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.

OBL Raid and International Law

As I noted earlier this week, the OBL raid presents myriad complex legal issues. And, unfortunately, the complexity is often exacerbated by silly errors made by commentators in their attempts to describe them. For instance, David Bosco writes:

But Koh says nothing about the most difficult question: Pakistan's sovereignty and the compatibility of the raid with the U.N. Charter's restrictions on the use of force. The administration is sticking to the justification that the U.S. is at war with al Qaeda and is clearly not interested in trying to delineate when that state of war permits nonconsensual operations on another country's territory.

This is in no way correct. In fact, Koh speaks directly to this issue when he writes:

In addition, bin Laden continued to pose an imminent threat to the United States that engaged our right to use force, a threat that materials seized during the raid have only further documented.

(emphasis mine). Koh is here speaking to the requirements of self-defense under international law; self-defense, as preserved by Article 51 of the U.N. Charter, empowers a state to use necessary and proportionate force when faced with an imminent armed attack -- even, in some cases, if that use of force violates another state's nominal sovereignty.

Bosco can be forgiven for his mistake -- after all, the United States continues to rely on both self-defense and the law of armed conflict to justify its targeted killing operations without articulate which of the two, separate justifications applies to any given operation. Koh did so in his ASIL speech in March 2010, and he did so again yesterday in his post on Opinio Juris. This confusing state of affairs preserves operational flexibility but does little to advance international law or quiet critics of targeted killings.

The more difficult questions of sovereignty arise when the targeted killing of Osama bin Laden is viewed strictly through the lens of armed conflict. Then, and only then, do Bosco's questions of sovereignty bubble to the surface.

Targeted Killing Justifications and Revelations

Recent revelations about the procedures used by the United States in its targeted killing program indicate that the U.S. views individuals selected for targeted killing as legitimate targets at all times. That is, once identified, a targeted individual may be subject to the use of force at any time thereafter. However, such continuous targetability calls into question the ability of the United States to rely on self-defense as one of its two legal justifications for its targeted killing program. Strikes against these continuously targetable individuals would then only be lawful within the context of an armed conflict. Any targeted killing outside of an armed conflict or valid self-defense would be an illegal, extrajudicial execution.

The United States defends the legality of its covert targeted killing program on the basis that those killings fall within the paradigms of armed conflict or self-defense. Both justifications afford a state the right to use force against another state, non-state actor, or arguably an individual. Both justifications are subject to strict requirements and limitations.

International law admits only two categories of armed conflict: international and non-international. International armed conflicts occur whenever there is a resort to force between two states. Non-international armed conflicts occur between states and non-state actors, or among non-state actors, and are distinguished from riots or domestic disturbances by the level of organization of the non-state actor and the intensity of the hostilities between the parties. When engaged in an armed conflict, a state may lawfully use force against enemy combatants or civilians who directly participate in hostilities.

Judging a state’s reliance on self-defense is more difficult—particularly when it is invoked as a justification for a covert or unacknowledged state action. Self-defense must be predicated on an imminent or ongoing armed attack. The force used must be necessary to disrupt that armed attack and the force used must be proportionate  the need to repel or deter that armed attack. Moreover, to be invoked against an imminent armed attack, that attack must be more than a mere threat. This difference in threat versus imminent armed attack is the difference between the 1967 Israeli strike against the Egyptian air force—valid as self-defense—and the 1981 Israeli strike against the Iraqi Osirak nuclear reactor—not valid as self-defense.

Here, then, lies the particular difficulty of evaluating the lawfulness of a targeted killing justified by self-defense. These attacks are covert and are based on classified intelligence information. How are those of us outside of government to adjudge whether a targeted killing satisfied the requirement that the United States faced an imminent armed attack? The question is impossible to answer directly, so we are forced to rely on public characterizations of the targeted killing program and the procedures on which it is based.

Public characterizations of the United States’ targeted killing program suggest that there are in fact two distinct programs: one operated by the U.S. military and the other by the Central Intelligence Agency. Public characterizations have further indicated that the CIA’s program, at least, maintains a list or bullpen of individuals who are targeted and remain targetable until killed. It is this continuous targetability that calls into question the United States’ reliance on self-defense.

This is not to say that a state, a non-state actor, or an individual cannot be continuously responsible for imminent or ongoing armed attacks. However, such a scenario better describes armed conflict and its attendant intense hostilities than self-defense. Of course, armed conflict provides the authority to use force against these individuals. Moreover, those hostilities would be observable to the general public and would likely look a lot like what is going in Northwest Pakistan—such frequent resort to targeted killings that hostilities between the United States and non-state actors likely place the United States in an armed conflict there.

The same cannot be said for U.S. involvement in Yemen and Somalia, for instance. The United States reportedly uses force in those locales only sporadically. The individuals it targets there may be continuously plotting against the United States. They may be continuously recruiting potential attackers. And they almost certainly present a significant threat to the United States. However, it is unlikely—given both the sporadic use of force by the United States and the sporadic publicly known actual or attempted attacks against the United States—that these individuals are continuously responsible for imminent armed attacks within the meaning of self-defense.

