Charlie Savage has a tantalizing report in the NewYork Times describing, based on sources familiar with the document, the contents of the Justice Department’s memorandum analyzing and authorizing the targeted killing of Anwar al-Aulaqi. Without access to the memorandum itself, it is impossible to provide a detailed analysis of its reasoning. However, some of the New York Times report hint at some interesting developments.
First, Savage reports that
[t]he legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.
Here, we see the continuing mixing of self-defense and armed conflict. The requirements of self-defense are apparent in that al-Aulaqi “posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.” This would seem to address the necessity requirement of self-defense. Further, we see that the memo, according to Savage’s sources, asserted the existence of war—let us presume it actually said “armed conflict”—and that al-Aulaqi was targetable because “he was taking part in the war”; that is, he was a civilian directly participating in hostilities.
Second, Savage reports that
[o]ther assertions about Mr. Awlaki included that he was a leader of the group, which had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on trying to attack the United States again. The lawyers were also told that capturing him alive among hostile armed allies might not be feasible if and when he were located.
Here, we have the first suggestion that the United States recognizes AQAP as a cobelligerent of Al Qaeda. This is fascinating for two reasons: 1. it indicates that the U.S. recognizes that AQ and AQAP are distinct organizations and that the Al Qaeda “franchise” is not monolithic; 2. more interestingly, it suggests that the United States is taking the position that cobelligerency, a status found historically only in international armed conflict (armed conflicts between states) can now occur in non-international armed conflicts (armed conflicts between states and non-state actors, or among non-state actors). Both myself and Jack Goldsmith have made arguments that this cross-pollination should occur.
Finally, Savage reports this:
would it comply with the laws of war if the drone operator who fired the missile was a Central Intelligence Agency official, who, unlike a soldier, wore no uniform? The memorandum concluded that such a case would not be a war crime, although the operator might be in theoretical jeopardy of being prosecuted in a Yemeni court for violating Yemen’s domestic laws against murder, a highly unlikely possibility.
This is incredibly interesting—both to me because of other work I’ve done—and in light of the fact that the United States is currently charging Guantanamo detainees, categorized as unprivileged belligerents, with “murder in violation of the laws of war.” At least in so far as the Military Commission prosecutions are concerned, the United States seems to take the position that a civilian who directly participates in hostilities, and kills even a lawful target, commits murder in violation of the laws of war. Putting aside the fact that there is no support for this position in international law, the Justice Department seems to be taking the opposite position!
All in all, Savage’s article is a trove of information but should serve merely to underscore the necessity of the United States releasing its legal reasoning undergirding the targeted killing of Anwar al-Aulaqi, and others.