Small Wars Journal

Justice Department Memo Evidences Confusion

Fri, 02/08/2013 - 7:41pm

The preliminary narrative surrounding the Justice Department’s white paper on targeted killing obtained by NBC News is marked by breathless consternation over the leeway it provides to administration officials.

The American Civil Liberties Union (ACLU) has described the memo as “a chilling document” and decried “the irresponsible extravagance” of the government’s claim to lawfully engage in the extrajudicial killing of American citizens. Legal scholars have panned the analysis as giving the White House cover to act as “judge, jury, and executioner.”

The document, however, is less chilling than confused. It is the work not of sanguinary enablers, but of constitutional lawyers who appear to lack familiarity with the laws of war.

The white paper is a bundle of contradictions. It asserts that the United States is in an armed conflict with al Qaeda and its associates, and that this armed conflict follows the enemy wherever it sets up a base of operations. In so doing, the memo explicitly rejects the argument advanced by some critics that the wartime norms enabling premeditated lethality only apply to “hot” conflict zones like Afghanistan.

If targeted killings are conducted in the context of armed conflict, then their pursuance is regulated by the laws of war. This body of law sanctions the acts of destruction inherent to war, but seeks to mitigate their worst excesses and consequences. As such, force must be directed at military objectives, exclude civilian targets, avoid excessive collateral damage, and prevent unnecessary suffering.

Under the laws of war, legitimate targets can be subjected to deadly force at any time and place. George Washington did not have to awaken the Hessians from their Christmas slumber and give them fair warning before his ambush at Trenton.

Moreover, while civilians must be spared from direct attack, they can render themselves lawful objects of lethal operations “for such time as they take a direct part in hostilities.” Through this mechanism, a nominal civilian may negate his protected status by virtue of his own hostile actions. The nationality of such an individual is irrelevant. An American citizen setting booby traps for the Viet Cong would surely have found himself in the crosshairs of an American sniper.

The laws of war thus provide the legal architecture for wartime conduct, but the white paper manufactures uncertainty by introducing concepts foreign to this area of jurisprudence.

For example, the memo requires that the proposed target pose “an imminent threat of violent attack against the United States,” even though imminence plays no role in the legal framework governing the conduct of hostilities. On the contrary, imminence is a concept drawn from the separate body of law regulating when a state may resort to force in the first place, particularly with respect to invoking the right of national self-defense. Since the memo presumes a pre-existing state of armed conflict with al Qaeda and its associated groups, the discussion of imminence is misplaced.

In addition, the memo mandates that capture be deemed infeasible before resorting to fatal attack. This requirement does not comport with wartime standards, wherein enemies wield lethal force against one another as a matter of course. Rather, it is reminiscent of the rules for law enforcement, which direct police officers to arrest suspects and only resort to deadly weaponry as a last resort.

The problem with the white paper’s reasoning is that it invites the very outcry that the release of the document has in fact provoked. By trying to fit important doctrines such as imminence and feasibility of capture into inappropriate contexts, the memo ends up contorting them beyond recognition.

For instance, the memo’s drafters endorse “a broader concept of imminence” which does not require “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” The ACLU cannot be blamed for countering that such verbal gymnastics threaten to “redefine the word imminence in a way that deprives the word of its ordinary meaning.” It is, as an ACLU attorney said, “the language of limits—but without any real restrictions.”

Most significantly, such confused logic and conflicting rhetoric run the risk of merely whetting the appetite of the nation’s critics, who deny the existence of a transnational armed conflict with al Qaeda-linked groups and contest the legality of most, if not all, targeted killings on that basis. U.S. inconsistency regarding the legal justifications for its counterterrorism programs undermines its ability to oppose such claims.

If U.S. officials have decided that drone strikes are good policy, and if their lawyers have determined they are being carried out in the context of an armed conflict, then the operations in question are governed by the laws of war. Sometimes the simplest answer is also the best one.


