PAPER: Oversight for Effectiveness: A Counterterrorism Perspective on the Targeted Killings “White Paper”

I wrote a paper for the National Secu­rity Net­work on what the OLC White Paper means for over­sight and coun­tert­er­ror­ism effectiveness.

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In Feb­ru­ary 2013, a Depart­ment of Jus­tice White Paper was leaked, mak­ing pub­licly avail­able for the first time a sum­mary of two legal memos set­ting out the legal details of the administration’s jus­ti­fi­ca­tion for tar­geted killing of Amer­i­can citizens.

The paper’s scope is explic­itly lim­ited to deci­sions tar­get­ing U.S. cit­i­zens who meet three criteria:

  1. An informed, high-level offi­cial of the U.S. gov­ern­ment has deter­mined that the tar­geted indi­vid­ual poses an immi­nent threat of vio­lent attack against the United States;
  2. Cap­ture is infea­si­ble, and the United States con­tin­ues to mon­i­tor whether cap­ture becomes fea­si­ble; and
  3. The oper­a­tion would be con­ducted in a man­ner con­sis­tent with applic­a­ble law of war principles.

Despite these lim­i­ta­tions on scope, the White Paper implic­itly raises broader ques­tions about the struc­ture, poli­cies, legal frame­work and ulti­mate effec­tive­ness of the tar­geted killing pro­gram as a whole. These ques­tions are often dis­cussed in the con­text of legal­ity and con­sti­tu­tion­al­ity, this paper looks at them from the point of view of coun­tert­er­ror­ism effectiveness.

If the tar­geted killing pro­gram is struc­tured so that it is not as effec­tive as it should be, and its legal foun­da­tion is pre­sented in such a way that polit­i­cal oppo­si­tion becomes over­whelm­ing, then sup­port­ers of remote war­fare and tar­geted killing should be at least as con­cerned as oppo­nents with the issues ana­lyzed in this pol­icy brief.

Below are five key con­cerns raised by this Office of Legal Coun­sel (OLC) White Paper, and how those ques­tions will affect the long-term out­look and via­bil­ity of the tar­geted killing pro­gram. It is impor­tant to note that they demand response from both the exec­u­tive and leg­isla­tive branches. The effec­tive­ness, legal and eth­i­cal chal­lenges are com­plex, and a suc­cess­ful response will be as well.

  • Pub­lic abil­ity to assess the pro­gram is essen­tial to the effec­tive­ness of a broader coun­tert­er­ror­ism strategy.
  • Coun­tert­er­ror­ism pro­fes­sion­als need the abil­ity to cap­ture, detain, inter­ro­gate and try as well as tar­get and kill.
  • Pub­lic con­fi­dence about account­abil­ity is also a key com­po­nent of long-term sup­port for drone programs.
  • Coun­tert­er­ror­ism pro­fes­sion­als need clar­ity about legal author­i­ties and their own respon­si­bil­i­ties, duties, lim­its and protections.
  • Broad legit­i­macy of the pro­gram will also require greater clar­ity about the author­ity under which strikes are con­ducted and where the United States is “at war.”

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Read the whole paper over at the National Secu­rity Net­work.