Expanding the Executive’s Power to Kill: The U.S. Justice Department’s Memo

Guest blogger, Professor Thomas McDonnell of Pace University School of Law, prepared the following comments on the recently released U.S. Justice Department legal memorandum authorizing drones strikes:

"The Justice Department’s legal memorandum authorizing drone strikes to kill American citizens in foreign countries establishes vague and overbroad standards and creates a dangerous precedent for unchecked executive power.  The memo impliedly approves hit lists, including targeting American citizens, whom “an informed, high level official of the U.S. government” concludes to be “a senior operational leader of al-Qa’ida or an associated force.” “An informed, high level official” presumably may include a senior official in the Central Intelligence Agency—which has carried out over 300 drone attacks in the Pakistan tribal areas since 2004, not to mention attacks in Yemen and Somalia.

Written by the Justice Department’s Office of Legal Counsel, the memo implicitly adopts the questionable global-war-on-terrorism theory, contending that the exceptional law of war regime applies outside of armed conflict to any foreign state on the planet if that state is unable or unwilling to “suppress” (arrest, capture or kill) individuals whom the executive believes to be terrorists.  (The exceptional law of war regime permits deliberately killing (1) combatants, (2) civilians who directly participate in hostilities, and (3) non-combatants—civilians who fall into the expansive category of collateral damage—as long as the requirements of military necessity are met.)

Under international law, the exceptional law of war regime only applies to war zones—areas of armed conflict, like Afghanistan and possibly to a neighboring state like the Pakistan tribal areas from which attacks are launched with impunity, but the law of war regime does not by extension apply to the entire world. International human rights law (rather than the law of war) has plenary authority in areas not subject to armed conflict and permits the use of deadly force only where an individual threatens imminent serious bodily harm or death to another (like Jimmy Lee Dykes who imminently threatened to take the life of a five year old Alabama boy he had kidnapped).

The Justice Department memo stretches “imminency” far beyond its plain meaning. Once an “informed, high level [governmental] official” determines the American citizen to be a high level member of al-Qa’ida  or an “associated force,” that American citizen is conclusively presumed always to be posing an imminent threat even if he or she is not plotting or in the process of carrying out any attacks against the United States whatsoever.  According to the memo, such an American citizen may at all times be targeted by a weaponized drone in any country anywhere in the world that an "informed, high level [U.S. governmental] official” decides is unable or unwilling to arrest, capture or kill.

Significantly, the Justice Department memo deals only with targeting American citizens. Presumably, the administration’s standard for targeting non-citizens is considerably lower.  September 11 demonstrates the danger that transnational terrorist organizations pose and the special danger
of foreign states providing safe havens for terrorists. Outside of areas of armed conflict, that threat should be met through the United Nations, or, in the event of Security Council paralysis because of a permanent Security Council Member veto, by a wide coalition of states. When acting unilaterally in such areas, the United States should strictly follow international human rights law.

Furthermore, the Justice Department should recognize that the broad executive discretion it asserts will be used not just by this administration, but by future administrations and that this broad authority to kill virtually anywhere on the globe will be exploited not just by the United States, but by other nations, possibly including Russia, China, Iran, Sudan, and North Korea.  If the United States refused to surrender to Russia a Chechen whom the Russians regarded as a terrorist leader, should Russia implicitly be authorized to send a drone (or a special operations assassination team) into the United States to kill the Chechen on the ground that the United States is unwilling to capture or arrest that individual? More commonly, the United States example might encourage other powerful countries to use such authority to carry out military operations, including drone “targeted killing” strikes, in weaker countries.  Is such a policy and practice likely to make the world safer and less violent? 

There is another dimension to this question. A drone attack can be launched two continents away by a drone “pilot” sitting in the comfort of a control room without the slightest possibility of suffering any injury whatsoever, let alone risking his or her life. It is the ultimate in unchivalrous combat.  The Reaper Drone can carry four Hellfire missiles, plus two 500 pound bombs.  A single Hellfire missile can destroy a tank (or a house). We are employing this high tech weaponry against the Taliban, al Qa’ida and their allies, religious zealots who have adopted the ultimate low tech weapon, the suicide bomber.  There is growing evidence that the drone attacks in Yemen have led to increased recruitment by extreme Islamic terror organizations and that drone attacks in Pakistan have led to a popular outcry against the United States in Pakistan and sharper criticism in the greater Muslim world.  The tactical success of drone attacks killing over 50 Taliban and al Qa’ida leaders thus runs the substantial risk of being a strategic failure.

One would have hoped that after the so-called infamous torture memos, the Justice Department’s Office of Legal Counsel would have tread more conservatively, would have erred on the side of putting limits on executive power and would have adhered to the spirit as well as to the letter of both the international law of war and international human rights law.  Given the deadly nature of al Qa’ida and its allies, one can understand the argument in favor of much more flexible legal rules on the use of force. Yet strictly applying both law of war and human rights law will better ensure the moral authority of the United States, will better promote world public order and international cooperation, and is more likely to provide a firmer path towards eliminating the threat of transnational terrorism."

Professor McDonnell is the author of "The United States, International Law, and the Struggle against Terrorism" (Rutledge 2010) as well as numerous articles, including his most recent, Sow What You Reap?  Using Predator and Reaper Drones to Carry Out Assassinations or Targeted Killings of Suspected Islamic Terrorists” which was recently published by the George Washington International Law Review (44 Geo. Int'l L. Rev. 243 (2012)). 

(cgb)