The 2nd Circuit’s Disclosure Order: A Fresh Opportunity to Revive the Imminence Debate?

On 21 April 2014, the 2nd Circuit Court of Appeals reversed a lower court decision and ordered the US Department of Justice to disclose portions of a classified memorandum written by the Office of Legal Counsel around June 2010, providing legal justification for the targeted killing of Anwar al-Awlaki, an American citizen.

The court decided that the government waived its right to secrecy by publishing a Justice Department White Paper in 2011 and by making repeated public statements on the legality of targeted killings.

At the time of writing, it is unclear when the memorandum might be made public, or whether the government will seek review of the decision.

Although the plaintiffs had not challenged the legality of targeted killings, and the operational details in the memorandum were not affected by the disclosure order, the decision is a clear rejection of the policy of secrecy surrounding the US government’s targeted killings program.

Allegedly, the classified memorandum concluded that al-Awlaki could be lawfully killed, if he could not be captured, because there were reports that he was involved in the war between the US and al-Qaida and posed a significant threat to US citizens, as well as because Yemeni authorities were unable or unwilling to stop him. The sparse details left many wondering about the particular mechanism followed and the laws applied to reach the decision to kill him. Subsequent public statements, the White Paper (WP) and a Fact Sheet released by the White House in May 2013 tried to fill the gap and provide a domestic and international legal framework for the targeted killings of US citizens (and others) abroad. As regards domestic law, while President Obama acknowledged the paramount importance of due process, the WP trivialized (on pp. 5-6) the Mathews v. Eldridge (1976) test through a cursory weighing of private and public interests against each other. As regards international law, while official references to the law of self-defense and the law of armed conflict have been manifold, their applicability and inter-relationship has not been clarified.

It remains to be seen whether the partial disclosure of the memorandum, if effected, will revive the debate and bolster the scrutiny on the US government’s targeted killings program.

Among many concerns of the program, the concept of imminence in itself, and its schizophrenic association with both due process and the law of self-defense merit thorough review and discussion.

On one hand, it has been repeatedly stated that the government’s use of lethal force against a leader of al-Qaida or an associated force who presents an imminent threat of violent attack would be a lawful act of self-defense. On the other hand, the WP claimed that the question whether a threat of a violent attack was imminent belonged to the due process analysis (p. 2). Yet again, when discussing the concept of imminence, the WP made reference to literature tackling the same notion under the law of self-defense (p. 7).

This ambiguousness did not go unnoticed by commentators.

As regards due process, it was pointed out that the constitutional law on when lethal force could be used against a fleeing felony suspect within the United States had a much stricter imminence requirement than that put forward by the WP, and that this narrow precedent is being twisted beyond recognition by the US government.

The concept of imminence put forward by the US government is also foreign to the law of self-defense. The international right of self-defence has a customary basis alongside its treaty-base (Article 51 UN Charter). The majority of the legal doctrine acknowledges today that the customary law of self-defence permits anticipatory action against imminent threats of armed attack within the limits set by the principles of necessity and proportionality (see chapter 10 of my book). It is thus widely agreed that in its core, imminence denotes the existence of a set of circumstances and sufficient knowledge thereof that renders self-defense against a future attack urgent and inevitable.

The answers provided by the US government’s interpretation of imminence to the following three questions dilute at least three crucial elements of the law of self-defense:

-          What qualifies as an imminent threat? An imminent threat can be a merely presumed threat: “the US government may not be aware of all al-Qaida plots as they are developing and thus cannot be confident that none is about to occur.” (WP, p. 8). This interpretation of imminence exceeds even the parameters of the 2002 Bush Doctrine.

-          For how long can an individual be targeted? For as long as the individual is “personally and continually involved” in planning – thus not necessarily carrying out – terrorist attacks against the US. If there is evidence of an individual being involved in past activities posing an imminent threat, and there is no evidence suggesting that he renounced such activities, that individual would remain an imminent threat even without evidence of his continuous involvement (p. 8). This expansion of the time-frame within which self-defense can be used exceeds the limitations imposed by the principles of necessity and proportionality.

-          Who should be regarded as author of an attack? “Al-Qaida and its associated forces” – without much transparency on how such a denomination, used in counterterrorist parlance, can be applied to satisfy the authorship requirement under the law of self-defence. It is widely accepted today that al-Qaida is a decentralized movement with various groups pledging allegiance to the common ideology. Under the law of self-defence, a movement cannot be the author of an armed attack, only an armed group can.

The concerns raised by these answers go well beyond the purpose of the 2nd Circuit’s decision. Nonetheless, although that decision is merely an order of disclosure that may be appealed, it provides an excellent opportunity to restart the debate on the concept of imminence and to push for further clarifications on the applicability of both US domestic and international law to the targeted killings program. Transparency is the precursor of accountability, so let us keep the ball rolling.

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