliminated. It would seem the Security Council needs to be involved in the process of the United States going after al Qaida if it is going to invoke Article 51. The section states, “Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
Also, as the targeted killing program is a mostly unilateral program in the sense that it is the United States primarily determining who is ultimately killed, it would seem this is an affront to all the values the United Nations attempts to promote. The targeted killing program does not unite countries in efforts to “maintain international peace and security.” It does not help to affirm the “fundamental human rights” of anyone in the world to go around assassinating individuals without giving them notice by convicting or charging them for committing a crime. It has more potential to divide the world than bring countries together in cooperation because it endorses a future where countries deploy robots to go take out “enemies” in any country whenever they want without notifying countries before they launch attacks.
The Justice Department invokes Common Article 3 of the Geneva Conventions because it believes that the US is in an armed conflict that is “not of an international character.” The white paper says, “Any US operation would be part of this non-international armed conflict, even if it were to take place away from the zone of active hostilities.”
It proceeds to argue, “The Department has not found any authority for the proposition that when one of the parties to an armed conflict plans and executes operations from a base in a new nation, an operation to engage the enemy in that location cannot be part of the original armed conflict, and thus subject to the laws of war governing that conflict, unless hostilities become sufficiently intense and protracted in the new location.”
Where does the Justice Department get this understanding? It comes from John R. Stevenson, who served as a legal adviser to the State Department and addressed “questions of international law” when the US waged military action in Cambodia. The United States customarily violated international law through carpet bombings of Cambodians to go after the “enemy” and, because the administration of President Richard Nixon developed legal justification for expanding the war into a second country, the Obama administration is using this to argue the targeted killing program abides by international law.
Finally, the Justice Department contends that operations would be “consistent with international legal principles of sovereignty and neutrality” if they were conducted with the consent of the host nation or if it was determined “the host nation is unable or unwilling to suppress the threat posed by the individual targeted.” The targeting of a US citizen would be permissible under the AUMF or Article 51 of the UN Charter.
That can be interpreted to mean, for example, if Pakistan, Somalia or Yemen does not wish to target individuals that the government believe pose a threat to America, it can launch drone strikes against them without the approval of the government. If the “host” is “unwilling,” attacks would be acts of war. The country would be harboring terrorists and the US government would be obligated to obtain a declaration of war to continue strikes (of course, the government wouldn’t because no president follows the War Powers Act anymore).
Here is what Human Rights Watch has to say on when “international human rights law permits the use of lethal force outside of armed conflict situations if it is strictly and directly necessary to save human life.”
…In particular, the use of lethal force is lawful if the targeted individual presents an imminent threat to life and less extreme means, such as capture or non-lethal incapacitation, are insufficient to address that threat. The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provides that the “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.” This standard permits using firearms only in self-defense or defense of others “against the imminent threat of death or serious injury” or “to prevent the perpetration of a particularly serious crime involving grave threat to life” and “only when less extreme means are insufficient to achieve these objectives.” Under this standard, individuals cannot be targeted for lethal attack merely because of past unlawful behavior, but only for imminent or other grave threats to life when arrest is not a reasonable possibility. [emphasis added]
The targeted killing program does not appear to adhere to international law. The Justice Department knows that, which is why it lifted phrases from actual tenets of international law and cited historical analysis of legal questions offered to excuse massive war crimes. That was the best it could do to piece together some kind of argument that it it is legal.
Moreover, the Justice Department’s assertion it can preemptively attack individuals out of “self-defense” is as questionable as the claim Bush made that Iraq posed an “imminent threat” and needed to be attacked out of “self-defense.” Both twist international law to provide cover for the inevitable commitment of atrocities. And, in the end that may not be surprising because, like the justification for war in Iraq, the justification for targeted killings is intended to make normal the use of state-sanctioned murder to further the agenda of American empire.