What Kind Of Day Has It Been

International

• Amid speculation that Turkey may establish a buffer zone within Syria, at the end of last week, Turkey met with the Syrian opposition council for the first time. Libya's new government recognized that same Syrian opposition body--becoming the first state to do so.
• An-Nahda declared victory in Tunisia's first election since Ben Ali's ouster. Winning elections provides another similarity between Ghannouchi and Khomeini. Former Congresswoman Jane Harman described the elections as "hands down the best, most promising election I have ever witnessed, including those I have seen in the United States." 
• As Jason noted this morning, the death toll in the Turkish earthquake continues to trend upward.
• Libya claims that Saif Qaddafi is planning to flee the country on a forged passport.

Domestic

• The mess of Bachmann's campaign keeps getting ink. As a former field staffer, it is difficult for me (without knowing either the particularized experience of these staffers or their professional experiences before this campaign) to assess their grievances. That said, it kind of strikes me as the sort of bellyaching that comes from inexperienced field staff.
• Ahhh, the impact of Occupy Wall Street, already altering the narrative--this Editor wonders, though, if the change in message means the death of the jobs bill (in any form); as such, he will remove the message discipline counter. Meanwhile, the President runs against Congress. Classic re-elect tactic. And he takes a stick Minority Leader McConnell, that ole son of a [Editor's note: this is a family blog].
• Sweet Sassy Mollassy, it's the Newt & Herman show. Speaking of Cain, he's a man without a machine. But, boy can he sing!

The Short List - October 24, 2011

International

• Over the weekend a 7.2 magnitude earthquake struck Eastern Turkey.  The search for survivors continues, but already over 200 people have been reported dead.


• In Tunsia, citizens went to the polls in the first free and fair election in the country ever and the first for any Arab Spring country.  Counting is underway, but results aren't likely to be released until Tuesday.  Meanwhile, in Libya, the country formally declared independence yesterday following the killing last week of Qaddafi.  Already the hand wringing in the West has become over how Islamist is too Islamist.


• In Syria, the US ambassador has returned to Washington, but has not been formally recalled.  There is some speculation this temporary recall is for the ambassador's safety.


• In Mexico, as police are re-tasked to deal with violence, drug crops are allowed to flourish.


• Following President Obama's announcement that all combat troops will withdraw from Iraq by the holidays, Secretary Clinton warned Iran not to misread American resolve.

Domestic

• Obama's policies haven't done as much to help struggling homeowners, in part because he hasn't spent enough or gone big enough.  Meanwhile, none of the GOP presidential hopefuls could articulate what they'd do, let alone what they'd do different from Obama, to abate the housing crisis.


• The Department of Defense is leading the way in trying to utilize green technology and is helping some start-ups further develop products.  Meanwhile, the Center for a New American Security's National Security blog has been giving a lot of ink to alternative energy.


• Many expensive drugs are about to pass their patent limit so generics could be close on the horizon.


• After bailouts and attempts at reform, it's business as usual on Wall Street.  But we really need to repeal Dodd-Frank?


• The Tea Party is losing some of its vigor on the Hill.

The Short List - October 21, 2011

International

• Qaddafi is dead, which is probably old news at this point, but The Washington Post account would seem to suggest that Ben's post is highly relevant as the sequence of images versus the fatal bullet to the head seem to suggest he was not killed in the course of capture, prompting the UN to delay Qaddafi's burial so an inquiry can be performed.  Meanwhile, the impact of digital images.  Also, a tale of two approaches in Iraq and Libya.


• In Iraq, the U.S. has closed out its northern base.


• Sec. Clinton, after visiting Libya and Afghanistan, is in Pakistan less to heal damaged relations then to push the Pakistanis to get tough on the Haqqani network.


• Al-Shabab claims to have killed 150 African Union peacekeepers from Burundi and even went so far as to display over 70 bodies of slain soldiers.


• Investors in Greek bonds may be forced to accept a 50% loss according to an EU/IMF analysis.

Domestic

• Senate Republicans blocked a cloture motion on a bill that would have provided money to local governments to higher teachers and first responders.


• Two men have been indicted by a grand jury for their involvement in the alleged Iranian assassination plot.


