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Wednesday, February 6, 2013

Thoughts on the White Paper

Adding to the already substantial corpus of public reaction to the recently released DOJ White Paper on Targeted Killing of US citizens, here are my reactions:

First, several news outlets are erroneously describing the white paper as being the Office of Legal Counsel memorandum drafted by David Barron and Marty Lederman at the Department of Justice.  As the New York Times explains, the document probably isn't.  Rather, it is more likely a summary document, based on the Barron and Lederman memorandum, that was prepared by the Justice Department for dissemination to various members of Congress and their staff who were briefed by Executive Branch officials.  This account rings true to me, because I don't believe that anyone in the Justice Department would have leaked the original memorandum.  If they were willing to leak the original memorandum, it would have been leaked before.

Why was it leaked?  And why wasn't it disclosed earlier?  These are complicated questions.  Some conspiracy theorists think the White Paper was leaked now to add fuel against CIA Director-nominee John Brennan at his confirmation hearings.  This sounds like a plausible rationale although I have no idea if it is true.  The more complicated question is why the Office of Legal Counsel never released either the White Paper or the underlying memorandum before.  It is not classified, and the document was clearly relevant for several past litigations that were filed against the Administration.  Is the document protected by attorney-client privilege?  In January, U.S. District Court Judge Colleen McMahon held that the attorney-client and deliberative process privileges protected the document from release.  However, that didn't stop McMahan from discussing at great length -- in dicta -- the potential illegalities of the Administration's Targeted Killings program.  Indeed, it was a rare instance of a federal judge making broad pronouncements about the law that had no direct bearing on the legal outcome of the case at bar.

As for the substance of the DOJ White Paper, several observations come to mind:

First, the White Paper appears to hedge on whether the Administration can rely on the fact that there is an armed conflict with al-Qaeda -- and that this armed conflict justifies the killing of members of the terrorist network.  Simply put, if you accept this rationale, which has been announced before by Harold Koh while he was at the State Department, then much of the analysis in the White Paper appears unnecessary.  For example, the paper discusses the duty to capture at great length and concludes that targeted killings against US civilians are only acceptable if capture is not feasible.  But as I explain in my forthcoming article "The Duty to Capture," no such requirement exists in the Laws of War.  So where is it coming from?  Maybe from the Fourth Amendment of the U.S. Constitution, I suppose, although no court has ever applied Fourth Amendment principles to targeting during an armed conflict. Indeed, the White Paper engages in a Fourth Amendment balancing analysis, citing the famous Mathews v. Eldridge, 424 U.S. 319 (1976), but the Supreme Court has never applied the Mathews balancing test to targeting decisions during armed conflict.  The closest analogue is Hamdi, 542 U.S. 507 (2004), but that was a detention case -- not a targeting case.

Second, the White Paper concedes that imminence is required for these strikes to be lawful.  There has been much discussion online and in the newspapers about the white paper's interpretation of the imminence requirement, though less attention has been paid to the source of the imminence requirement, which isn't clear.  Does it stem from jus ad bellum, i.e. the public international law requirement that self-defense under the U.N. Charter requires the existence of an imminent attack?  Perhaps so (and the White Paper does indeed cite Article 51 of the Charter), but during the course of an armed conflict that is itself justified under article 51, does every strike need to be justified by imminence?  Arguably not, since during an armed conflict an attacking force may strike an opponent's military force even if that force is not posing an imminent threat.  That's the whole point of classifying a situation as an armed conflict.  The conflict as a whole must be justified by article 51, but must every sortie flown by an airplane satisfy the imminence requirement?  Presumably not.  

Perhaps the imminence requirement comes from international human rights law.  That's another possibility, although the official US position is that the US is not bound extra-territorially by its international human rights commitments such as the International Covenant on Civil and Political Rights.  In other words, according to official US positions, these treaties only apply to government conduct within the country.  So it is unlikely that the U.S. government would argue that imminence is a necessary requirement of human rights law in this context.

Third, the longest section of the White Paper deals with whether the federal statute prohibiting murder incorporates the "public authority justification" -- a legal defense that would transform the killing from an unlawful killing to a lawful one because it was performed pursuant to an action by a government official. Although the White Paper correctly cites the Model Penal Code as including wartime killings within the definition of the public authority defense, I think the Model Penal Code is wrong on this point. So although the White Paper's framing of this point is understandable, I would have framed the issue differently.

The correct solution is to instead recognize that under bedrock principles of the laws of war, which are incorporated into federal common law, killing with the privilege of combatancy is not an unlawful killing at all.  This has nothing to do with any "public authority justification."  Indeed, no legal defense is required for wartime killings against legitimate targets.  Rather, such killings are based on the privilege of combatancy which exists only during times of armed conflict, and the fact that under the laws of war, killing an enemy combatant is not a crime.  So again this goes back to whether the Administration really takes seriously that this is indeed an armed conflict with al-Qaeda.  If it does, then the international laws of war preempt the domestic criminal laws that define murder.  And that fact, and that fact alone, explains why the federal law prohibition against murder does not apply to targeted killings.

Of course, this then requires an exhaustive analysis of whether Aulaqi was a combatant or not.  The only way to make this argument is to invoke the contemporary notion of exercising a "continuous combat function" (CCF) in an organized armed group.  This notion was first laid out by the International Committee of the Red Cross in its "Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law."  Strangely, though the White Paper cites this document, it neither mentions nor critically analyzes the CCF standard. 

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