A Few Brief Thoughts on the DoJ White Paper

The recently leaked US Department of Justice White Paper on targeted killings has now been thoroughly dissected in the blogosphere (see, in particular, Kevin Heller’s and Deborah Perlstein’s comments on Opinio Juris here, here, and here, as well as Steve Vladeck’s take on Lawfare). I have little to add to this – in part because, as Ben Wittes and Susan Hennessay point out, there is actually fairly little new in this memo when you compare it to the various speeches on drones given by Obama administration officials. The substantive arguments or positions are essentially the same.

Where the White Paper is different, however, is in its format and size. It is not the ‘real’ legal memorandum prepared by the Office of Legal Council in the DoJ, which it allegedly summarizes to an extent, but neither is it a mere speech. It is written in legalese, it has footnotes and citations, it has the form of a legal document even if perhaps not all of its trappings. I must say that I really do not understand the administration’s reluctance to release the OLC memo itself, with redactions for any classified materials, and the need to produce this kind of quasi-summary. Nobody’s really happy with that (I won’t even get into a rather unflattering comparison with the policies of the Bush administration on similar matters), and there doesn’t seem to be any real benefit to such a strategy of creeping disclosure (indeed, leakage). The administration has now announced that it will disclose the memo to Congressional intelligence committees, but whether a redacted version will be made public is yet to be clear.

The White Paper is thus what we’ve got so far. And if we judge it on its own merits it doesn’t come accross well, for reasons given mostly be Kevin and Steve. Here’s a few additional points.

First, it is depressing to what extent the paper doesn’t acknowledge or address opposing positions or genuine legal uncertainties – especially if such uncertainties have been much discussed or if the opposing positions actually constitute mainstream views outside the US. The paper is written more like a piece of advocacy for positions already firmly determined than as a piece of legal advice – I imagine that this is because it was intended for a Congressional audience, where the Obama administration’s drone policy already enjoys broad bi-partisan consensus, and I hope that the OLC memo is significantly more rigorous in this respect. For example, the view that the US is engaged in a global non-international armed conflict with Al-Qaeda and associated forces is asserted rather than defended – note on p. 3 the rather self-referential citations to previous speeches by administration officials, or the reference to the Hamdan decision which does not in any way acknowledge that there are real doubts as to what the Supreme Court actually said in that case in terms of conflict classification and why.

Second, like the big Holder speech before it, the White Paper has a bit of a citizenship fetish. Note that the actual text of the relevant amendments to the US Constitution that the paper scrutinizes makes no distinctions on the basis of US citizenship. Nor is there (to the extent I’m aware) any real ‘original understanding’ going back to the times of the Framers as to how the US Bill of Rights would apply extraterritorially that somehow mandates such critical reliance of citizenship as the sole basis for constitutional rights outside US territory. As I argued with regard to the Holder speech, the position that non-citizens can be killed much more easily than citizens, without any entitlement to a capture-before-kill analysis, is in my view morally and constitutionally repugnant, as is the whole discourse around it (I find it equally objectionable that say the ACLU or other NGOs will in their media appearances and the like at least imply that killing a citizen is somehow worse than killing a non-citizen).

Third, while the paper is mostly concerned with issues arising under US domestic law, its analysis of relevant international law shows much conceptual confusion. As with the various speeches before it, we again have frequent conflations between the jus ad bellum and the jus in bello – note the references to the existence of armed conflict and national self-defense as alternative justifications for the use of force, as if the two operated on the same level of analysis; note also the references to neutrality (pp. 1 and 4-5), even though we are (supposedly) in the realm of non-international armed conflict, and that there are doubts as to the interaction between the law of neutrality and the Charter prohibition on the use of force even in IACs.

Similarly, while the paper sort of takes note of the critique of the US single global NIAC position on the basis of the Tadic criteria of intensity and organization (p. 4), it just proceeds to brush off this critique by using analogies to the geographic scope of IACs. While I think that analogy is not wholly misplaced, the paper fails to do justice to what is undeniably a very complex issue – it is simply not obvious that say a guy picked up somewhere in Bosnia and stickered with an Al-Qaeda label has a genuine connection to any kind of NIAC between the US and AQ (for my thoughts on this see here, at 31 ff).

Perhaps the most egregious example of such conceptual confusion can be found in the discussion of imminence under the Due Process Clause of the Fifth Amendment, where the DoJ cites the views of the former UK Attorney-General, Lord Goldsmith with regard to imminence under the jus ad bellum (p. 7), when he was dealing with the entirely different matter of whether Art 51 of the Charter requires an armed attack to have actually occurred before a state may respond in self-defense. If, for example, the territorial state (e.g. Yemen or Pakistan) validly consents to the use of force on its territory by the US, questions of self-defense, imminent as opposed to actual armed attack and the jus ad bellum generally become completely irrelevant, since their purpose is precisely to protect the sovereignty of the territorial state. If an imminence standard is appropriate, whether under the US Constitution or under international human rights law (which the DoJ completely neglects), then it stands on its own and is not in any way derived from the jus ad bellum. Rather, it is tied to the danger that the targeted individual poses and the feasibilty of his or her capture – it is the rights of the individual, not those of the state, that lead to such an inquiry.