If there are possible legal grounds for drone assassinations based on the White paper, then these are post hoc ergo propter hoc confirmations of a fait accompli. In other words, when questionable acts are committed by the President, can you justify them legally after the fact? The Justice Department’s White Paper on “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen” definitively belongs to this classification of legal questions.
Committing a legally questionable act cannot be justified when the legal grounds are ex post facto or after the fact. Ex post facto legal grounds are an admission that all acts committed before the legal grounds were established lacked any legal basis in law and they can’t be justified retroactively. Since the White Paper’s purpose is to justify killing Americans who meet certain criteria pertaining to Al-Qa’ida, those acts are ultra vires or committed without legal authority.
Nevertheless, it could be argued that the White Paper is only a summary of existing laws that authorized the acts in question and therefore the acts were committed intra vires or with legal authority. To establish whether or not the legal arguments in the White Paper grant this authority to the President, those justifications must be scrutinized and as well, any laws, domestic or international, that was relevant to the case but which were overlooked in the White Paper.
The White Paper basically constructs specious arguments based on false assumptions to justify using drones to target possible threats to the security of the United States or a grouping of Americans.
Most significantly, the paper assumes the legitimacy of the Authorization to Use Military Force Act (AUMF) passed by Congress on September 14, 2001. The backbone of their case depends on the validity of AUMF to mandate the President and his advisors to select targets for assassination regardless of their nationality or their location at the time of the assassination.
AUMF states that “The President is authorized to use all necessary and appropriate force against those nations, organizations or persons he determined planned, authorized, committed, or aided the terrorist attack that occurred on September 11, 2001, or harboured such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Before analyzing whether or not AUMF is consistent with existing domestic or international law, it is important to recognize that the use of “all necessary and appropriate force” is limited to entities that were directly involved in 9/11. The Act is not a blanket mandate to kill terrorists at any time in the future who may be plotting against the United States but played no role in 9/11.
By cleverly defining the war against terrorism as a non-international armed conflict and by abrogating the characterization of the conflict as a war, the paper intends to deflect any charges that the targeting for assassination is in violation of international or domestic law. The White Paper states that “There is little judicial or authoritative precedent that speaks directly to the question of the geographic scope of a non-international armed conflict in which one of the parties is a transnational, non-state actor and where the principle theatre of operations is not within the territory of the nation that is party to the conflict.” Furthermore, the Paper states that “Moreover, such an operation would be consistent with international legal principles of sovereignty and neutrality if it were conducted, for example, with the consent of the host nation’s government.” These claims are pure double-talk.
For example, when the Chief of State of the totalitarian government of Yemen who is a close ally of the United States, permits the United States to kill suspected terrorists on its territory that does not override all the international laws prohibiting such an act. These laws include the UN Charter, Article 51; the Fourth Geneva Convention, Article 3; and the Covenant on Civil, Political and Cultural Rights, Article 4, paragraph 2; and the Universal Declaration of Human Rights.
The White Paper refuses to call the acts authorized by AUMF and carried out by drones assassinations or executions but refers to them as self-defense. One of the motivations for the absurdity of eschewing the employment of these terms is related to an international law expressly prohibiting executions. The Economic and Social Council, a founding UN Charter body, introduced a principle of international law in 1989 called the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions which states that “Governments shall prohibit by law all extra-legal and summary executions…Exceptional circumstances including a state of war or threat of war, internal political instability or any other public emergency may not be invoked as a justification for such executions. Such executions shall not be carried out under any circumstances.”
As well, self-defense is essential to the legitimacy of the use of drones for killing. Self-defense calls into question Article 51 of the UN Charter which states that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations.” Interpretations have extended the rigid requirement of an “armed attack” to pre-emptive or anticipatory self-defense but only if certain criteria are met. Traditionally, the criteria are based on customary international law which in this case refers to the Caroline Case which establishes that there had to exist “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment of deliberation and furthermore that any action taken must be proportional.”
The White Paper invents an absurd rationale for not complying with the Caroline criteria. According to the White Paper “The threat posed by al-Qa’ida and its associate forces demands a broader concept of imminence in judging when a person continually planning terror attacks presents an imminent threat, making the use of force appropriate. In this context, imminence must incorporate considerations of the relevant window of opportunity, the possibility of reducing collateral damage to civilians, and the likelihood of heading off future disastrous attacks on Americans.” In simple terms, we are assuming that all terrorists are continually plotting against the United States and therefore we have the right to kill them at any time.
Another argument crucial to the defence of targeting suspected terrorists with drones is that any attempt to capture the suspect(s) in order to grant them the universal right to due process is not possible. In the White Paper, due process is practically dismissed by claiming that “The targeted individual poses an imminent threat of violent attack against the United states; …where a capture operation would be infeasible…In these circumstances, the “realities” of the conflict and the weight of the government’s interest in protecting its citizens…are such that the Constitution would not require the government to provide further process to such a citizen before using lethal force.”
If there had been serious attempts to capture the suspects before using lethal force, would the U.S. government not have an obligation to inform the public? It would also be in the government’s interest to do so. In the case of both Anwar Awlaki and his son, Jeremy Scahill clearly documents that their whereabouts was well-known and that the authorities could have been notified in order to attempt an arrest. In the case of Awlaki’s son, Scahill points out that he was living with his grandparents who are respected members of the community and a long distance from his father, and that he had run away in order to see his father one more time.
Scahill documents many instances of large number of innocent people killed or maimed by these drone attacks. The legal principle of proportionality is not a consideration in the identification of targets.
The White Paper is clearly a case of the tail wagging the dog. It paints a picture of dangerous terrorists all over the world continually planning violent attacks against the United States and who can never be captured and granted their civil and legal rights. In addition, the only way to protect the United States and its citizens from violent attacks from these dangerous terrorists is to identify them and kill them immediately.
DAVID MODEL is a Professor of Political Science at Seneca College. He is the author of States of Darkness: US Complicity in Genocides Since 1945. He can be reached at: email@example.com