Obama's Criteria for Killing People Are Optional

On Monday I noted several alarming aspects of the process by which President Obama marks people for death, as outlined in a Justice Department white paper leaked this week. All of them boil down to this: To be comfortable with the Obama administration's program of "targeted killings," you have to be confident that the president and his underlings, without the benefit of judicial review, are conscientiously and inerrantly identifying people who deserve to die and who pose truly imminent terrorist threats that can only be addressed by dropping bombs on them. This morning Jesse Walker noted an additional problem: Even if the targets are appropriate, they are not the only ones killed by American missiles. In addition to the Yemeni cleric he mentions, who had taken a brave stance against Al Qaeda, the same New York Times story cites a 2009 attack in which "American cruise missiles carrying cluster munitions killed dozens of civilians, including many women and children." Counts by the Bureau of Investigative Journalism at City University in London indicate that drone strikes in Pakistan had killed somewhere between 474 and 881 civilians, including 176 children, as of last September.

The New York Times story also belies the impression that drones are targeting only "senior, operational leader[s] of al-Qa'ida or an associated force" who pose "an imminent threat of violent attack against the United States" and that they are used only when capture is "infeasible":

Several former top military and intelligence officials—including Stanley A. McChrystal, the retired general who led the Joint Special Operations Command, which has responsibility for the military's drone strikes, and Michael V. Hayden, the former C.I.A. director—have raised concerns that the drone wars in Pakistan and Yemen are increasingly targeting low-level militants who do not pose a direct threat to the United States….

In some cases, drones have killed members of Al Qaeda when it seemed that they might easily have been arrested or captured, according to a number of Yemeni officials and tribal figures. One figure in particular has stood out: Adnan al Qadhi, who was killed, apparently in a drone strike, in early November in a town near the capital.

Mr. Qadhi was an avowed supporter of Al Qaeda, but he also had recently served as a mediator for the Yemeni government with other jihadists, and was drawing a government salary at the time of his death. He was not in hiding, and his house is within sight of large houses owned by a former president of Yemen, Ali Abdullah Saleh, and other leading figures.

A 2012 study by researchers at the Stanford and NYU law schools estimated that 2 percent of targets killed by drones in Pakistan could be described as "high-level." To be fair, the DOJ white paper makes it clear that the conditions it discusses—the target is 1) a senior, operational leader who 2) poses an imminent threat (which in practice is the same as the first condition) and 3) cannot be captured—are sufficient to justify the summary execution of an American citizen, which does not mean they are necessary, especially when it comes to foreign nationals. Attorney General Eric Holder likewise kept the president's options open in a March 2012 speech (emphasis added):

Let me be clear: An operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

I am happy to let Holder be clear, but he seems intent on obfuscating a crucial point: While the president claims the authority to order someone's death when these conditions are met, he also claims that authority when these conditions are not met. The white paper itself broadens the meaning of "imminent threat" so that it is not really a distinct criterion, dropping even the requirement (which was never really a requirement) that a target be "actively engaged in planning to kill Americans." Both that document and a close reading of Holder's speech make it clear that the president's license to kill is broader than all the talk of careful review and qualifying criteria might lead one to believe.