Without the ability to rely on self-defense as a justification for a targeted killing, the United States’ must rely on the existence of an armed conflict for the authority to employ force. If no armed conflict exists where and when the United States employs a targeted killing, and that targeted killing does not satisfy self-defense, then such action can only be described as an extrajudicial execution—a gross violation of international law and human rights norms.

Nasser al-Aulaqi's Suit Dismissed

Judge Bates today dismissed Nasser al-Aulaqi's suit on behalf of his son, American-Yemeni cleric Anwar al-Aulaqi, for want of standing. Nasser, Anwar's father, had asserted "next friend" standing, which affords family members the ability to bring suit on behalf of an individual unable to access the courts--next friend standing is particularly relevant in habeas corpus petitions. Al-Aulaqi asserted that he satisfied next friend standing because his son is in hiding under threat of death and could therefore not access US courts. The government, on the other hand, argued that Anwar al-Aulaqi could in fact access US courts by presenting and surrendering himself to a US embassy in Yemen. Judge Bates wrote

Plaintiff has failed to provide an adequate explanation for his son's inability to appear on his own behalf, which is fatal to plaintiff's attempt to establish "next friend" standing.3 In his complaint, plaintiff maintains that his son cannot bring suit on his own behalf because he is "in hiding under threat of death" and any attempt to access counsel or the courts would "expos[e] him[] to possible attack by Defendants." Compl. ¶ 9; see also id. ¶ 26; Al-Aulaqi Decl. ¶ 10. But while Anwar Al-Aulaqi may have chosen to "hide" from U.S. law enforcement authorities, there is nothing preventing him from peacefully presenting himself at the U.S. Embassy in Yemen and expressing a desire to vindicate his constitutional rights in U.S. courts. Defendants have made clear -- and indeed, both international and domestic law would require -- that if Anwar Al-Aulaqi were to present himself in that manner, the United States would be "prohibit[ed] [from] using lethal force or other violence against him in such circumstances."

“As a matter of law”

Ben Wittes, a fellow at Brookings and journalist who follows national security and law, responds to Nick Baumann of Mother Jones on Wittes blog (co-authored with Jack Goldsmith and Robert Chesney) today. Baumann attacks Wittes for what he sees as Wittes arguing about “straw terrorists” in the context of whether the United States has the legal authority to kill Anwar al-Aulaqi. Wittes writes

I think Baumann makes several important analytical errors here, errors which lead to a too-simplistic boiling down of positions that one cannot so easily condense. For starters, it is quite wrong to say, as Baumann does, that imminence is “the key issue here.” As a matter of law, if Al Aulaqi is covered by the AUMF and one accepts that the United States is engaged in an armed conflict with AQAP, Al Aulaqi can be targeted at will.

“As a matter of law,” Wittes is wrong. International humanitarian law—the law that governs conduct within an armed conflict—admits only two categories of armed conflict: international and non-international. Each category provides certain authority and certain obligations to the parties of an armed conflict. Importantly, the authorities and obligations attach to one party even if the other party does not follow the law. International armed conflicts occur when there is a resort to force between states. All other armed conflicts—those that occur between states and non-state actors or among non-state actors—are non-international armed conflicts.

Whereas in international armed conflicts, states may target combatants at will—unless they are hors de combat—in non-international armed conflict, there is no such thing as a combatant. Instead, states are forced to target civilians who have forfeited their status as protected by directly participating in hostilities. This means that these individuals are targetable when they are on their way to or from some hostile action or while they are participating in that hostile action: think a farmer walking to the edge of his village to plant an IED, planting that IED, and walking back. However, in recognition of the difficulty this law places the state in, an emerging norm of customary international law recognizes “continuous combat function,” which is an expansion of the notion of direct participation in hostilities. An erstwhile civilian may so regularly engage in hostile action that he performs no other role in life; he becomes combatant-like and therefore targetable at will.

There is good reason to believe that Anwar al-Aulaqi has assumed a continuous combat function by taking on an operational role in AQAP and is therefore targetable at will. However, it is far from assured that that international humanitarian law has, “as a matter of law,” recognized such a targetable status.

106

With more than a month left in 2010, the United States has already doubled its 2009 tally for drone strikes in Pakistan. The United States launched its 106th strike over the weekend, at a target in North Waziristan. In 2009, the US launched 53 drone strikes in Pakistan compared to 34 strikes in 2008. Both the year-on-year, and the intra-year rate of strikes has increased, with the United States launching 54 attacks in the first 8 months of 2010 and 52 in the following three months.

While many scholars and commentators seek to justify US drone strikes in Pakistan under either the rubric of self-defense or by expanding the zone of combat of the war in Afghanistan to include the frontier region of Pakistan, the proliferation of strikes and the fact that armed groups other than Al Qaeda or the Afghan Taliban are targeted leaves these explanations wanting. It is likely that the intensity of US drone strikes and the level of organization of the targeted groups places the United States in an armed conflict in Pakistan, triggering international humanitarian law.