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Saturday, February 09, 2013

The white paper defines "imminent" correctly. Now what?

It's been widely noted that the Justice Dept. white paper purporting to set forth a legal framework "for considering when the US government could use lethal force in a foreign country" to kill a U.S. citizen vastly expands the killing zone in space and time. "The battlefield" is potentially everywhere, and the "imminence" of the threat of violent attack to be legitimately defended against is continuous.

Regarding physical space, the paper pretty much gives the government carte blanche to target anyone deemed a "senior operational leader of al-Qa'ida" in any country in the world, since an attack is deemed "consistent with international legal principles if it were conducted, for example, with the consent of the host nation's government or after a determination that the host nation is unable or unwilling to suppress the threat posted by the individual targeted" (p.5). For example indeed. That "example" covers every imaginable circumstance. I'm no expert in international law, but I doubt it sanctions governments to kill perceived enemies as defined herein wherever they find them.

The white paper has been most widely excoriated for its definition, or alleged defining away, of "imminent." One of three conditions that must be fulfilled for a lethal attack on a U.S. citizen to be justified is "the condition that an operational leader present an "imminent" threat of violent attack against the United States" -- which, according to the paper, "does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future" (p.7).
The problem, from the standpoint of defining who may be killed, is that the white paper argues that the "imminent" threat posed by al-Qa'ida is "continual" -- a word that appears continually throughout the paper.  For example, citing the testimony of U.K. Attorney-General Lord Goldsmith, the paper asserts that
(what constitutes an imminent threat "will develop to meet new circumstances and new threats...It must be right that states are able to act in self-defense in circumstances where there is evidence of further imminent attacks by terrorist groups, even if there is no specific evidence of where such an attack will take place or of the precise nature of the attack."). Delaying action against individuals continually planning to kill Americans until some theoretical end stage of the planning for a particular plot would create an unacceptably high risk that the action would fail and that American casualties would result (p. 7, my emphasis).
The New York Times' news account of the release of the white paper calls this definition of an "imminent" threat "elastic," which is descriptive and not inaccurate. The ACLU's deputy legal director, Jameel Jaffer, places this elasticity at the center of the core objection to the white paper:
The paper's basic contention is that the government has the authority to carry out the extrajudicial killing of an American citizen if "an informed, high-level official" deems him to present a "continuing" threat to the country. This sweeping authority is said to exist even if the threat presented isn't imminent in any ordinary sense of that word, even if the target has never been charged with a crime or informed of the allegations against him, and even if the target is not located anywhere near an actual battlefield. The white paper purports to recognize some limits on the authority it sets out, but the limits are so vague and elastic that they will be easily manipulated.

The paper initially suggests, for example, that the government's authority to use lethal force is limited to people who present "imminent" threats, but it then proceeds to redefine the word imminence in a way that deprives the word of its ordinary meaning.
There is a semantic problem with this complaint, which I think at least potentially points toward a legal problem with it. The white paper's use of the "imminent" is not at variance with the word's primary meaning. The root is the Latin verb imminere, which according to the OED means "to project or lean over, overhang, impend, be near."  The OED's primary definition of "imminent" subordinates the sense of temporal immediacy:
1. Of an event, etc.(almost always of evil or danger): Impending threateningly, hanging over one's head; ready to befall or overtake one; close at hand in its incidence; coming on shortly.
That definition suggestively blends the actual and (mass) psychological damage wrought by terror, doesn't it? So does the OED's No. 2 definition (archaic, if not by the OED's standards; the only cite is from 1642):
2. Remaining fixed or intent (upon something).
That would be al-Qa'ida, fixed upon harm of U.S. interests. Both of these rather Gothic-sounding definitions lead a reader (me, anyway) to reflect on the (indeterminable) extent to which "imminence"may be in the eye of the beholder. That suggests a problem of policy. Perhaps it would be wiser to define the threat justifying a lethal response more narrowly. But the government, wisely or not, plainly perceives the threat from al-Qa'ida to be continually imminent. That is not a twisting of language: it is a perception that seems endemic to being held responsible for preventing terrorist attack.

To the extent, then, that finding a threat "imminent" has an impact on how it may legally be dealt with, the paper does not twist the meaning of the word. The real questions, I think, are, who decides who constitutes an imminent (that is, real and likely to occur) threat, and who oversees that decision?  What international rules govern determine the legality of a strike against a threat determined in accordance with a country's domestic laws to be imminent?  And finally, to what extent are these strikes prudent -- when do they diminish the threat of terrorist attack, and when do they exacerbate it? (see Johnsen, Gregory, Yemen).

[reposted: originally posted on 2/8]

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