• The Occupy movement accepts some help from unions to have greater logistical reach.


• The burden of student loan debt shackles the options graduate can choose.

The Killing of Qaddafi, War Crime

Al-Jazeera English has obtained video showing Qaddafi alive at the time of his capture. Qaddafi is clearly disoriented and bleeding from his head. Although this blog--and this Editor in particular--has been consistently supportive of the NTC and NATO's involvement in the Libyan revolution, that Qaddafi was killed shortly after strikes this Editor as a war crime. 

As Article 3 Common to the Geneva Conventions of 1949 states:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.

(emphasis added). Qaddafi was apparently killed after he was rendered hors de combat by both capture and, apparently, injury. That is murder--and likely a war crime. His body was then taken to Misurata and dragged through its streets. That is mutilation--and also likely a war crime. 

It is important to remember that this sort of conflict--a civil war--is exactly the type of conflict in the minds of the drafters when they wrote Common Article 3. It is important to remember it is triggered when there is an armed conflict in the territory of a High Contracting Party; it does not matter that the NTC is only a nascent government and not a well-established state, nor does it matter that the NTC was not the government of Libya when Libya ratified the Geneva Conventions. They are bound by it under the law of state succession. Moreover, the Geneva Conventions are jus cogens and would apply even if Libya weren't a High Contracting Party. 


UPDATE: A colleague points out that we do not know whether Qaddafi was killed after that footage or whether he succumb to his wounds. This is an excellent point. If he merely succumb to his wounds, then there was no murder. However, mutilation still stands.

The Short List - October 20, 2011

International

• NTC forces are reporting they have captured Qaddafi, but the claims can not be independently confirmed.  What is largely confirmed is that NTC forces have conquered Sirte.


• As the general strike in Greece enters day two, the parliament there is expected to consider final passage of an austerity bill which helped prompt the general strike in the first place.


• US funds intended to push for privatization may have instead given resources for crony capitalism in Egypt.

Domestic

• Rick Perry and Ron Paul have lobbied for energy subsides in the state of Texas, despite both decrying such subsides in the GOP debates.  I must admit I'm very surprised to see Ron Paul mentioned.


• The supercommittee's deadline is approaching, but as of yet there is still no consensus.


• President Obama is outpacing the GOP field in fundraising from the financial sector.


• A dispatch from Occupy Boston and another from Occupy Wall Street.

What Kind Of Day Has It Been

International

• The United States will re-engage--or at least, have exploratory talks on the possibility of re-engagement--with North Korea.
• Greece's 48-hour general strike became quite violent today.
• Kosovar Serbs are refusing to remove barriers they setup to keep Kosovo's government from extending its writ over the last bits of ethnically Serb-controlled territory. 
• Second in a string of surprise visits, Sec. Clinton arrived in Kabul. 
• President Saleh continues along the slowest relinquishing of power ever.
• Affirmed: the Declaration of Independence was lawful. Or maybe not. Strictly speaking, secession violates domestic law--that seems self-evident, doesn't it?--but it's not, today, unlawful under international law. It may have been during the 18th century, though.

Domestic

• Sen. Charles Grassley (R-IA) announced that he would not endorse a Republican candidate before the caucuses. Although he did not endorse a candidate in 2007, either, Grassley previously endorsed George W. Bush in 2000, and Bob Dole in 1996 and 1988.
• The U.S. Marine Corps beat a quick retreat on their KIA memorial bracelet ban.
• Oh lord, you just know the Factor is going to make this into an Obama-is-a-book-burning-fascist thing.

The Short List - October 19, 2011

International

• After Kurdish PKK fighters launched an attack in southeastern Turkey that killed 26, the Turkish military has reportedly made an incursion into northern Iraq to attack the PKK in refuge there.


• Secretary Clinton assures the Libyan transitional government that they U.S. is on their side.


