Targeted Killing: Litigation

The Clear and Convincing Standard and Citizen Drone Strikes

By Wells Bennett
Friday, February 28, 2014, 3:14 PM

When last we debated the Government’s legal authority to kill an American terrorist overseas, some big-ticket questions had to do with proof: exactly how much evidence would be required before executive branch officials would approve a lethal drone strike against U.S. citizen?  And what sorts of proof would suffice, in establishing a target’s stature in Al-Qaeda, his role in past attacks, his continuing involvement in planning future attacks, and so forth?

Answers have been hard to come by. The Department of Justice’s White Paper was all but silent in this regard, having said that lethal force could be lawfully used under some Awlaki-ish circumstances that the document took as given. (The White Paper did claim that lethal targeting does not require "clear evidence" that a specific attack will occur in the near future.) So too with the President’s NDU speech and policy guidance, which later set forth principles to govern the use of force in operations conducted “outside the United States and areas of active hostilities.” Both of these notably insisted upon "near certainty" that civilians will not be killed in drone strikes; the policy guidance also called for "near certainty" that a terrorist target be present at the site of an attack. And yet neither explicitly set the threshold that must be met, in demonstrating that the target is, in fact, who the government believes him to be.

Such context makes today’s New York Times story about the possible targeting of an American known as Abdullah al-Shami a bit of an eyebrow raiser (emphasis mine).  From the piece:

“We have clear and convincing evidence that [al-Shami's] involved in the production and distribution of I.E.D.’s,” said one senior administration official, referring to improvised explosive devices, long the leading killer of American troops in Afghanistan.

It happens that “clear and convincing evidence” is an established legal standard, one lying somewhere between the “preponderance of the evidence” that applies in many civil disputes, and the “beyond a reasonable doubt” standard that prosecutors must satisfy in criminal trials.

So what, then, should we make of this “senior administration official’s” remark---particularly given the "near certainty" that officials must have, about the presence of a terrorist target at a particular place located "outside ... areas of active hostilities?"  Does the official's quote hint that the “clear and convincing” standard broadly governs the executive branch’s decision to use lethal force in cases such as al-Shami's---that is, to target him to begin with?  Of course's there's no way to know. For what it is worth, it seems more likely that the statement was intended only to underscore one of the reasons why the Administration believes al-Shami to be quite the bad guy. Still, a "senior administration official's" willingness to refer publicly to a well-known legal standard, while in conversation with a New York Times reporter about a contemplated strike against a U.S. citizen, is ... intriguing.