Innocent Until Proven Guilty; Imminent Until Proven — Too Late!

Those defending the language on imminence in the white paper released last week are right on one count: it is not new language. Below the fold, I’ve excerpted the language on imminence from three different formulations on imminence –Brennan’s speech at Harvard, the white paper, and Holder’s Northwestern speech — to show the consistency (and also, with John Brennan’s September 16, 2011 speech, exactly two weeks to Anwar al-Awlaki notice that this was now US policy).

All three point to al Qaeda’s non-combatant structure to describe the need for a more flexible concept of imminence. Both the white paper and Holder’s speech discuss a “window of opportunity,” which I find to be one of the more provocative aspects of this definition. And while Holder’s speech appears to have been edited to make it pretty, it is almost precisely the ideas presented in the white paper on imminence. There is clear continuity between Brennan’s 2011 speech, the white paper, and Holder’s speech.

Which is why I’m interested in the language Brennan used last week when responding to Angus King’s proposal for a FISA court for drone (and what should be targeted killing generally).

It’s telling not because it introduces wholesale new ideas. But because it makes clear what is implicit — but unstated — in the three other formulations.

A person who poses an imminent threat does not have to have committed any crime in the past. Imminence is exclusively about the future possibility of violence, not necessarily past involvement in it.

BRENNAN: Senator, I think it’s certainly worth of discussion. Our tradition — our judicial tradition is that a court of law is used to determine one’s guilt or innocence for past actions, which is very different from the decisions that are made on the battlefield, as well as actions that are taken against terrorists. Because none of those actions are to determine past guilt for those actions that they took. The decisions that are made are to take action so that we prevent a future action, so we protect American lives. That is an inherently executive branch function to determine, and the commander in chief and the chief executive has the responsibility to protect the welfare, well being of American citizens. So the concept I understand and we have wrestled with this in terms of whether there can be a FISA-like court, whatever — a FISA- like court is to determine exactly whether or not there should be a warrant for, you know, certain types of activities. You know… KING: It’s analogous to going to a court for a warrant — probable cause…


BRENNAN: Right, exactly. But the actions that we take on the counterterrorism front, again, are to take actions against individuals where we believe that the intelligence base is so strong and the nature of the threat is so grave and serious, as well as imminent, that we have no recourse except to take this action that may involve a lethal strike.

The white paper actually has the most language about past deeds, but with the language about membership plus past involvement in activities that pose an imminent threat that I keep pointing to, it doesn’t actually require past deeds either. It does, however, at least imply that an American must be involved in past crimes to be deemed an imminent threat.

John Brennan’s language last week does not.

And that’s precisely the explanation he gave for why the courts aren’t the appropriate place to measure imminent threat: because they only get involved when people have already committed crimes. This new definition of imminence envisions declaring people to be imminent threats even before they’ve committed a crime.

One note about this. Brennan ties all this to the President’s responsibility “to protect the welfare, well being of American citizens.” The biggest threat to the well being of the American citizens is not terrorists at this point, not by a long shot. It’s the big banksters who serially collapse our economy and require bailouts (and, it should be said, are often funding terrorists and drug cartels along the way because it is profitable).  Does this definition of “imminent” threat extend to the banksters who are a much more systematic front than the rump of al Qaeda is at this point?

In any case, be warned. If the plan for a FISA Drone (and Targeted Killing) Court moves forward, it will not be measuring guilt — what courts were established to measure. But instead, potential future guilt.

Eric Holder, Northwestern Speech, March 5, 2012

First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

The evaluation of whether an individual presents an “imminent threat” incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States.   As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice – and to cause devastating casualties.   Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military – wearing uniforms, carrying arms openly, or massing forces in preparation for an attack.   Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning – when the precise time, place, and manner of an attack become clear.   Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed.

Whether the capture of a U.S. citizen terrorist is feasible is a fact-specific, and potentially time-sensitive, question.   It may depend on, among other things, whether capture can be accomplished in the window of time available to prevent an attack and without undue risk to civilians or to U.S. personnel.   Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack.   In that case, our government has the clear authority to defend the United States with lethal force.

Unknown Author, White Paper, November 8, 2011

First, the condition that an operational leader present an “imminent” threat of violent attack against the United States 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. Given the nature of, for example, the terrorist attacks on September 11, in which civilian airliners were hijacked to strike the World Trade Center and the Pentagon, this definition of imminence, which would require the United States to refrain from action until preparations for an attack are concluded, would not allow the United States sufficient time to defend itself. The defensive options available to the United States may be reduced or eliminated if al-Qa’ida operatives disappear and cannot be found when the time of their attack approaches. Consequently, with respect to al-Qa’ida leaders who are continually planning attacks, the United States is likely to have only a limited window of opportunity within which to defend Americans in a manner that has both a high likelihood of success and sufficiently reduces the probabilities of civilian casualties.


