Two weeks ago, the administration argued for a redefinition of imminence. John Brennan, the president’s adviser on counterterrorism, observed:
Others in the international community—including some of our closest allies and partners—take a different view of the geographic scope of the conflict, limiting it only to the “hot” battlefields. As such, they argue that, outside of these two active theaters, the United States can only act in self-defense against al-Qaida when they are planning, engaging in, or threatening an armed attack against U.S. interests if it amounts to an “imminent” threat. …
[T]he question turns principally on how you define “imminence.” We are finding increasing recognition in the international community that a more flexible understanding of “imminence” may be appropriate when dealing with terrorist groups … [A]l-Qaida does not follow a traditional command structure, wear uniforms, carry its arms openly, or mass its troops at the borders of the nations it attacks. Nonetheless, it possesses the demonstrated capability to strike with little notice and cause significant civilian or military casualties. Over time, an increasing number of our international counterterrorism partners have begun to recognize that the traditional conception of what constitutes an “imminent” attack should be broadened in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.
Brennan was talking about international law, not due process. But if the meaning of “imminence” can be stretched in this way, that leaves feasibility of arrest as the only remaining legal barrier to assassinating U.S. citizens allied with al-Qaida. Last year, when Awlaki’s father challenged the U.S. government’s right to target Awlaki, the Department of Justice filed a brief arguing that
whether a threat is “imminent,” and whether reasonable alternatives exist to the use of lethal force, may depend upon on a variety of factors, including … what response would be sufficient to address that threat, possible diplomatic considerations that may bear on such responses … the availability of military and non-military options, and the risks to military and nonmilitary personnel in attempting application of non-lethal force.
That would be a sensible interpretation of the arrest-feasibility rule. If you can’t send U.S. forces to capture the suspected terrorist—because of likely U.S. or civilian casualties, or because the host country won’t allow it—and if the host country can’t or won’t capture him itself, then you have no reasonable alternative to lethal force. Under this interpretation, the drone strike on Awlaki was justified.
But so is any other plausible drone strike on an al-Qaida-affiliated American. We use killer drones where we can’t send troops. Pakistan won’t let our ground forces fight within its borders, so we hunt our enemies there with remotely piloted aircraft. We do the same in Somalia because we don’t want to risk another Black Hawk Down. We would have used missiles to kill Osama Bin Laden, if we’d been certain that he was the guy in the Abbottabad compound.
Which leaves us with an awkward bottom line. If the target is a suspected terrorist, “imminence” can be redefined to justify killing him. If the weapon is a drone, feasibility of arrest has already been ruled out—that’s why the drone has been sent to do the job. So in any drone strike on a U.S. citizen suspected of terrorism, only one of the three questions we supposedly apply to such cases is really open: Has he been fighting alongside al-Qaida? If he has, we can kill him. That’s the same rule we apply to foreigners. In effect, citizenship doesn’t matter. The “due process” test is empty.
I’m glad Awlaki is dead. The evidence of his guilt was extensive. But the crimes of which we accused him, and the aircraft we sent to kill him, pretty much guaranteed that we could rationalize his assassination based on the imminence of the threat he posed and the difficulty of arresting him. The Obama administration’s rules might preclude drone strikes at home. But under the current program of drone strikes abroad, American citizenship means nothing. Let’s admit it.
(Readings I recommend: Thomas Joscelyn at the Long War Journal details some of Awlaki’s involvement in plotting operations against the U.S. Robert Chesney at Lawfare thinks the administration approved the Awlaki strike despite “due process” because he “was located, purposefully, in a place where neither the host-state government nor the United States had a plausible opportunity to capture him.” Marty Lederman at Opinio Juris analyzed John Brennan’s remarks on the redefinition of “imminence.” Benjamin Wittes at Lawfare proposes a looser rule than imminence: “the foreseeable consequence of a failure to interdict the suspect will be the loss of opportunity to neutralize the threat he poses and thus presents an unreasonable risk to human life.” Glenn Greenwald at Salon and Spencer Ackerman at Attackerman warn against the dangers of drone strikes on U.S. citizens. Jack Goldsmith at Lawfare urges the administration to release OLC’s rationale for Awlaki’s assassination.)