I wrote a paper for the National Security Network on what the OLC White Paper means for oversight and counterterrorism effectiveness.
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:
- 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;
- Capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and
- 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.”
Read the whole paper over at the National Security Network.