Ned McDonnell III

Tue, 04/30/2013 - 10:48am

In reply to by Move Forward


You make a valid observation on the fact that U.S. authorities would cooperate with their British counterparts. To clarify my perspective, let’s take this discussion one step further. There are four Irish men, suspected by the U.K. of being I.R.A. terror-killers but with no police records, who come to Boston and stay with relatives or friends of their families in four different homes.

Scotland Yard notifies the U.S. authorities that these people are suspected of terrorism and may be in Boston to raise funds to buy arms from Libya with which to kill troops of her Majesty’s Army and innocents nearby the blast site. The U.K. police officials further state that they believe that such fund-raising will be a likely prelude to subsequent violence, though they really do not know exactly when that mass murder would occur.

What goes unstated is that the British government sees that subsequent probability as an “imminent attack”. This assertion may or may not be shared by the U.S. counterparts. Additionally, there may open a perception gap between a British perception of these four men as “high level operatives of a terrorist organization at war with the U.K.” while their counterparts in Boston see them as suspected criminals or gang-members.

Of course and appropriately, the U.S. government immediately pledges to cooperate and does so by monitoring movements of the four people designated by the U.K. So, over the course of the next week, local police and federal agents monitor the movements of these suspects. The U.S. authorities report back that there has been no evidence of a crime or one imminently to be committed.

They have been at group activities but these have involved outings like going to Fenway to catch the Redsox against the Yankees. One activity that had been interesting had been a meeting of an Irish solidarity group, one of many, in a local Church but that turned out to be hosted by the parish priest for raising funds for Irish children to go to parochial schools.

With no evidence, the U.S. authorities state that, regrettably, they can not detain these people and extradite them to Britain. The British authorities press their U.S. counterparts, saying that the fund-raising was a front for getting money to buy arms. The U.S. law enforcement authorities state that they are unprepared to suspend habeas corpus but pledge to continue monitoring these people for the next two weeks, at which point, the four men head back to Belfast.

Scotland Yard realizes that, under current extradition treaties, it can not send in the Royal Marines or detectives to abduct these suspicious people in Boston with no legal charges pending in either country. So now we have, from the British view, a sense of imminent attack (and consistent under the white paper); an unwillingness displayed by the U.S. government; and, infeasibility of capture.

The British believe that if these men with these funds return to Ireland, that mass murder will likely, but not certainly, ensue sometime over succeeding months when they have purchased weapons from Libya. So, the U.K. government launches surveillance drones and they buzz around South Boston for two weeks, engendering (incidentally) fear among local residents.

The only time that these four suspects are in one place long enough to launch a strike and when they are not at venues – like baseball games, Sunday masses, Pops concerts, etc. – with high concentrations of innocents is when they are asleep in those four townhouses. To prevent an attack on the homeland, these authorities authorize a night-time strike, to minimize civilian casualties, and the rest of the example ensues.

Now all of this discussion on my part in no way implies that the United Kingdom would ever do something like this action nor does it indicate any sympathy with these men if, in fact, they are opportunistic gangsters. The point is to create a scenario in terms more familiar to us that would envision these circumstances to place us in the position in which the Pakistanis find themselves.

In this scenario, the United States would likely have means to disable these drones, as you observe. So, that part of the hypothetical does not correspond well with the likely reality. Nevertheless, citing that fact does not really address the underlying question put to the reader: ¿how would Americans react were such an act to occurr on their shores at the mortal expense of many innocents who were fellow citizens?

Additionally, the Bay State and the Pakistani tribal regions are two very different places. It might be conceivable (if I had the technical knowledge to argue it) that the topography and remoteness of the tribal regions, the number of fighter aircraft available and the ability to sustain them could preclude such a defensive option by Pakistan, even if it wanted to capture or kill these militants.

Again, MoveForward, many thanks for your thoughts.

Very truly yours,
Ned McDonnell.
Peace Corps-México.

Move Forward

Sat, 03/09/2013 - 8:11pm

In reply to by Ned McDonnell III

Ned, there is no comparison.

