But Petraeus might just as well have asked his famous question of a different war -- the covert drone war over which he presided during his brief tenure as director of the CIA.
The drone war is a shadow war, widely reported in the media but officially unacknowledged by the CIA and the White House. Many details remain obscure, but we know that the United States has engaged in "targeted killings" in Pakistan, Yemen, and Somalia, and possibly in Mali and the Philippines as well. The killings have targeted suspected Taliban leaders and terrorists, some identified by name and some targeted as a result of a suspicious pattern of activities. Since the strikes are rarely acknowledged, no one knows precisely how many casualties our shadow war has caused, but media and NGO reports suggest that the number of deaths is somewhere between 3,000 and 5,000.
Although many details remain unknown, we now know a little bit more than we used to about the Obama administration's legal rationale for this shadow war. Monday night, NBC News released a 2011 Justice Department white paper on the question of whether U.S. citizens overseas can be targeted. In the process of examining that question, the paper also offers the most detailed legal theory we've yet seen for the shadow war more generally.
The document is 16 pages long and full of legalese, so here's the CliffsNotes version. If you were worried about whether it was okay for the U.S. government to secretly kill an American citizen overseas, you can relax: The Justice Department says such killings are hunky dory, as long as some "informed, high-level official" decides that citizen poses an "imminent threat" and capture would be "unfeasible."Let's take the white paper's key claims one by one. In and of themselves, each appears uncontroversial -- but the sum of the parts amounts to a recipe for legally sanctioned error and abuse.
1. American citizens overseas can lawfully be targeted and killed by the U.S. government if they take up arms in an armed conflict against the United States. True, and uncontroversial under the law of war (and under U.S. law), as far as that goes. American citizens who joined the German army during World War II could be captured or killed just like any other German soldier.
But this isn't World War II. When the "enemy"wears no uniform and appears on no traditional battlefield.Who is a combatant? What's a "senior operational leader"? What's an "associated force" of al-Qaeda?
2. Anyone overseas -- citizen or not -- who poses an "imminent threat of violent attack" against the United States can be lawfully targeted based on the internationally recognized right to national self-defense, provided that the defensive force used by the United States is otherwise consistent with law of war principles. Again, uncontroversial, as far as it goes: if someone overseas is about to launch a nuclear weapon at New York City, the United States has a perfect right (and the president has a constitutional duty) to use force to prevent that attack, regardless of the attacker's nationality.
But once again, the devil's in the details. To start with, what constitutes an "imminent" threat? Traditionally, both international law and domestic criminal law understand that term narrowly: to be "imminent," a threat cannot be distant or speculative. To the Justice Department, however, "distant and speculative" are apparently perfectly consistent with "imminent": According to the white paper, the requirement of imminence "does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future." On the contrary, since "certain members of al Qaeda are continually plotting attacks ... and would engage in such attacks regularly [if] they were able to do so, [and] the US government may not be aware of all ... plots as they are developing and thus cannot be confident that none is about to occur," the United States can, in effect, target anyone deemed to be an operational leader of al Qaeda or its "associated forces." In effect, the concept of "imminent threat" becomes conflated with identity: Under this definition, any "operational leader" of al Qaeda or its "associates" is, by definition, an imminent threat.3. Killing is okay if capture is not feasible. How do we define "feasible"? What level of risk should be borne before a U.S. citizen (or anyone) is killed in circumstances that permit him no opportunity to surrender, and no opportunity to offer evidence that he has been erroneously targeted?
4. The determination of whether an American citizen overseas can be killed can be made by "an informed, high-level official of the US government." Okay, would that be the president? The CIA director? An Air Force colonel? What if officials disagree? What if that high-level official's information is wrong?5. Checks and balances are for your bank statement, not for the U.S. government. After raising -- and quickly rejecting -- potential constitutional arguments against the targeting of U.S. citizens overseas, the DOJ paper concludes happily that "there exists no appropriate judicial forum to evaluate these constitutional questions." That's because "matters intimately related to foreign policy ... frequently turn on standards that defy judicial application."
This is restating the problem nicely: the standards put forth in the memo are effectively standardless. They consist of sweeping generalizations about legality, but offer no criteria for actually determining legality (or necessity, or strategic wisdom, needless to say).
But that's not a reason to reject any notion of judicial review -- it's the very reason some sort of review outside the executive branch is essential. When you have a secret, standardless process that may result in the killing of U.S. citizens, it would be comforting to have some sort of review mechanism. A judicial warrant procedure like that put in place by the Foreign Intelligence Surveillance Act could be established by Congress. Failing that, an ex post review could reduce the likelihood of error or abuse.I'm ready to believe that some targeted killings can be justified, legally, morally, and strategically, in exceptional circumstances. But U.S. targeted killings long ago ceased to be exceptional -- they've now become the norm, part of the new American way of war, and we can't afford to let them remain in the legal and moral shadows.
So, tell me if this shadow war has any limits, and how those limits will be enforced. Tell me what safeguards there are against abuse. Tell me if there's any limit at all on who we can target, and when, and where. Tell me our objectives in this shadowy war, and how we'll know if we're achieving our objectives. Tell me if our shadow war is making us safer, or just making our world less stable.
Tell me how this ends.