• As the Gilad Shalit prisoner swap continues to unfold, forty Palestinians that Israel deemed too dangerous to return to Palestine have arrived in exile in Syria, Turkey, Qatar, and Jordan.  Meanwhile, with Palestine's application for membership sitting idle in the UN Security Council, they are seeking full membership instead with UNESCO.  If the body approves the measure, then the U.S. is required by law to stop paying dues to the UN.  Since it came up in the debate last night, I thought I'd note that in FY2009 the U.S. government gave the UN just over $6 billion or 1.3% of the $447 billion jobs plan President Obama recommended to Congress and 0.002% of total federal government expenditures.


• There are reports of more deaths in Yemen as protests and clashes continue.


• The U.S. is waiting on a UN rights abuse inquiry before deciding to sign a $53 million deal with Bahrain.


• A massive general strike in Greece is bringing the country to a halt again.  This particular strike is expected to be the largest in several years.

Domestic

• The GOP debate last night was far chippy-er then debates past.  The transcript of our live blog can be found here, while Chris Cillizza says Romney was a winner and Cain was a loser last night along with Michele Bachmann who "every answer [she] gave was the dictionary definition of a non sequitur."  Politico gives you eight takeaways, my personal favorite is "Herman Cain likes fruit, if not details."  Fact Checker considers some of the "factual" doozies from last night.


• In a bizarre, and sad story 48 potential dangerous animals including lions and tigers escaped from a private sanctuary outside Columbus, Ohio.  At present 35 of the animals have been confirmed killed.


• President Obama will announce a public-private partnership today that will see 25,000 veterans employed over the next two years.


• Nuclear energy is doomed to be politically contentious.

What Kind Of Day Has It Been

International

• Kenya's progress in its invasion of Somalia has slowed under heavy rains--for those of you keeping score at home, this is the second time one of Somalia's neighbors has invaded the beleaguered failed state in the last five years. A Kenyan delegation made a surprise visit to Mogadishu today to assure the TFG that Kenya does not intend to occupy Somalia. In other Somali news, a car bomb in Mogadishu killed four. This Editor wonders what the ICJ would say about this invasion--do a few kidnappings justify this action as self-defense? Do kidnappings of foreign civilians even rise to the level of an armed attack? If they do, which this Editor doubts, is this invasion proportionate? Under the Congo case, likely not. 
• Yemen. 
• Hey, the world is going to end (again?) on Friday.

Domestic

• Obama's immigration credentials are further undermined by revelations that, for the third year running, his administration has been responsible for record-setting deportations. 
• CBS bemoans the incumbency advantage. Funny, I don't remember anyone whining about the outrageous Mission Accomplished boondoggle. 
• Iowa has set its caucus date for January 3, 2012. Four years to the day after the last one.
• As Jason noted, he and I will be live blogging tonight's GOP debate. And Politico gives us 8 things that the GOP should avoid.

Live Blogging the GOP Debate

Ben and I will be live blogging the Western Republican Presidential Debate tonight at 8pm ET.  Check back in then to see what we think of what the candidates think.

The Short List - October 18, 2011

International

• Secretary Clinton is in Libya today to show support, and some aid dollars, to the transitional government there.


• Iranian President Ahmadinejad has denied Iran's involvement in the alleged plot to kill the Saudi Arabian ambassador to the U.S., saying the announcement by the U.S. was to distract from our country's economic troubles.  **Editor's Note: Points for creativity**  Meanwhile, Western diplomats and nuclear experts believe Iran's nuclear program isn't progressing quickly.  In more bad press for Iran, a new UN report claims that hundreds of prisoners have been executed by the Iranian government without any semblance of due process.


• Gilad Shalit, the Israeli solider captured by Hamas in 2006, has been reunited with this family as the proposed prisoner swap takes place between the two parties.


• There are reports that al-Awlaki's teenage son, a U.S. citizen, was killed in a drone strike on Friday and the family is speaking out.


• The Venezuelan Supreme Court has barred a chief opposition figure from seeking the presidency, removing another potential challenger to Hugo Chavez.

Domestic

• There is yet another GOP debate this evening and your editors will be live blogging the whole affair.  Here are five things to watch for.  Meanwhile, Iowa has set their caucus date for January 3rd and Ron Paul has a plan to cut $1 trillion dollars in the first year of his presidency, eliminating five departments and the TSA.


