by Tyler Cullis
Today news broke that the Obama administration is considering targeting a U.S. citizen located in Pakistan with lethal force. This quickly restarted the debate over what legal authorities the President has in drone strikes, what policies the administration has put in place to ensure that the targeted individual, in fact, poses a “continuing, imminent threat to U.S. persons,” and whether the legal criteria being employed for targeting meets international law standards.
The New York Times reports:
The Obama administration is debating whether to authorize a lethal strike against an American citizen living in Pakistan who some believe is actively plotting terrorist attacks, according to current and former government officials.
American officials said that the new discussions about whether to strike the American in Pakistan had been going on since the middle of last year.
That timeline makes this the first case in which the administration will be seriously considering using lethal force against a U.S. citizen since the killing of Yemen-based U.S. citizen, Anwar al-Awlaki, and the leak of the DOJ’s “White Paper”. That memo set forth the legal standards under which the administration would be deciding whether to use force against a U.S. citizen who is believed to be an operational leader of al-Qaeda or one of its associated forces. The White Paper” led to sharp criticism from U.S. and international lawyers, many of whom saw adventurism in the Department’s legal position and little faithfulness to actual law.
Those problems have not abated since last summer and risk embroiling the White House in one further controversy over its drone program – both at home and abroad. Here in the U.S., lawsuits remain pending as to the killing of al-Awlaki, where it is alleged that President Obama circumvented basic constitutional values — like ‘due process’ — in conducting a ‘closed executive process’ to determine whether or not to place al-Awlaki on the ‘kill list’. (From today’s stories, that process seems to have remained intact.)
International law experts, likewise, have questioned the relaxed definition of “imminence” that the White House has employed in targeting individuals. According to the administration’s definition, U.S. persons can be targeted provided they are an “operational leader of al-Qaeda or associated forces,” and are “personally and continually involved in planning terrorist attacks against the United States.” This clearly departs from the prevailing standard in international human rights law, where individuals can be targeted with lethal force only as a last resort against a specific, imminent threat of grave harm.
Finally, the United States continues to face international opprobrium for its insistence on maintaining a “war everywhere” approach to al-Qaeda, thereby running roughshod over traditional jus ad bellum and jus in bello rules. Even amongst its European allies, the White House has faced stinging criticism. Whether the Obama administration is willing to risk further censure over its extensive drone operations — especially while it is gently pulling the reins back on the program — will likely prove to be a major part of White House deliberations in the weeks ahead.