By its nature, therefore, the threat posed by al-Qa’ida and its associated forces demands a broader concept of imminence in judging when a person continually planning terror attacks presents an imminent threat, making the use of force appropriate. In this context, 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.


With this understanding, a high-level official could conclude, for example, that an individual poses an “imminent threat” of violent attack against the United States where he is an operational leader of al-Qa’ida or an associated force and is personally and continually involved in planning terrorist attacks against the United States. Moreover, where the al-Qa’ida 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 al-Qa’ida’s continuing terrorist campaign against the United States would support the conclusion that the members is an imminent threat. [my emphasis]

John Brennan, Harvard Law Speech, September 16, 2011

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.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

16 replies
  1. earlofhuntingdon says:

    It’s a problem killing someone who isn’t “operational”? Redefine as a valid target anyone you like. Claim, for example, that any “adult male” (or female), actually hit in a unilaterally US-declared “war zone” is an “insurgent”, a vague category that makes anyone liable to be put under sentence of death by the USA.

    It’s Humpty Dumpty-ish, it’s Newspeak. The rhyme or reason boils down to whatever el presidente wants, he gets. Which makes that “power” of el presidente different from that of a junta leader or drug lord how?

    A FISA-style drone assassination approval “court” would be a rubber stamp asked for and used in secret. It would be the smallest of fig leaves, but one that seems to have an inglorious bipartisan attraction inside the beltway. It’s the beltway responding to its Call of the Wild. Government, rule of law, the most powerful tool of the powerful is restraint? Never mind.

  2. scribe says:

    It is most reassuring that the United States government has fouind a way to infallibly predict the future.

    With that skill developed, we should have them play the stock market.

  3. greenbird says:

    is anyone/no one charged with the yet-to-be-widely-reported-in-large-enough-type “armed” drone searching (and perhaps planning to be used for eliminating) Dorner in CA ? are there no rules/officials responsible for employing it/them ? i predict a big mess.

  4. Peterr says:

    If people are going to draw an analogy with something within the existing legal system, going to a court to get permission to put someone on a kill list strikes me as akin to going before a judge to get a search warrant.

    The court isn’t signing off on guilt or innocence, but is saying “before you have permission to seize this person’s property or conduct a search, you have to demonstrate you have probable cause to connect this person with some crime (either past or ongoing).”

    If you have to get a judge’s permission before you walk into someone’s home without their consent, it makes sense to me that you should get a judge’s permission before you blow up their home without their consent.

  5. P J Evans says:

    Most sensible people would agree with you. Too many people, though, seem to lose all sense when anyone mentions terrorism, including way too many people in government.

  6. Frank33 says:

    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.

    Al Qaeda has no traditional command structure because it is a criminal gang. There are a thousand generals and admirals, and that probably outnumbers all of the Al Qaeda members.

    Bin Laden and other Al Qaeda were or are, parts of the “off the shelf entities” that Ollie North created. Bin Laden worked for the CIA and the Bin Laden Family probably is the Secret Government of Saudi Arabia.

    The Al Qaeda Terrorists were successful and Brennan and the other spymasters were rewarded even though they failed at stopping the 9-11 attacks. Then Benghazi, and another suspicious cabal of neo-cons contriving more implausible events. Definitely outside of the traditional command structure.

    Also, Brennan does not use that traditional command structure either. Brennan uses assassinations and torture, same as Ollie North.

    John Brennan, President Barack Obama’s Deputy National Security Adviser, had been authorizing ‘unilateral operations in North Africa outside of the traditional command structure

    (Deputy National Security Advisor) John Brennan also ran a highly compartmentalized program out of the White House in regard to weapons transfers, and Stevens would not have been trusted with that type of information. Stevens likely helped consolidate as many weapons as possible after the war to safeguard them, at which point Brennan exported them overseas to start another conflict.

  7. CTuttle says:

    The plot thickens… David Petraeus was brought down after betrayal by vengeful CIA agents and his own bodyguards who made sure his affair was exposed, claims new book

    – Brandon Webb, a former Navy SEAL, and Jack Murphy, a former Green Beret, reveal the new claims in their book ‘Benghazi: The Definitive Report’

    – Petraeus was humiliated after a ‘palace coup’ by high-level intelligence officers who did not like the way he was running the CIA, authors say

    – The book also claims that Petraeus and Ambassador Chris Stevens were caught off guard by Benghazi consulate attack because they weren’t briefed about on-going U.S. military operations in Libya

    – Webb and Murphy say Benghazi attack was a retaliation for secret raids authorized by Obama security adviser John Brennan

  8. emptywheel says:

    @Peterr: That IS the analogy people are making. Brennan even did so.