• Bank of America earned $6.2 billion in the third quarter.  Meanwhile Goldman Sachs reports a $428 million loss(NYT) in the quarter.  But of course, this could all just be corporate fraud.  **Editorial Note:  If we should just trust in markets, and markets are built on information, but the people providing the information are lying, how can we just trust markets?**


• Is there a bait and switch going on with the end of farm subsides(NYT)?

What Kind Of Day Has It Been

International

• NTC fighters took the center of Bani Wald, today, leaving Qaddafi loyalists with only pockets of that city and of Sirte. 
• U.S. drone strikes in Northwest Pakistan have accelerated as U.S.-Pakistan relations have gotten worse. It is perhaps a mark of how badly things are going that, as Pakistan says it's ready to negotiate with the Pakistani Taliban again, the U.S. is bombing so-called 'Good Taliban' positions.
• Noah Feldman weighs in on the killing of Anwar al-Aulaqi--this Editor disagrees with some of what Feldman says, including his comparison of uniformed soldiers in IAC. Significantly, that uniformed soldier would not get a hearing before being killed in combat, as Feldman notes, but he would if he were captured. 

Domestic

• SCOTUS has granted cert to a case involving a federal law criminalizing lying about military honors. It also granted cert for an interesting corporate liability/Alien Tort Claims Act case.
• New Yorkers support Occupy Wall Street.
• The President is still pushing the jobs bill -- good on ya, Mr. President.

The Short List - October 17, 2011

International

• Pakistan's government seems to be returning to truces to deal with the Taliban, despite the violence perpetrated on the country in the past few years.


• Kenyan troops, in a nominally Kenyan-Somali joint operation, have pushed al-Shabab out of two towns near the Kenyan border.


• The Arab League has decided not to suspend Syria from the group, but instead insisted government and opposition forces meet in Cairo to discuss the situation.  The Syrian government has refused.  Of note, the Arab League ostracized Qaddafi in Libya and that was largely seen as the moment NATO forces to begin to intervene, so the actions of this body are important to watch.


• In Yemen, violence bubbles up again as pro-Saleh and opposition forces squared off in the capital city of Sanaa.


• The Israel-Hamas prisoner swap is finding many critics in Israel.

Domestic

• President Obama dedicated the Martin Luther King Jr. Memorial yesterday, giving a great speech.


• Herman Cain was on Meet the Press yesterday.  He managed to talk past 9-9-9 questions, against logical questions.  He either would not embrace or was unfamiliar with neoconservatism.  And he would not seek a federal ban on same sex marriage, which made Rick Santorum upset on the one hand, but happy to be covered for being upset on the other.  **Programming Note: Ben and I will be live blogging the GOP debate tomorrow night.**


• Veterans have trouble finding jobs, in part because employers don't know what their skills translate to in the working world.


• House GOP freshmen struggle to raise money, which (because of money's outsized influence in campaigns) could make the Tea Party insurgency rather brief.


• Checking in with the deficit reduction super committee.


• The St. Louis Cardinals are headed to the World Series.  Political significance?  None.  Significance to your editor?  Tons.

The Short List - October 14, 2011

International

• The U.S. will send former military personnel to Libya to attempt to track down and destroy surface-to-air missiles that Qaddafi had stockpiled, for fear they may fall into terrorist hands.  Speaking of Qaddafi, a senior NTC official says their forces are tracking Qaddafi via satellite as he stays mobile in southern Libya.  Whenever I hear about tracking someone via satellite, I always think about this.


• On the heels of S&P downgrading Spain's sovereign debt, the G-20 finance ministers will meet to discuss what to do with a anemic (potentially non-existent) recovery.


• The CIA says they have killed the highest ranking member yet, of those targeted, of the Haqqani network via drone strike in northwest Pakistan.


• President Obama has said Iran will be held to account for the alleged bombing plot, and while that is likely to be more sanctions as we see in Syria sometimes the expected targets don't feel the sting as much as the broader populace.

Domestic

• Hermain Cain's 9-9-9 plan would put a greater burden on the poor then current tax code, and as it happens when you are the (almost) front runner people are beginning to wonder what Cain brings beyond 9-9-9.


