Just Calm Down About that DOJ White Paper

Editor’s Note: This piece originally appeared on



Lawfare



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Okay, everyone, take a deep breath. Chill out. The DOJ’s “White Paper” on targeted killing is no big deal. Really.

You wouldn’t know this from reading the somewhat breathless press coverage of the document, much of which offers a reasonable reader some confusion as to what the White Paper actually is.

The more responsible reporters have been reasonably careful. Michael Isikoff’s original story for NBC News calls the document a “confidential Justice Department memo,” and a “confidential Justice Department ‘white paper.’” Isikoff goes one to say that, “Although not an official legal memo, the white paper was represented by administration officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s Office of Legal Counsel.” Isikoff then says, rather more tendentiously, that the document authorizes the killing of U.S. citizens who are top operational Al Qaeda figures “even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.” This latter point is, to put it mildly, a stretch.

Charlie Savage and Scott Shane in the New York Times refer to the document as “[t]he unsigned and undated Justice Department ‘white paper.’” They note that,

The paper is not the classified memorandum in which the Justice Department’s Office of Legal Counsel signed off on the killing of Anwar al-Awlaki, a radical Muslim cleric who was born in New Mexico and who died in an American drone strike in Yemen in September 2011. But its legal analysis—citing a national right to self-defense as well as the laws of war—closely tracks the rationale in that document, as described to The New York Times in October 2011 by people who had read it.

The document, they write, “appears to be a briefing paper that was derived from the real legal memorandum in late 2011 and provided to some members of Congress.”

But to read some of the other stories on the subject, you might think that the Obama administration had crafted and released to the Hill a “White Paper” that staked out bold new ground on killing Americans. It hasn’t. What has happened, rather, is that a document has been leaked that tracks closely previous public statements by the administration and that adds marginal flesh to those statements in some respects.

Let’s start by clearing up what this document is and isn’t. In the wake of the Al Aulaqi strike, there were widespread calls for the release of the OLC memo proclaiming the strike legal. This produced, inside the administration, a discussion regarding what the administration could and could not release about that memo. There were, loosely speaking four possibilities: (1) say nothing, (2) give a speech, (3) release a white paper, and (4) release a redacted version of the memo itself. The interagency process being what it is, the real debate was between the second and third options. And ultimately, the speech idea prevailed. In a speech at Northwestern University last March, Attorney General Eric Holder laid out the case that the killing of a person like Al Aulaqi (though he did not address the case specifically) would be lawful under both international law and the U.S. Constitution—and that it would not violate the targeted person’s due process rights.

The White Paper, however, had been drafted, and while it was never released publicly, it was apparently given to people on the Hill. Like Holder’s speech, it tracks the OLC memo—and it goes into somewhat more detail on certain points than Holder did. But here’s the thing: It’s the same argument. Nobody who has read and understood Holder’s Northwestern speech can reasonably be surprised by anything about this document. The argument is old hat—and we have known for almost a year that this was the administration’s view.

Both Holder and the White Paper set forth three essential conditions for targeting a U.S. citizen in a foreign country, when that individual is a senior operational leader of al Qaeda or its associated forces. Both Holder and the White Paper make clear that there may be other circumstances under which targeting of citizens would be lawful and appropriate. But both argue that targeting is lawful at least if these three conditions are met. Holder elaborates less on each of these conditions, but his speech and the new document track very closely.

First, both Holder and the White Paper argue, the individual must pose an imminent threat of violent attack against the United States. Second, capture must not be feasible. And third, the operation must be conducted in a manner consistent with applicable law of war principles.

So what does the White Paper really add to Holder’s speech? The short answer is not all that much, a little bit of flesh on some bones here and there, but nothing—and we mean nothing—that fundamentally changes the argument.

Here’s what’s new:

Holder’s speech, as we noted, includes the condition that “capture is not feasible.” He notes that feasibility is a “fact-specific” and “time-sensitive” question. And according to Holder, the inquiry into feasibility is guided by assessing the window of opportunity to effectuate a capture before a terrorist attack takes place and the ability to do so without “undue risk to civilians or U.S. personnel.” The White Paper elaborates a little bit. It says that “capture would not be feasible if it could not be physically effectuated during the relevant window of opportunity or if the relevant country were to decline to consent to a capture operation” (emphasis added). The White Paper also adds a feature to this condition, noting not only that “capture [must be] infeasible” for a strike to be lawful, but that “the United States [must] continue[] to monitor whether capture becomes feasible.”  In other words, capture must not be feasible in the immediate moment, and there must be some ongoing assessment of the potential for capture as time goes on. Later, in discussion of the applicable laws of war, the White Paper also states that the United States would be “required to accept a surrender if it was feasible to do so.” So there’s a little added texture on the feasibility of capture question.

The White Paper adds a little more to Holder’s speech on the imminence requirement. This section of the paper has generated a lot of criticism from commentators like Kevin Jon Heller and Jameel Jaffer. But whether one agrees with these critics or not, the White Paper’s position should, again, come as no surprise. Holder, after all, said back in March:

The evaluation of whether an individual presents an “imminent threat” incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States. As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice—and to cause devastating casualties. Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military—wearing uniforms, carrying arms openly, or massing forces in preparation for an attack. Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning—when the precise time, place, and manner of an attack become clear.

This clearly suggests a more relaxed conception of “imminence” than the immediate temporal implications of the word itself might suggest. And that was well understood at the time Holder gave his speech, both by critics and by defenders of the administration’s position. The White Paper fleshes out this point a little, stating clearly that “imminent threat” includes the operational leader who is “continually planning attacks”:

By its nature, therefore, the threat posed by al-Qa’ida 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. In this context, imminence must 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 on Americans. Thus, a decision maker determining whether an al-Qa’ida operational leader presents an imminent threat of violent attack against the United States must take into account that certain members of al­ Qa’ida (including any potential target of lethal force) are continually plotting attacks against the United States; that al-Qa’ida would engage in such attacks regularly to the extent it were able to do so; that 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; and that, in light of these predicates, the nation may have a limited window of opportunity within which to strike in a manner that both has a high likelihood of success and reduces the probability of American casualties.

Given this reality, the White Paper concludes, an operational leader of Al Qaeda may be considered to pose an imminent threat if he,

is personally continually involved in planning terrorist attacks against the United States. Moreover, where the al-Qa’ida member in question has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qa’ida’s continuing terrorist campaign against the United States would support the conclusion that the member poses an imminent threat.

This is hardly a revolutionary advance over March. Indeed, it’s exactly what a reasonable person would have understood the government’s position to be based on Holder’s speech.

What else is new in the White Paper? Holder’s speech does not go into the War Crimes Act or 18 U.S.C. § 1119(b), forbidding the killing of U.S. nationals abroad. The White Paper devotes a section to each, explaining why the targeting of an American citizen who is an operational leader of Al Qaeda would not violate either. Moreover, Holder doesn’t spend time on the Fourth Amendment issues targeting killing might be said to raise—which the White Paper also treats. And while he talks in broad terms about due process, he does not go into the Matthews v. Eldridge analysis that the White Paper undertakes and that Steve critiqued earlier this evening.

But these are not the issues on which the press, or the administration’s critics, are focusing on. And the truth is that the issues that have grabbed all the headlines over the past 24 hours—the claimed authority to kill U.S. citizens under a very narrow set of circumstances—involve only the most incremental advances over what the administration has previously said.