The Imminent Question of Imminent Threats

By: Shane Harris

John Brennan's confirmation hearing for CIA Director has suddenly become a lot more consequential. 

In the past few days, we've gotten a window into Brennan's role in the Bush-era terrorist interrogation program--it looks more significant than previously reported--and now comes a leaked Justice Department "white paper" that describes the administration's rationale for why targeted killings of U.S. citizens, a program that Brennan has overseen, are legal.

The revelations in both documents seem obviously engineered to put Brennan in the hot seat about two controversial programs, one of which, targeted killings, some members of the Senate Intelligence Committee still believe they have insufficient information. So, now we know the likely frame for Thursday's confirmation hearing, and I presume that some significant debate will turn on the question of what constitutes an "imminent threat." 

The leaked Justice Department white paper arguably attempts to redefine what most people would consider the common sense definition of imminent threat--that is, an enemy is about to take up arms against you, or is preparing to attack you. Think bombers readying for takeoff, or a foreign nation basing missiles within range of the United States or its allies. 

But that's not the kind of imminence the administration is looking for when deciding whether to kill a U.S. citizen. Indeed, the white paper argues that it would have made no sense to wait for the 9/11 hijackers to board airplanes before moving with lethal, preemptive force against them, had that been an option. 

The paper argues that terrorist groups are always plotting, and that they would presumably strike if they had the opportunity. So if someone is a member of Al Qaeda, or an affiliate, he by definition poses a threat to America. But that doesn't mean said terrorist is poised to strike, and therefore, in a given moment, constitutes an imminent threat. Does it? 

Now we enter a gray area that this white paper is unable to clear up. 

"Imminence must incorporate considerations of the relevant window of opportunity, the possibility of reducing collateral damage to civilians, and the likelihood of heading off future disastrous attacks on Americans," the white paper states in a section that addresses the central issues. (The question of imminence comprises much of the 16-page document.) Nothing in that sentence tells you when a terrorist is judged to be an imminent threat. Rather, it describes the considerations government officials must make when determining whether to kill him now. Or, imminently. 

"Thus, a decision maker determining whether an al-Qa'ida operational leader presents an imminent threat of violent attack against the United States must take into account that certain members of [AQ] (including any potential target of lethal force) are continually plotting attacks against the United States; that [AQ] would engage in such attacks regularly  to the extent it were able to do so; that the U.S. government may not be aware of all [AQ] plots as they are developing and thus cannot be confident that none is about to occur; and that, in light of these predicates, the nation may have a limited window of opportunity within which to strike in a manner that both has a high likelihood of success and reduces the probability of American casualties." 

This paragraph could be summed up as "a list of reasons not to not kill a terrorist."  

The white paper attempts to give some more detail on the decision-making process for concluding that someone is, in fact, imminently threatening the United States. But it's thin.  

"A high-level official [the white paper never specifies that this must be the President] could conclude, for example, that an individual posts an 'imminent threat' of violent attack against the United States where he is an operational leader of [AQ] or an associated force and is personally and continually involved in planing terrorist attacks against the United States." 

Ok, we're getting somewhere. You're an operational leader of a terrorist cell, you're a very dangerous guy. 

"Moreover, where the [AQ] 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 [AQ's] continuing terrorist campaign against the United States would support the conclusion that the member poses an imminent threat." 

That seems a reasonable conclusion to draw, presuming that the evidence of previous activities is sound. I doubt anyone would argue that a terrorist who has attempted to kill Americans, but who has failed, won't try to do so again. 

But nothing in the white paper constitutes a check list of all the requirements or characteristics for becoming an imminent threat in the government's eyes. Does the high-level official rely on visual identification of a target from drone footage? Intercepted communications showing X degrees of separation to a known terrorist group? Human tips? Some combination of the above? Is two out of three enough?  

We're not likely to hear anything about these specifics, not in an open, unclassified hearing of the Senate Intelligence Committee. And the white paper doesn't go there. 

"This paper does not attempt to determine the minimum requirements necessary to render" a lawful targeted killing, it states. So, this paper can be described as the legal rationale for targeted killing in theory, if not as practiced by the Obama administration today. This is not a new revelation. (Indeed, the white paper references some speeches on this subject by senior administration officials.) But the introduction of the white paper into the public domain creates many new dynamics, and not just for Brennan's upcoming confirmation hearing. 

One last point that may have implications beyond the realm of counterterrorism. Does the administration think its legal rationale for targeted killings is flexible enough to be applied to non-terrorist threats to national security? Could it justify, say, killing a member of a hacker collective whom the government believes is trying to take down a power grid with a cyber attack?  

The white paper "does not assess what might be required to render a lethal operation against a U.S. citizen lawful in other circumstances," it states. So, the paper doesn't say the rationale could not be used against hackers. It just doesn't assess the question at all. If the potential breadth of the rationale does come up at Brennan's hearing, we'll be in the land of "hypotheticals," and in Washington, those are always easy to dodge.