• So many jobs plans, so little time.  Though the Congress did approve three free trade deals long languishing in legislative purgatory, giving President Obama a slight victory though not everyone is excited about the trade deal.  **Editor's Note: Cutting the corporate tax rate may be a good idea, but the issue right now is not that companies don't have enough cash so tying that to a short-term jobs bill is very misleading.**


• Mitt Romney doesn't fear a trade war with China in an op-ed your editor finds a bit disconcerting.


• As the Occupy movements continue, Democrats have a difficult time so far connecting with the anger.

The Short List - October 13, 2011

International

• There are unconfirmed reports that yet another Qaddafi son has been captured. Despite such reports in the past, no sons of Qaddafi have been captured by NTC fighters. Meanwhile, NTC fighters have reached the coastal route in Sirte, cutting off the escape of remaining Qaddafi loyalists.
• Questions continue to swirl around the alleged Iranian assassination plot. Friend of the blog, Reza Marashi addresses it at the Huffington Post. Some question whether the plot was real, others what the U.S. should do about it.
• The world-wide Blackberry outage is over! After three days, your Torch or Bold should have buzzed back to life this morning. This Editor and long-time--though no longer--Blackberry user wonders if this outage is the nail in RIM's coffin.

Domestic

• Big Money Obama pulled in $70 million in the third quarter for the re-elect.
• Foreclosure is giving way to demolition. What a great use of homes and resources.
• Scott Brown may be a member of the esteemed ranks of Senator-plagiarists.
• The Washington Post fact-checks Cain's 9-9-9 plan. Cain himself will be on MTP this Sunday.

What Kind Of Day Has It Been

International

• NTC forces press the attack in Sirte and Reuters captures this stunning footage:

• Unfortunately, weapons are flowing out of Libya and into Egypt's black markets. This bodes poorly for Egypt given its current troubling state.
• Slovakia: spoiler no more.
• China and Vietnam moved closer to settling a longstanding maritime dispute. No word on whether the agreement in principle covers the Spratly Islands, as well.

Domestic

• Turns out Obama's job bill is popular with Americans. Unfortunately, it's only really popular when the various provisions are listed to the respondents. So much for message discipline. Still, the President keeps pressing the attack--good for him.
• Sidney Tarrow says that Occupy Wall Street (and its spin offs) are less movement and more a "constituent moment" like the Great Depression coalition. Meanwhile, Peter Dreier says OWS will get co-opted and that that is a good thing. As for those who continue to say that the message of Occupy isn't clear, your Editor will let this picture (taken at last Wednesday's rally) do the talking for him:

• Hey, maybe we'll have a budget.

An Anecdotal Comparison of Efficient Judicial Systems

• Khalid Sheik Mohammed - captured on March 1, 2003, and still not prosecuted as of October 12, 2011.

• Umar Farouk Abdulmutalla - captured on December 25, 2009, charged, arraigned, and plead guilty as of October 12, 2011.

Who says Military Commissions are more effective?

The Short List - October 12, 2011

International

• As details continue to emerge on the foiled plot to kill Saudi Arabia's ambassador to the U.S., Iran has called the allegations "childish."  Meanwhile, the early words used to describe the plot by pundits are brazen and bizarre.  A primer on Iran-Saudi relations is always useful when a story like this breaks.
• Syrian refugees in Turkey appeal for international intervention, while in Damascus a huge pro-Assad rally took place.
• The Senate does its best to pick a trade war fight with China.

Domestic

• Mitt Romney is everybody's big winner from last night's GOP debate.  Chris Cillizza covers all the winners and losers, while Politico's Maggie Haberman has six takeaways from the debate.  Your editor still believes this is a race between Romney and Perry, but Huntsman (if he can learn when to let a joke die) could muscle his way in there.  **Programming Note:  DCExile will live blog the GOP debate next Tuesday night.**
• Senate Republicans (and two Democrats) voted against the full Obama jobs bill, but then came back later and said they didn't mind many of the elements.  They just wanted a political win against the president.  Leadership?
• Chrysler and the United Auto Workers have reached a deal on a new labor agreement that would create  over 2000 new jobs.