The above link shows about 1800 deaths from IRA attacks of which 1100 were security forces. In contrast, ISAF coalition troops have had over 3,000 deaths and spent hundreds of billions in a real war. The US lost over 3,000 on 9/11, the ANSF has lost over 4,000 forces, and afghan civilians about 3,100...overwhelmingly due to the Taliban, al Qaeda, and other foreign fighers on the civilian death side.

In addition, the Brits never would need to resort to drone attacks because our respective law enforcement agencies and governments would fully cooperate. That's also why IMHO it was completely <strong>implausible</strong> (not the word initially used) for Rand Paul to speculate that Jane Fonda's life was in danger from a drone attack. I did scratch my head when the Attorney General did not immediately close the door on drone attacks inside the U.S. Why would they be necessary when perfectly competent law enforcement can arrest said perpetrators...something seldom practical outside the U.S. in areas where terrorists/insurgents hide.

Finally, I chuckle when folks theorize that another country will fly lethal drones over the U.S. How close do you think they would get before they were destroyed? Again, I ask you to think about why Pakistan F-16s and Yemen MiGs do not shoot down our drones. I have no knowledge of CIA drone strikes other than what I read in the media or at However, common sense must prevail when you state in your earlier comment that the Pakistan government rejects our use of drones over their territory.

Ned McDonnell III

Sat, 03/09/2013 - 5:41pm

In reply to by Ned McDonnell III


I was trying to figure out an analogous situation where we might be on the receiving end of the type of behavior exhibited toward Pakistan with our drone strikes. I would like to discuss another situation where one nation was facing an insurgency aided by citizens of one of its closest allies.

In this case, I refer to the aid coming to the I.R.A. from American citizens, albeit many did not know their contributions were headed to terrorists in Belfast or that a very few of the guests in their neighbourhoods were active insurgents. Nevertheless, some of these fugitives found temporary havens in the United States.

Had the Brits buzzed over South Boston, day and night for weeks, and then blown up a few row houses killing thirty of forty people without the permission of the United States government, how would many or most of the rest of us have felt? I doubt we would have seen that action as legal in any way.

Even if the United States government had colluded with the British to permit or facilitate these extra-judicial killings, I doubt the reactions would have been much different except for anger toward our own ELECTED leadership. Subsequently, the airwaves might fill with pronouncements of "consistency with traditional values" by the British government and a "regrettable necessity" by our own; that these actions had been implemented with strict adherence to (the letter of) international law, etc.

Nevertheless, I really doubt people would buy into any legal rationale because the additional deaths incurred would be manifest to all, hard to forget and likely to excite passions of hatred or revenge. The point is: even if these drone strikes are technically legal, and although we have the capability to stage these attacks, makes them neither right nor wise.

Thank you again for an interesting essay and for your patience with my responses. Very truly yours,
Ned McDonnell.

Ned McDonnell III

Sun, 02/10/2013 - 7:29pm

MAJ Kels,

Thank you for a clear and concise view of a complex question. Truthfully, I must disagree with your thesis.

Stating that a targeted killing away from the area of operations is an action legally permissible in pursuit of a fluid enemy does not extricate us from the dilemma imposed by these extra-judicial killings. Pakistan has repeatedly told us that she considers our incursions by drones or by SOF teams (in the case of the elimination of Osama bin Laden) to be a violation of her sovereignty.

While early on, there might have been duplicity by the Pakistani government, indirectly to consent to these USG-ordered missions, that same government is now unequivocal in its viewing these strikes as violations of national sovereignty and the killing of Pakistani citizens. From the Pakistani view, our acts may not be merely aggressive but also qualify as acts of war.

What does international law say about carrying out these missions against the stated wishes of an unwilling host country? Are we now in a state of war with Pakistan? While I respect the elegance of your argument, I must wonder whether civilians ordering assassinations, largely to be carried out by other civilians, fits the conception or the intent of international laws of war. That sounds like legal scope creep-to-leap to me.

Sir, if you have an interest, I put my thoughts together in a letter home to "friends and familiares" that takes a different, perhaps less informed, view of the same question that you have obviously considered deeply. Thank you for a stimulating essay.…