Perhaps the most puzzling and opaque aspect of President Obama's speech today involves the question of whether he did, or didn't, narrow the criteria for targeting in drone strikes. The wording of the speech on this point is incredibly careful, and to parse it, one has to read it next to prior administration statements on targeting rules---a subject Ken Anderson and I treat in some detail in both Chapters 1 and 2 of Speaking the Law. The following is my best effort at an early read.
There are two key paragraphs on targeting standards. The first reads:
Beyond the Afghan theater, we only target al Qaeda and its associated forces. Even then, the use of drones is heavily constrained. America does not take strikes when we have the ability to capture individual terrorists---our preference is always to detain, interrogate, and prosecute them. America cannot take strikes wherever we choose---our actions are bound by consultations with partners, and respect for state sovereignty. America does not take strikes to punish individuals---we act against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat. And before any strike is taken, there must be near-certainty that no civilians will be killed or injured---the highest standard we can set.
The second key paragraph says:
Of course, the targeting of any Americans raises constitutional issues that are not present in other strikes---which is why my Administration submitted information about Awlaki to the Department of Justice months before Awlaki was killed, and briefed the Congress before this strike as well. But the high threshold that we have set for taking lethal action applies to all potential terrorist targets, regardless of whether or not they are American citizens. This threshold respects the inherent dignity of every human life.
Let's start by clearing the brush and identifying what is certainly not new in these criteria.
Beyond the Afghan theater, we only target al Qaeda and its associated forces.
Presuming that this means that the U.S. targets only Al Qaeda and associated forces within the context of the AUMF-authorized conflict, this is nothing new or interesting---just a restatement of the law regarding whom the US considers covered by the authorization to use force. (The only oddity here is that the President did not preserve in this statement---as administration officials normally do---the possibility of self-defense uses of force against people or groups not covered by the AUMF.)
America does not take strikes when we have the ability to capture individual terrorists---our preference is always to detain, interrogate, and prosecute them. America cannot take strikes wherever we choose---our actions are bound by consultations with partners, and respect for state sovereignty.
These statements are fully consistent with prior administration speeches, which have emphasized that it is the unqualified preference of the US government to take terrorist suspects alive and have also made clear that respect for other countries' sovereignty limits US action.
That leaves three statements that may imply a narrowing:
- "[W]e act against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat."
- "[B]efore any strike is taken, there must be near-certainty that no civilians will be killed or injured---the highest standard we can set."
- "[T]he high threshold that we have set for taking lethal action applies to all potential terrorist targets, regardless of whether or not they are American citizens."
Taken at face value, the president seems to be saying that all drone strike targets will be evaluated according to the same criteria as the strike that killed Aulaqi was---that is, they will only proceed against senior operational leaders of Al Qaeda or associated forces, who pose an imminent threat, whose capture is not feasible, and whose targeting is consistent with the laws of war. And they will only take place where there is "near-certainty" of zero civilian casualties. Given what we know about drone strikes to date---which have not always targeted senior operational leaders and have not always (or nearly always) produced zero civilian casualties---this would seem to be narrowing.
Yet if you go back and look at past administration statements about targeting standards, the difference becomes a little less clear. Consider John Brennan's speech at Harvard Law School in September 2011, in which he said:
Others in the international community—including some of our closest allies and partners—take a different view of the geographic scope of the conflict, limiting it only to the “hot” battlefields. As such, they argue that, outside of these two active theatres, the United States can only act in self-defense against al-Qa’ida when they are planning, engaging in, or threatening an armed attack against U.S. interests if it amounts to an “imminent” threat.
In practice, the U.S. approach to targeting in the conflict with al-Qa’ida is far more aligned with our allies’ approach than many assume. This Administration’s counterterrorism efforts outside of Afghanistan and Iraq are focused on those individuals who are a threat to the United States, whose removal would cause a significant---even if only temporary---disruption of the plans and capabilities of al-Qa’ida and its associated forces. Practically speaking, then, the question turns principally on how you define “imminence.”
We are finding increasing recognition in the international community that a more flexible understanding of “imminence” may be appropriate when dealing with terrorist groups, in part because threats posed by non-state actors do not present themselves in the ways that evidenced imminence in more traditional conflicts. After all, al-Qa’ida does not follow a traditional command structure, wear uniforms, carry its arms openly, or mass its troops at the borders of the nations it attacks. Nonetheless, it possesses the demonstrated capability to strike with little notice and cause significant civilian or military casualties. Over time, an increasing number of our international counterterrorism partners have begun to recognize that the traditional conception of what constitutes an “imminent” attack should be broadened in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.
The convergence of our legal views with those of our international partners matters.
In other words, a year and a half ago, the administration was saying publicly that there was a convergence with allies, in which allied governments were adopting a more flexible understanding of imminence such that United States practice was really "far more aligned" with those countries' practice than people believed. How far can that be from "continuing and imminent"?
Similarly, Brennan's Wilson Center speech from April 30, 2012 did not use the "imminence" language, but I'm not sure I understand the difference in practical terms either between the "significant threat" language he used then and the flexible understanding of imminence he had used six months earlier---or between either and the "continuing and imminent" language the President used today. A year ago, Brennan described matters as follows:
For example, when considering lethal force we ask ourselves whether the individual poses a significant threat to U.S. interests. . . . .
And what do we mean when we say significant threat? I am not referring to some hypothetical threat, the mere possibility that a member of al-Qaida might try to attack us at some point in the future. A significant threat might be posed by an individual who is an operational leader of al-Qaida or one of its associated forces. Or perhaps the individual is himself an operative, in the midst of actually training for or planning to carry out attacks against U.S. persons and interests. Or perhaps the individual possesses unique operational skills that are being leveraged in a planned attack. The purpose of a strike against a particular individual is to stop him before he can carry out his attack and kill innocents. The purpose is to disrupt his plans and his plots before they come to fruition.
To put the matter simply, I can't tell at this stage whether there's really been a substantial narrowing---that is, whether there are people whom the US used to target whom it is, as a matter of new policy, no longer targeting because the President regards the AUMF conflict as winding down and in its end phase. To be sure, the number of drone strikes in Pakistan has fallen sharply, but I had taken that to be a function largely of sovereign pressure. This question strikes me as an area ripe for additional clarification from the administration.