The central substantive issue, legally and morally, in the administration’s Targeted Killing White Paper is how the concept of an “imminent threat” should be understood. This is where much of the debate is going to focus. Already, outrage from American critics has been directed to this point, as in the response from Jeff Rosen and, from the ACLU, Jameel Jaffer. For example, Jaffer argues that the administration “redefine[s] the word imminence in a way that deprives the word of its ordinary meaning.” In my view, these criticisms rest on a fundamental confusion, but it is a confusion that the White Paper itself also reflects.
The source of the problem is trying to reason from the context of domestic threats to the international context. Jeff Rosen, for example, argues that the constitutional law on when police can shoot a fleeing felon within the United States has a much tighter imminence requirement than the White Paper does; he complains that the White Paper twists precedents like this beyond recognition.
The impulse to turn to these domestic examples is understandable: given that we have so little domestic law on these issues in the international realm, it is natural to try to fill in that gap by turning to how the law treats imminent threats within the U.S. Moreover, the White Paper invites these comparisons, because it too relies on these domestic analogies.
The problem, though, is that domestic law is developed in the context of a specific set of institutions and structures that simply don’t exist in the international sphere. Put another way, built into the legal rules in the domestic context is a whole set of premises and taken-for-granted institutions. In particular, deadly force is justified only when the threat is imminent in the narrowest sense precisely because the assumption is that there are many other means available for neutralizing that threat if it is not immediate. We have domestic law enforcement capacities that allow arrest; we have civil commitment proceedings for the dangerous mentally ill. These and other institutional alternatives might be imperfect in practice. But the domestic law is built, and has to be built, on the understanding and premise that these other institutional structures can keep us safe against those threats that are not immediately imminent.
In the international sphere, of course, the entire problem in the first place is that there are no alternative institutional structures in place that can effectively neutralize the threat in weak or failed states, like Yemen. We can afford to run certain risks in domestic contexts, and the law requires that we do so, because these alternative institutional mechanisms exist. To take the law that is embedded within these other mechanisms and try to extend it formally to contexts without these mechanisms is to forget the underlying reasons the domestic law on imminence has the structure that it does.
But the White Paper itself does not bring sufficient clarity to these issues. It argues for a broader concept of imminence based solely on the unique nature of the threat that terrorism poses. The threat is different, but that is an incomplete and inadequate explanation that does not get at the root of the differences. The White Paper emphasizes, of course, that capture must not be feasible, but it fails to appreciate how that point is central to the imminence issue. And indeed, the White Paper then turns around and encourages this confusion by invoking the domestic examples of imminent threats and trying to argue that targeted killings essentially meet the domestic law treatment of the issue.
My point is not to take a specific position on what the exact boundaries of imminence ought to be in the context of self-defense against threats that originate overseas from non-state actors. It is to say that we will constantly be talking past each other at the very foundations of this issue if we assume that we should ground that discussion on how imminence is dealt with inside a functioning, domestic legal system. Also, I am focusing here only on the debates about how the U.S. Constitution should be understood in this context, not on how the concept of imminence should be understood as a matter of international humanitarian or international human rights law. The points made here might well have some relevance to the international law side, but that is a different body of law, with its own principles and rules, and I am not making any direct argument about how international law should treat imminence (on that, see this post from Kevin Heller).