Point of View

A peek but still no clear policy on using force against U.S. citizens

February 6, 2013 

A memo that became public Monday purportedly lays out the Obama administration’s legal justification for using force against certain U.S. citizens involved with al-Qaida.

The unsigned and undated Justice Department document offers important insight into the legal architecture of the overall U.S. effort against terrorists but hardly answers all the questions. In a way, the memo addresses only the easy case, that is, an American serving as a senior al-Qaida leader actively involved in plotting terrorism against the U.S.

The memo sticks mainly to well-accepted concepts of self-defense, such as the requirement of an “imminent” threat. Furthermore, it says the U.S. must show capture to be “infeasible,” something which is more of a law enforcement concept than something adversaries in the midst of war necessarily have a legal right to expect.

In fact, the memo seems to be more oriented toward a human rights law approach than what international humanitarian law – called the law of armed conflict in the U.S. – might require. Under the law of armed conflict, there is no obligation prior to using lethal force to find that enemy combatants are about to strike, nor is it legally necessary to try to capture them. Yet the memo imposes such restrictions.

In armed conflict, combatants can be attacked at any time and wherever found. And status as a “senior operational leader” is not a targeting requirement, either. For example, foot soldiers can be lawfully bombed even as they sleep in their barracks away from their weapons.

Ironically, as the memo notes, the United States has long insisted it is in an armed conflict with al-Qaida – something, incidentally, al-Qaida has never denied. Under the law of armed conflict, this means that those members of an organized armed group like al-Qaida who are involved in continuous combat – including plotting terrorist acts – can be struck without warning, just like any other combatant in war.

Accordingly, it would have been better if the memo had clearly set forth the independent arguments that separately exist under the law of armed conflict and international human rights law and to have better separated what law requires and what is merely wise policy.

Those who believe that imminent threat is required before killing a combatant in war will complain about the memo’s seeming broadening of the concept of imminence. However, in light of the kind of threat 21st century terrorists present, the memo’s incorporation of the relevant “window of opportunity,” the need to limit civilian casualties, as well as the gravity of the threat all seem to be reasonable factors in making the determination.

The memo’s analysis of domestic law is plausible but depends upon a clear understanding of exactly what “al-Qaida and associated forces” means today, as used in Congress’ authorization to use force. Terrorists don’t necessarily organize themselves in neat diagrams, and that complicates determining precise relationships with finality. While the president has the authority to act in the nation’s self-defense, this does make the analysis under domestic law more vulnerable to debate.

Critics will also complain that U.S. citizens who take up arms against this country should somehow be more legally privileged than lawful combatants in war who happen not to be U.S. citizens. Actually, if you become a combatant against the U.S., the courts have generally held you are subject to the same consequences – including lethal attacks – to which any enemy combatant is subject, regardless of citizenship.

All in all, the memo is helpful, at least as far as it goes. It plainly contradicts the accusation that these attacks are being conducted without any legal analysis. But any legal memo is only as good as the facts applied to it. We will continue to see arguments about access to, and the sufficiency of, the supporting evidence, and whether there is adequate vetting and oversight of it.

Moreover, the administration’s piecemeal approach of revealing its legal rationale for strikes against various terrorists is problematic. Public comments by a variety of senior officials, as well as the disclosure of documents like this, seem aimed at retaining some measure of official deniability, depending upon public and international reaction.

What is now needed is a formal, detailed and very comprehensive U.S. legal position. This recent memo could be a part of that, but there needs to be something that addresses the full range of terrorist threats, not just those posed by those American citizens serving as senior al-Qaida operational leaders.

Charles Dunlap Jr. is a Duke Law School professor and the executive director of Duke’s Center on Law, Ethics and National Security. He is a former deputy judge advocate general of the U.S. Air Force.

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