    But the point is, if you search someone’s home on faulty claims, the evidence is suppressed. (Well, not anymore but it used to be before the Fourth had been defuncted). But if you kill someone on faulty claims (sa, Abu Zubaydah’s torture claims), it’s a little late.

  9. TarheelDem says:

    Defenders of this policy continue to try to move the discussion from crime to the “law of war”. From due process to “self-defense”. This is the pertpetuation of the misdirection of the Bush administration in response to 9/11.

    The slippery notion of imminence dates back to the late 1940s discussions of imminent nuclear attack that fueled the executive grasping the power to start a war.

    In fact there have been not imminent attacks that necessitated the bypassing of the Congressional power to declare war. Steps toward war unfold over days, weeks, and months.

    And wars, which are politics by other means, are very hard to end when you are dealing with non-state actors. There is no counterparty to negotiate with. Therefore, non-state actors are best treated under criminal law.

  10. ess emm says:

    I dont see how your analogy is appropriate. When a judge grants a search warrant it does not deprive the suspect of life.

    Of course no one knows how a secret kill-list court would work. Would future crimes be part of it, assessing the quality of intelligence, judging imminence? And as Marcy points out, how would the judge make sure the government isnt lying or lazy?

    Only a trial for past actions makes sense. I dont know how to condemn somebody to death for what the government is scared he MIGHT do.

  11. ess emm says:


    “The slippery notion of imminence dates back to the late 1940s discussions of imminent nuclear attack that fueled the executive grasping the power to start a war.”

    I forget who’s argument it is (Garry Wills?) but it seems difficult to have a consistent set of beliefs that can give the President the singular power to incinerate the world in a nuclear holocaust but denies him the power to kill a measly “American citizen of whom America would [not] be proud”.

    As a President it must be hard to accept.

  12. Peterr says:

    @emptywheel and @ess emm: No, Brennan argues against the courts having any role at all in this. From the last blockquote in the post:

    Our tradition — our judicial tradition is that a court of law is used to determine one’s guilt or innocence for past actions, which is very different from the decisions that are made on the battlefield, as well as actions that are taken against terrorists. Because none of those actions are to determine past guilt for those actions that they took.

    Brennan is trying to say “the courts have no place in this, because we’re not talking about guilt for past actions.” I’m arguing that the courts DO have a place in judging governmental conduct APART FROM settling questions of guilt or innocence — with the example of search warrants.

    Brennan wants to exclude legal oversight completely; I’m arguing that legal oversight has its place even separate from adjudicating guilt and innocence.

    How would the judge make sure the government isn’t lying or lazy? The same way they do with requests for a search warrant. One would hope, though, that since we’re talking about someone’s life here, such a request would get more than a cursory look.

    And let me be clear: all of this discussion on my part assumes we will have a drone program. With that as a given, I want as much oversight of that program as possible. If that makes it difficult to use the drones, good. It should be difficult. It should be extremely difficult. Like the death penalty in ordinary courts, any time the government contemplates going to the extremes of taking someone’s life, it should be done with as much rigorous oversight and judicial second-guessing as possible.

    “Sorry about that — we’ll buy you a new door” may work for a search that was not warranted, but fixing a drone strike against someone on a kill list for the wrong reason is not rewindable.

  13. TarheelDem says:

    @ess emm: I’m wanting us to revisit those 1940s arguments and redo the institutional structure of US national security institutions that have eroded Constitutional action over the past 66 years. So the answer, Mr. President, is neither.

  14. emptywheel says:

    @Peterr: i didn’t include where Brennan went on to entertain it.

    What I believe will happen is, 1) Contrary to reports, Brenann will keep a drone program at CIA, where it is most problematic legally (of course he will–otherwise why would Pakistan be a drone rule book exception!) 2) in an effort to NOT put any regulations on the program but to get more buy-in, Brennan will now come out in favor for courts.

    This will put Article III judges in an almost untenable position, largely bc Congress hasn’t done ANYTHING to put limits on this program and has not even peeped (with the notable exception of Ron Wyden) about all the problems with CIA conducting this program. And so, since judges will have no giudelines on HOW to rule on these, they will just defer to the govt.

  15. BOONDI says:

    You people in the good ol USA have lost the plot.

    If anyone can say “There is imminent threat from personX” and then kill them, they have removed any semblance of reason or justice from the system.
    If no crime has been commited, then there is NO justification to issue what is a death sentence.

    What happens if this becomes accepted practice?
    Who is next?
    Person A says to police, “I think person X is a terrorist.” Can the police then go and kill person X.

    Murder is murder.
    I demand the death penalty for those who demand the right to kill without cause.

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