One aspect of the right to kill debate that is routinely referenced by various administration officials is the supposed fact that lethal strikes are constrained in principle and practice by the requirement that an “imminent” threat exist. In May 2013, President Obama invoked imminence in his first and only speech to reference drone policy, stating, “America does not take strikes to punish individuals; we act against terrorists who pose a continuing and imminent threat to the American people.” In a March 2012 speech, Attorney General Eric Holder laid out the basic framework for determining if and when someone poses an “imminent threat”: “The evaluation [process]…incorporates considerations of the relevant window of opportunity to act, the possible harm that missing that window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States.” Administration officials publicly reiterate that “imminence” is more or less an objective (and high) standard when evaluating terrorist threats using all available intelligence. However, like many other areas concerning the legality of drone strikes, the government guards most details of this process—although information has slowly leaked out over the past several years. In theory, the administration seems to use both principles of international humanitarian law and wartime policy considerations when determining whether an individual poses enough of a threat to be lethally targeted; however, the lack of transparency makes it difficult if not impossible for the public to know how well the government actually balances addressing a particular national security threat with the deprivation of human life.
Proportionality, Necessity and the Laws of War
The administration frequently invokes the standards of proportionality and necessity when explaining the legal justification for a drone strike under a self-defense argument for lethal action. One example comes from John Brennan, former counterterrorism advisor, in remarks from April 2012: “Targeted strikes conform to the principle of necessity…Targeted strikes conform to the principle of distinction…Targeted strikes conform to the principle of proportionality.” These types of declarative statement are common in various official speeches—in that same speech, Brennan also refers to “rigorous standards” and “a careful review”—but there is usually little evidence offered publicly to support the contention that government officials truly adhere to those high standards. This does not necessarily imply that policymakers do not maintain those strict standards in their closed-door decision-making, but the process is not remotely transparent and the details that have leaked do not always seem to support the idea that the use of lethal force is the last resort.
Judging the Threat
One of the most important revelations on lethal targeting is the existence of a so-called “kill list,” which includes the names of suspected terrorists who have been deemed a great enough threat to warrant kill/capture status. According to an exposé by the New York Times, a group of the top national security officials meet each week to review terrorists’ biographies and offer recommendations to President Obama, whose role the authors describe as “personally overseeing the shadow war with Al Qaeda.” It appears that the processes in these meetings have become somewhat codified, thanks in large part to John Brennan, with participants going through a “checklist” of factors that include infeasibility of capture, certainty of the intelligence, and imminence of the threat when adding someone to the list—and involve very senior officials in the administration.
That said, it still seems that the administration remains flexible in its standards in certain circumstances. After an intelligence report shut down U.S. embassies across the Middle East in the summer of 2013, the U.S. briefly but rapidly accelerated drone strikes in Yemen, killing 40 suspected militants but no top-level al Qaeda members. Analysts say this suggests the standards for determining who poses a continuing and imminent threat to Americans really are “elastic,” especially since the intelligence about the plot against a U.S. embassy was so vague. For all the effort to create mechanisms to ensure that a threat is serious enough to warrant lethal action, why have standards at all if they can be so easily tossed aside? The fact that the U.S. launched a drone campaign on par with a wartime bombing raid in a country with whom we are not at war, while admittedly failing to kill a single senior official, seems to imply that neither imminence nor necessity require particularly high standards in triggering the right to kill (even if in limited circumstances). Although perhaps the U.S. already admits to this fact—from the leaked DOJ white paper:
the condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons or interests will take place in the immediate future.