What Kind Of Day Has It Been

International

• Slovakia blew up the global economy.
• The FBI and DEA have disrupted a plot to kill the Saudi ambassador to the United States and simultaneously bomb the Saudi and Israeli embassies. The United States has tied the plot to the Iranian government, particularly the IRGC, and the Treasury Department has already issued additional sanctions.
• After more than five years, the Israeli government has agreed to a prisoner exchange with Hamas for the release of captured IDF soldier Gilad Shalit.
• NTC fighters pushed through Qaddafi-loyalist defenses into Sirte but heavy fighting is ongoing. 

Domestic

• Chris Christie--who has only recently closed the door on a presidential run--endorsed Mitt Romney ahead of tonight's Republican debate in New Hampshire. Yes, there is another Republican debate tonight. DCExile may (or may not) liveblog this one -- we haven't decided yet. Cain is gunning for Mittens. Also, Cain evidently thinks that protesting income inequality is unAmerican. This Editor thinks bad pizza from the Midwest is unAmerican. 
• OccupyDC staged protests in the Hart Senate Office building, six were arrested. More than one hundred were arrested overnight in Boston. Mayor Menino was quoted as saying he would not tolerate "civil disobedience," leading this Editor to ask, what would that denizen of greater Boston, Henry David Thoreau, say?
• And Tim Tebow preps to be the starting quarterback in Denver. It's a sad day for this great nation of ours. 

The Short List - October 11, 2011

International

• A recent UN report finds "systematic" torture of detainees handed over to Afghan custody.  The Pentagon says it will investigate.
• In Sirte, Libya, NTC fighters say they are tightening the noose around Qaddafi.
• Al-Qaeda has confirmed that Anwar al-Awlaki was killed by a U.S. drone strike.
• In Greece austerity measures sound easy on paper, but require a big cultural shift.
• Russian PM (and future president, again?) Vladimir Putin is in China to work on bilateral agreements between the two massive neighbors.  Meanwhile, according to an upper house official Russia's recent veto of a UN resolution against Syria doesn't constitute a "carte blanche" for the Syrian government to do whatever they want.

Domestic

• Though technically over, the feeling of recession persists and anemic job numbers are met with enthusiasm.  But the markets did have a good day yesterday.  Meanwhile, those ads by the American Petroleum Institute exaggerate the job creation we'd see if regulations were lifted.  They also don't mention anything about the environmental consequences.
• The Occupy Wall Street protests continue and the DC offshoot is working with the National Park Service to prolong their stay in Freedom Plaza.
• If a hero needs a villain, Democrats have found their villain in the personage of Rep. Eric Cantor.

The Short List - October 10, 2011

International

• Egypt's Tahrir Square erupted into violence last night.  What started as a Coptic Christian protest became a protest of what many feel is a stolen revolution by the country's military.  Egypt's PM has promised an investigation will take place.  60 Minutes did a story last night of the revolution that was in Egypt and the potential revolution to follow.


• In Lybia, the NTC continues there push into Sirte facing heavy resistance.


• Former president of Cape Verde, Pires, won Mo Ibrahim's prize for governance.  He is the first recipient of the award since 2008 as no suitable candidate has been identified.


• Over the weekend, Ben broke down Charlie Savage's piece outlining why the Justice Department thinks they can legally kill a U.S. citizen without trial.

Domestic

• As Occupy Wall Street continues and attracts new participants, the movement ponders how to move from protest to policy power.  Meanwhile, the GOP presidential candidates are short of detailed ideas to do something different from Obama to get the economy moving.  Meanwhile, Nancy Pelosi reminds Eric Cantor that just because you don't like what they're protesting it doesn't mean the protests are dumb.


• Subpoenas are likely on the way as the House investigates the botched "Fast and Furious" ATF operation.


• NPR chronicles the first majority Hispanic town in Iowa.


• Speaking of Iowa, after closing her Old Town campaign headquarters, Michele Bachmann's campaign HQ is in Des Moines, though you editor thinks she should have moved the HQ to Waterloo for dramatic effect.  Meanwhile, Bachmann refused to call Romney a Christian, as did "Flavor of the Week" Herman Cain.

Legal Justifications for Killing Anwar al-Aulaqi

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.