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.

A Good Kill

Some two weeks ago, the United States launched a daring raid and assault into Pakistan that ended in the death of Osama bin Laden. Since then, a debate has raged as to whether bin Laden’s killing was lawful—whether it was a good kill.

Much of the commentary in this debate has betrayed fundamental misunderstandings about the law governing the relations among states and the law governing relations among states and combatants in armed conflict. This includes both a tendency to confuse jus in bello and jus ad bellum, as well as a tendency to confuse the law governing self-defense with the law governing armed conflict. These confused commentaries do little to shed light on the operation, its legality, or advance an understanding of U.S. counter-terrorism operations.

The starting point of any analysis of the bin Laden raid must begin—explicitly or implicitly—with the UN Charter. Under the Charter—which has achieved jus cogens—use of force is prohibited except when authorized by the Security Council or when undertaken in self-defense. Of course, a state may use force within the territory of another state when the host state consents to that use of force. Regardless of the legality of the use of force itself, once force is employed it must conform to the law of armed conflict—so long as the use of force rises to the level of an armed conflict.

The bin Laden raid raises questions about the legality of the use of force from the inception and the legality of the kill itself. What is the legal justification for the raid? Regardless of that justification, did the kill conform to the requirements of the law of armed conflict?

While there has been much discussion that the raid was carried out in self-defense, the better explanation—and the more legally accurate one—is that the United States is engaged in a non-international armed conflict with al Qaeda. As such, the United States has the authority to lawfully use force against enemy fighters—combatants is an improper term for members of a non-state organized armed group—when those fighters forfeit their civilian status by directly participating in hostilities. Bin Laden, as an operational leader of al Qaeda, was such a leader and, therefore, was a lawful target. His was a good kill.

More problematic is the question of whether the U.S. incursion into Pakistan was lawful.

Test of Wills

As autocrats in the wider Middle East make preemptive concessions, the Old Survivor finally responds. The Mubarak regime seemingly inexplicably restored both internet access and Al Jazeera’s broadcasts today. The restoration of both coincided with the appearance of approximately 10,000 pro-Mubarak demonstrators in Tahrir Square—some of whom are apparently plain clothes policemen. As well as a warning from the Egyptian military that protestors should restore normalcy.

The pro-Mubarak demonstrators evidently had to—and were allowed to—pass through Egyptian army barricades. Shortly thereafter, clashes broke out between pro- and anti-Mubarak demonstrators. Then, into the crowd, rode men on horses and camels, beating anti-Mubarak demonstrators. 

The timing of these events is not coincidental. Mubarak is on his way out but is clearly trying to set the terms of his exit--and by turning both news and the internet on, he has assured that Egypt and the world will see that he is still in control, despite the throngs in the street.

The events thus far today indicate that the Egyptian military has reached some sort of agreement with Mubarak as to the timing and order of his exit. These signs do not point to the establishment of genuine democracy. But neither do they signal the defeat of the protest movement. It is likely that, should the opposition not break in the face of the first attack, the Mubarak regime will ratchet up the force and the level of violence over the coming days.

Tuesday’s march was an incredible demonstration of strength but the week-old uprising now faces its first real test.

UPDATE: Perhaps the most important headline you'll see today:

Best Outcomes in Egypt

Sunday morning, watching Meet the Press, my roommate turned to me and asked, “What’s the best outcome in Egypt?”  My initial response was a question back about who’s perspective she wanted to look at it.  So in this post, I’m going to consider the situation and the best outcome for a few different constituencies.  For a primer, Steven Cook has a great post up at CFR that identifies many of the same players I do.

Hosni Mubarak
This is the easy one.  For President Mubarak, the best outcome is to somehow retain power, give up no ground on democratic reforms, and essentially put down this insurrection.  His best outcome is a return to the prior status quo.  Now that seems increasingly unlikley, so a second best option is to grant limited democratic reforms in exchange for the support of the army.  He’d be in power, but diminished and likely be able to slowly transition out.  His third best option at this point is to simply make it out alive.  Of course, as Will Wilkinson points out, Mubarak is a survivor.

The Egyptian Army
With the decision by the army, at least as I write this, that they will not fire on the protesters.  This would seem to confirm the interesting space the army holds in Egyptian society, where it has benefited from the patronage of Mubarak, but also has the respect of the Egyptian populace.  I would not be at all surprised if the army brass are extracting concessions from Mubarak now, or, in their best scenario, they are inserting themselves into a settlement that would give them temporary control while a transition government is assembled.  They could move independently to restore law and order and under that guise assume control without a settlement.  If they are given control they could extract a high cost to relinquish it.

The Muslim Brotherhood
There is a lot of commentary out there that doesn’t believe the Muslim Brotherhood is in a strong position to gain from this unrest, but I think that commentary is misguided.  They didn’t start the protests, but they are out there giving protesters water, developing a constituency.  They have been the regime’s foil for pretty much all of Mubarak’s three decades in power, and were really the original Islamist group inspiring all manner of off shoots.  While they don’t have the power or organization to seize power, if the protests drag out and the vacuum remains unfilled I could seem them stepping into the void a la the Iranian revolution of 1979.  This would likely be the best outcome they could hope for.  Though I agree with Matt Steinglass that this situation is quite different then the one in Iran in 1979.  Meanwhile, Les Gelb isn’t optimistic about the Muslim Brotherhood.

The United States
As you might expect, given Mubarak’s client status, our best option is Mubarak’s second best.  It’s clear from the media appearances of administation officials that the US doesn’t want Egypt to return to the prior status quo.  They want a peaceful transition to something closer to democracy in the country, but  it doesn’t do us any good to have Mubarak thrown out entirely.  He and his high level lieutenants give the US some connection to the transition and the only shot the US has to influence the final outcome.  Let me also say, I agree with Matthew Duss posting at The American Prospect, the US has to work with (or at the very least not undermine) Islamist political parties, particularly parties that demonstrate a commitment to human rights.  That has not been the traditional outlook of the Muslim Brotherhood, but power can be a moderating venture.

The Egyptian People
There is no good outcome for the Egyptian people.  In the immediate, they could be looking at sustained weeks or even months of a breakdown of law and order.  The problems they face economically will take decades to solve.  Countries without a tradition of democracy have a hard time with the transition and often ineffectual governments spin like revolving doors providing little comfort to the people.  The best outcome is modest democratic reform that allows the nation to get used to the practice and hope that the this leads to broader liberalization of the electoral system.

So that’s what I see as the best outcomes for a number of groups.  These predictions are subject to change given the situation on the ground, but I think there are good chances they’ll hold.  It’s disappointing that the Egyptian people won’t come out of this better, but I just don’t think that’s how it will happen.