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Top Issues with the Declassified Drone Memo

Earlier in the week, a classified Department of Justice memo was released by court order that laid out the legal reasoning for the targeting of Anwar al-Awlaki, an American citizen and accused member of al-Qaeda in the Arabian Peninsula (AQAP) who was killed in 2011 by a drone strike in Yemen. Despite its heavily-redacted format, the release of the memo is an important step forward toward greater transparency and ensuring rule of law in U.S. counterterrorism operations, especially with respect to the targeted killing of American citizens. Nonetheless, the redacted memo leaves a number of crucial questions unanswered that require closer inspection by the public and greater transparency on behalf of the government. Until these issues are addressed, a full assessment of the legitimacy and necessity of the existing targeted killing program cannot be made and it will continue to operate in a gray area that invites legal and moral challenges.

1. Extrajudicial killings of Americans using “public authorities” justification raises troubling questions. The New York Times editorializes, “The main theory that the government says allows it to kill American citizens, if they pose a threat, is the ‘public authorities justification,’ a legal concept that permits governments to take actions in emergency situations that would otherwise break the law. It’s why fire trucks can break the speed limit and police officers can fire at a threatening gunman. But it’s a dangerous concept if expanded because it could be used to justify all kinds of government misdeeds, especially since Congress has never explicitly authorized an exception for official killing in this kind of circumstance, as the memo acknowledges.” The Times goes on, “The sheer power of drone strikes, several of which have killed many innocent bystanders, is in no way comparable to the kind of police shootings that the memo cites as precedent. (And, in most cities, police shootings are carefully investigated afterward, and officers face punishment if they exceed their authority. Has that ever happened with an errant drone strike?)” [New York Times, 6/23/14]

2. American citizens can only be targeted when capture isn’t feasible – but how “feasibility” is defined and assessed by the U.S. government remains unknown. Jennifer Daskal, former Assistant Attorney General for National Security at the Department of Justice, explains, “the memo also relies on an executive branch determination that capture is infeasible, strongly suggesting (although not directly stating) that the killing would violate the Fourth amendment if capture was feasible…this raises a series of yet unanswered questions: How is feasibility defined? How much risk should we (our special forces) be expected to incur to make a capture feasible? Is a host nation’s lack of consent to a capture operation a sufficient basis for a finding of infeasibility, even if the executive would have carried out a capture operation if consent were freely given?” Other questions also arise, she observes: “how can the feasibility determination be made in advance, without an analysis of the specific situation in which the target was attacked? Was there an assumption that capture was infeasible so long as al Aulaqi was in Yemen? Would the analysis change depending on where he is found in Yemen — or elsewhere?” [Jennifer Daskal, 6/24/14]

3. The government’s problematic idea of imminence still lacks clarity – as does the evidentiary standard used to judge whether a threat is considered imminent. The notion of imminence used by the government in targeted killings of American citizens is problematic in that it appears to have nothing to do with imminence as commonly understood. The American Civil Liberties Union (ACLU) explains, “The previously disclosed ‘white paper’ [last year] on the targeted killing of U.S. citizens explained the government’s view that ‘the condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.’…  Rather than give further explanation and clarity to that extraordinary and novel reading of ‘imminence,’ the newly released memo — at least as presently redacted — fails to address that requirement in any detail whatsoever. The memo…tells us that ‘[h]igh-level government officials’ determined that al-Aulaqi constituted an ‘imminent’ threat to the United States. But the memo does not explain how the government interprets that requirement, nor does the memo explain the evidentiary standard the officials must meet in order to satisfy it.” [ACLU, 6/23/14]

4. The memo further demonstrates the government’s lack of transparency about what organizations are considered to be “associated forces” of al-Qaeda, and therefore targetable under the 2001 AUMF. Jennifer Daskal explains, “The memo states that al Aulaqi could be lawfully targeted either because his leadership role in al Qaeda in the Arabian Peninsula makes him ‘part of’ [al-Qaeda] or because he is the leader of an ‘associated force’ or al Qaeda…This is not new. But it is a reminder of just how much the ‘associated force’ determination matters.” And on this front, there is no definitive, public reporting or list of what terrorist organizations are considered to be associated forces of al Qaeda. Daskal continues, “According to the memo’s reasoning, a U.S. citizen-leader of such forces can be lawfully targeted wherever located, assuming capture is not feasible and the host country is unable or unwilling to address the threat…At least as of a month ago, testimony by CIA General Counsel Stephen Preston suggested that AQAP is the only group that currently qualifies as an associated force, but also made clear that this determination may change – and transparency on this front is critical.” [Jennifer Daskal, 6/24/14]

5. Release of the memo was a good step, but more transparency is necessary to address these and other unanswered questions. David Cole of the Georgetown University Law Center explains, “the release of the al-Awlaki memo is an important step toward adequate transparency and accountability. But it is only a first step, and is insufficient by itself. For starters, much of the memo, including virtually all facts supporting the charges that al-Awlaki posed an imminent and continuing threat, are redacted. So is much of the constitutional analysis. The memo’s discussion of the constitutional questions refers to a separate memo — but that memo remains secret. Without details, important questions remain as to how the administration defines an ‘imminent’ threat, and how it determines that capture is ‘not feasible.’ Can al-Awlaki really have posed an ‘imminent’ threat for the entire fifteen months between the time the memo was written and his killing, and if so, what does that tell us about the administration’s conception of ‘imminence’?” [David Cole, 6/24/14]