Targeted killings: What are the limits?

Thursday’s confirmation hearings for John Brennan, President Obama’s nominee to head the Central Intelligence Agency, offer a rare opportunity for senators to press the architect of the administration’s policy of targeted killings about its legal rationale and practical application. The urgency of such an inquiry was underlined by the release this week of a troubling Justice Department document suggesting that the administration asserts the authority to assassinate suspected terrorists, including U.S. citizens, even when they aren’t planning an imminent attack — guidelines that could allow for a broad expansion of executive power to authorize such killings.

The 16-page “white paper,” obtained by an NBC News reporter, was intended for the perusal of members of Congress. It argues that the Constitution and the Authorization for Use of Military Force approved by Congress after 9/11 allow for the targeted killing of a U.S. citizen who is “an Al Qaeda leader actively engaged in planning operations to kill Americans” and who cannot be captured. Echoing public statements by Brennan and Atty. Gen. Eric H. Holder Jr., the document also says targeted killings are intended to deal with an “imminent threat of violent attack to the United States.”

That language conjures up a scenario in which an American Al Qaeda terrorist is days or even minutes away from launching an attack. Instead, the document espouses a “broader concept of imminence” in which a suspect can be killed even when the U.S. government lacks “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” Another passage suggests that the determination of whether there is an “imminent” threat can take account of the fact that certain Al Qaeda members are “continually plotting attacks against the United States.”

Members of the Senate Intelligence Committee should press Brennan on this elastic definition of “imminent.” Does it mean that once someone is identified as an “operational leader” of an Al Qaeda-affiliated group, he is automatically put on a list for assassination when the opportunity arises? Was that the case with the New Mexico-born Anwar Awlaki, who was killed in in Yemen in 2011? (In response to written questions from the committee, Brennan wrote that “imminence” is “a highly fact-based determination.”)

That isn’t the only line of questioning suggested by the white paper. The document refers to decisions about targeted killings being made by an “informed high-level official.” Does this refer to the president? The director of the CIA? A White House aide with responsibility for counter-terrorism (Brennan’s current position)?

After the white paper was published by NBC, Sen. Dianne Feinstein (D-Calif.), the chair of the Intelligence Committee, said that the administration’s legal analysis “is now public and the American people can review and judge the legality of these operations.” But the document raises as many questions as it answers, questions that Feinstein and her colleagues must now ask.