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Are People Overreading the White Paper on Imminence?

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Tuesday, February 12, 2013 at 7:25 AM

I received an email yesterday responding to Susan and my post, in which we suggested that that the White Paper had little new in it. Specifically, the email argued that Susan and I had understated the degree to which the White Paper broke new ground on the question of imminence. We have heard this complaint before, and the question is an important one. After all, the imminence discussion is the only major area—at least in the public debate—where the White Paper even arguably makes a large marginal contribution. So the question goes to whether the public controversy over the memo is a tempest in a teapot or just a tempest.

The author of the email preferred I not make it public, but the argument was similar to one that Kevin Jon Heller has made in public. Shortly after we posted our piece, Kevin posted the following in Facebook comments:

I strongly disagree with this claim: “[NBC News reporter Michael] Isikoff then says, rather more tendentiously, that the document authorizes the killing of U.S. citizens who are top operational Al Qaeda figures ‘even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.’ This latter point is, to put it mildly, a stretch.”

That is most certainly not a stretch. Indeed, you quote the language that explicitly supports it. As the White Paper makes clear, the U.S. reserves the right to kill a US citizen even if it has no evidence that he is planning a future attack, as long as he has “recently” been involved in similar activities and has not “renounced or abandoned” those activities. (Whatever that means.) Put more simply: if you have recently done something bad, we can presume you are going to do bad things again and kill you, even if we don’t have any evidence that you are.

That claim, which shifts the burden of proof onto the US citizen who has been involved in previous hostile activities to prove that he is no longer a threat, is indeed a “revolutionary advance” over Holder’s speech in March. Nothing in that speech suggested that the U.S. no longer needs to have any evidence that a U.S. citizen is planning a future attack; it simply broadened the window in which an attack can (in the U.S. view) be considered imminent.

I think both Kevin and my correspondent yesterday are overreading the memo on imminence—as are a lot of people in the press and a lot of commentators. So for whatever it’s worth, here is how I read it.

I don’t think it’s right to say—as Isikoff did in his article and as Kevin defended—that the memo authorizes the killing of top Al Qaeda leaders “even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.” The memo, rather, says something more modest: that a finding of imminence does not require “clear evidence” that “a specific attack” will take place in the “immediate future.” It goes on to say that for those senior Al Qaeda leaders who are “continually planning attacks,” one has to consider the window of opportunity available in which to act against them and the fact that another window may not open before an attack comes to fruition. The result is that a finding of imminence for such a senior-level Al Qaeda operational leader can be based on a finding that such a figure is “personally and continually” planning such attacks—not on a finding that any one planned attack is nearing ripeness. In other words, as a general proposition, far from saying that there can be targeting in the absence of evidence of a plot, the memo requires a conclusion that the target is personally and in an ongoing fashion engaged in plots against the United States. This is why Susan and I regarded Isikoff’s characterization of the memo’s treatment of imminence as a stretch.

Second, and more generally, I think Heller—and a lot of other people—are overreading the key paragraph about imminence that appears on page 8 of the memo:
a high-level official could conclude, for example, that an individual poses an “imminent threat” of violent attack against the United States where he is an operational leader of Al Qa’ida or an associated force and is personally continually involved in planning terrorist attacks against the United States. Moreover, where the al-Qa’ida member in question has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qa’ida’s continuing terrorist campaign against the United States would support the conclusion that the member poses an imminent threat.
I read this passage rather more narrowly than Heller does. In my view, the first sentence of the paragraph states the general rule: that an Al Qaeda operational leader may be considered an imminent threat if he is “personally and continually” planning attacks against the United States. The second sentence states the view that when evaluating whether a potential target is personally and continually planning such attacks, his recent activity is important to that evaluation, and a recent history of plotting major attacks will support the inference that a person is currently personally and continually plotting such attacks—at least to the extent it is not contradicted by some sort of renunciation of violence. This strikes me as both clearly correct and as unsurprising. If one is trying to assess whether Anwar Al Aulaqi is personally and continually planning major attacks against the U.S., after all, surely it is not irrelevant that he had only just recently coaxed Umar Farouk Abdulmutallab onto a plane with a bomb, emailed with folks in Britain about how to carry out attacks on aviation there, and counseled Nidal Hassan in the run up to his shooting up Fort Hood. To the contrary, surely a pattern of behavior like that supports an inference—at least to some extent—that this is a person who is continually plotting attacks of this nature. And surely it is also relevant that he has not merely not renounced such attacks but is also releasing videos calling for them. 
 
Whether a pattern of this sort would adequately and on its own support a finding that an individual is continually involved in plotting major attacks would seem to me to depend on how recent the pattern was, and how extensive. But I don’t think there is anything especially remarkable about the government’s position here that for senior operational figures, recent-past leadership conduct of an operational nature can create a rebuttable presumption about a figure’s current role.
 
In the interests of full disclosure, I should note that when I laid this argument out in Facebook comments on the original post, Kevin responded as follows:
With respect, I think you are underreading the relevant language. The “Moreover” matters—it divides individuals posing “imminent threats” into two discrete categories: those who have been “personally and continually involved in planning terrorist attacks against the United States”; and those who have not been personally and continually involved, but who have recently been involved and have not renounced or abandoned those activities.
I don’t think this is right. The relevant language here immediately follows the White Paper’s page-long discussion of the need for a less temporal understanding of imminence, one that argues throughout for tying imminence to the idea of continual plotting. The paragraph specifically situates the discussion in this context by beginning with the words “With this understanding.” So if the words following the “moreover” represent an entirely independent basis for a finding of imminence, the notion really comes out of left field. The better reading, it seems to me, is that they represent a statement of analytical approach to assessing whether a person meets the threshold the previous page has posited as an alternative to a temporal imminence standard.
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