Features, Online — March 31, 2014 at 10:36 pm

Hostage-Takers and Fleeing Felons: Questioning Two Analogies to the “Imminent Threat” of Terrorist Attack from Abroad

By Amien Kacou*

The US government has been criticized for invoking the right to self-defense to justify its targeted killings of suspected al Qaeda terrorists. Critics argue that the indefinite, armed conflict is too expansive and does not provide enough certainty and transparency as to the identity and culpability of its targets to ensure compliance with international law.

Targeted killings in response to “imminent” terrorist threats are similarly problematic. The President is not required to provide evidence of a specific attack, allowing preemptive action against individuals “continually plotting” against the United States. Proponents of this broader conception of imminence argue that this use of force is analogous to police officers’ use of lethal force against hostage-takers and fleeing felons. These analogies are misguided.

Police Officers Using Lethal Force Against Hostage-Takers

Benjamin Wittes argues that suspected terrorists are similar to armed hostage-takers who US police officers can legally shoot. He observes that “police officers will not wait until the threat to the hostages is imminent in the sense that the hostage-taker is literally lifting his gun to kill innocents in real time” before taking lethal action. He acknowledges that the threat of harm to hostages may be temporally more imminent than the threat of harm from a terrorist attack. Alan Dershowitz avoids this complication by proposing that the hostage-taker’s primary goal might be extended negotiations.

However, this analogy conflates “real time” with potential speed and uncertainty with risk.

It is reasonable to shoot armed hostage-takers not just when they are about to kill hostages (immediately in real time) but so long as they retain the immediate opportunity to do so quickly at any time (with potential speed). This opportunity is a function of hostage-takers’ spatiotemporal proximity to their hostages.

By contrast, US drone targets like senior al Qaeda leaders are not proximate to the United States. They live in places such as Pakistan and Yemen and there is no evidence they can access long-range, guided or remote control weapons that could reach the US. While a terrorist could communicate orders to US operatives in real time, as Lashkar-e Taiba did during the 2008 Mumbai attacks, this is unlikely. It is logistically difficult to set up such an operation, senior al Qaeda leaders rely primarily on slow, painstaking systems involving couriers and underlings rather than mobile phones, and even where terrorists try to communicate, the US tracks, taps, and disrupts mobile phones,. Likewise, the probability that terrorists could successfully launch a significant cyber-attack or use a cell phone to detonate a bomb from thousands of miles away is low.

The highly specifiable “risk” that an armed hostage-taker poses is not similar to the uncertainty that a terrorist attack could happen at any time. It is more reasonable to shoot armed hostage-takers because they, unlike faraway terrorists, have an immediate opportunity to kill. They have already created the rough equivalent of evidence of a specific attack– the standard that the US government has explicitly declined to follow in targeted killings.

In short, even though the terrorist threat is “far less controllable and much more threatening than a mere hostage standoff,” a smart policy limits how far the government will go in attempting to preempt unknown unknowns, acknowledging that absolute security is a chimera. Blindly substituting potential damage for lack of probability in crafting rules for the use of force might lead to costly overreaction.

Police Officers Using Lethal Force against Fleeing Felons

Wittes and Dershowitz also analogize to the law enforcement “fleeing felon” rule. In Tennessee v. Garner, the US Supreme Court held that a police officer may use deadly force against a fleeing suspect if necessary to prevent the suspect’s escape, if “the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Might the US government apply a similar analysis to persons who have “recently been involved in activities posing an imminent threat of violent attack against the United States?”

US drone targets are seldom (if ever) struck down when returning from an attack. Al Qaeda leaders (presumably responsible for past attacks) are hiding in places such as Pakistan and Yemen. However, the fleeing felon rule is not the “hiding felon rule.” It might not apply to felons years, weeks, or even hours after they have committed their crime, or solely on account of their history of violence (however extreme). US Police Departments also normally only use deadly force if the threat is actually immediate.

Of note, the Garner Court rejected an older, more permissive common law fleeing felon rule on several grounds, including that the common law rule had “developed at a time when weapons were rudimentary”– that is, before police officers began carrying handguns and thus became capable (for the first time) of using “deadly force from a distance as a means of apprehension,” with less risk to their own safety and “harsher consequences” for suspects. Similarly, the recent advent of drone technology, by eliminating all remaining risk to government agents (allowing them “to project power without projecting vulnerability”), might justify further constraining the use of deadly force against would-be attackers. (In contrast, terrorists have relied essentially on the same readily accessible weapons for forty years.)

Final Considerations

US domestic law enforcement has unique institutional and other accountability features that better justify the use of deadly force. For example, in both hostage-taker and fleeing felon situations, there is likely to be greater public transparency and certainty in real time as to the events taking place and the identity and probable culpability of suspects. This is due to the fact that police operations are more directly visible and more susceptible to regular media coverage (or social media coverage) than targeted killing operations. In addition, sanctions against excessive police force are more readily obtainable due to the democratic system and ex post facto judicial process (see Garner). For these reasons, it is more likely that police officers will use deadly force only when reasonable.

Finally, Wittes and others insist that imminence should be calibrated in light of the alleged difficulty of capturing terrorist suspects. This is questionable in principle and practice. Capture is almost always more risky or inconvenient than striking from a distance, but that never changed the requirement that lethal force can only be used against imminent threats, outside of armed conflicts, if “less extreme means, such as capture or non-lethal incapacitation, would be insufficient.” Even if the capture of terrorist suspect targets were truly impossible, that is irrelevant to whether an imminent threat justifies the use of deadly force against individuals without judicial pre-approval.

*Amien Kacou is an attorney at GPI Law PLLC.

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