“I don’t think there’s any question but that we are at war,” said then-Attorney-General designate Eric Holder at his confirmation hearing in January 2009, agreeing with Senator Lindsey Graham that the United States and Al Qaeda were embroiled in a global armed conflict.
Three years later, with Guantanamo still open, military commission proceedings moving ahead, and terrorist suspects being killed on a routine basis by U.S. drones, Holder returned to the topic. In a speech given earlier this month at Northwestern Law School, he reaffirmed his view that the country is at war with Al Qaeda, while acknowledging that it is not a conventional war.
Holder’s speech, though short of a detailed legal justification of the U.S. practice of carrying out targeted killings of suspected terrorists, was the most thorough analysis of these issues that the Obama Administration has provided to date. It built upon ideas previously expressed by State Department Legal Adviser Harold Koh, in a March 2010 speech before the American Society of International Law, and Defense Department General Counsel Jeh Johnson, in February 2012 speech at Yale Law School.
Coming five months after a missile fired from a U.S. drone killed American-born cleric Anwar al-Awlaki in Yemen, Holder’s speech specifically focused on the use of lethal force against U.S. citizens. Holder did not mention al-Awlaki by name, but he took pains to emphasize that “citizenship alone” does not protect terrorist suspects from targeting.
Misstating the Fifth Amendment’s Due Process Clause, which protects “persons,” not just citizens, he made prominent reference to the Constitution’s requirement of due process of law. Citizens, he explained, could be targeted and killed by the U.S. government as long as certain procedural guarantees were respected.
The guarantees Holder outlined do not involve a trial, nor even any court proceedings. “‘Due process’ and ‘judicial process’ are not one and the same,” he asserted, “particularly when it comes to national security.”
The Israeli Model
The United States is not the only country that claims to be at war with a terrorist enemy, nor is it the only country that has crafted a set of extrajudicial procedures for carrying out targeted killings. Israel, which targets militants in Gaza on a regular basis, makes similar decisions about who to kill, in what circumstances, and on the basis of what evidence.
Years ago, U.S. officials were critical of Israel’s targeted killing policy; now, it seems, the U.S. is learning from the Israeli model.
Notably, the rules on targeting that Holder set out in his speech at Northwestern are quite similar to rules outlined by the Israeli Supreme Court in a landmark 2006 case. That case, brought by a non-governmental organization opposed to the country’s targeted killing program, led the Israeli Supreme Court to uphold the practice of targeted killings, but also to impose substantive and procedural safeguards.
A comparison of the U.S. and Israeli frameworks is instructive.
Both the U.S. and Israel require that the targeted person pose a threat, although the contours of that threat differ. Holder said a killing could be justified if the target was a senior operational leader of al Qaeda or associated forces, and was actively engaged in planning to kill Americans, and presented an “imminent threat” of violent attack against the United States.
The Israeli Supreme Court was somewhat less demanding in its rhetoric, not imposing a requirement of imminence or immediacy. It did, however, require that targeted killings be attempted only when solid information indicated that the target was taking a direct part in hostilities (including by planning terrorist attacks), and only for such time as the person’s involvement continued.
Given the circumstances of the al-Awlaki killing, in which the concept of an imminent threat seems to have been stretched, the two standards may be functionally equivalent.
The second requirement that both the U.S. and Israel impose is that the arrest of the target be risky or unfeasible.
Third, both the U.S. and Israel require that basic law-of-war rules of proportionality be respected: that an attack not be undertaken if the likely harm to innocent civilians outweighs the military advantage gained by the killing of the target.
Finally, the Israeli Supreme Court imposed an additional requirement: that a thorough and independent investigation be carried out in the wake of every such attack. Holder did not mention a similar rule, though he did emphasize the importance of congressional oversight.
Toward a Hybrid Approach
Both Israel and the U.S. are stretching the laws of war to cover counterterrorist operations that are unlike traditional armed conflict. In doing so, however, they are crafting a hybrid approach to wartime rules, importing restrictions more typical of human rights or domestic legal frameworks.
Under the traditional laws of war, for example, there is no need to consider whether it would be risky or unfeasible to arrest a suspect before trying to kill him.
The end result, it seems, may be a hybrid approach that takes military targeting powers and subjects them to more stringent civilian notions of due process. We have seen a similar approach to detention powers since the U.S. Supreme Court’s 2004 ruling in Rasul v. Bush and Hamdi v. Rumsfeld.
When much is at stake, some amount of process is better than nothing. Yet it is unclear whether, in real terms, these procedural changes have meaningfully improved substantive outcomes.