The Ivory Soapbox—For Evil to Succeed
Last week, a brief, 16-page document was leaked to the press. Called “the White Paper,” the document outlines the Obama administration’s perceived justification in killing American citizens who are senior members of al-Qaida or related organizations. The argument is in three parts: first, “an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States;” second, “capture is infeasible, and the United States continues to monitor whether capture becomes feasible;” and third, that “the operation would be conducted in a manner consistent with applicable law of war principles.” There is much more to each of these criteria than that, of course, and most of it is highly persuasive. However, there are two issues with it that are somewhat alarming.
The first has to do with the second criterion, that in order for the United States to be justified in killing an al-Qaida-affiliated American citizen, the U.S. must be unable to extract that citizen. In this regard, the White Paper briefly notes that “regarding the feasibility of capture, capture would not be feasible if it could not be physically effectuated during the relevant window of opportunity or if the relevant country were to decline to consent to a capture operation.” The issue here is that the White Paper says nothing about whether or not the relevant country consented to a kill operation, the implication being that, if all other criteria are met and the host country consents to neither a capture nor a kill operation, a kill operation would be undertaken. Certainly, the White Paper makes no attempt to clarify otherwise.
In a situation in which both capture and kill are forbidden options, all else being equal, the United States should always attempt to extradite its citizens regardless of their alleged links to terrorist groups. Further, the United States has proven its ability and willingness to undertake covert operations utilizing American soldiers in foreign countries: on May 2, 2011, Navy SEALs, utilizing stealth helicopters, flew undetected for some 150 miles across the Pakistani-Afghan border to kill Osama bin Laden. If we are willing to put boots on the ground—rather than fire a bomb from far above—to kill our enemies, we should be willing to do the same to arrest American citizens. The White Paper goes on to say that “feasibility would be a highly fact-specific and potentially time-sensitive inquiry,” and taken with an earlier statement that, given that al-Qaida is always plotting against the U.S. and that we might not know the nature of every one of these plots, “the nation may have a limited window of opportunity within which to strike,” it seems that the likelihood that effort might be made to capture, rather than kill, American citizens is extremely slim.
Additionally, the White Paper takes a very worrisome approach to the judiciary. On the subject of whether or not it is lawful to kill U.S. citizens in specific instances, the paper says, quoting Haig v. Agee, the 1981 Supreme Court case on passport revocation, that “‘[m]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention’” and states further that “judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.” The implication seems to be that the judiciary has no business telling the U.S. government under what circumstances it can kill its own citizens and that if it tried, it would have a difficult time enforcing those rulings. This is a terrifying approach to the Supreme Court and calls to mind President Andrew Jackson’s proclamation on an unfavorable ruling that “John Marshall has made his decision; now let him enforce it!”
Despite these problems, it is important to remember that this White Paper is a brief summary of complicated legal reasoning and is intended only to be a brief outline of that reasoning. A 50-page version has been submitted to the Senate for review, and it is possible that the detail of the rationale outlined there justifies the questionable language used. Failing that, one can only hope that legal and legislative authorities will notice, consider and challenge the reasoning herein presented.