This won’t be as exciting or informative as the title suggests, apologies [although it turns out I have said rather more than I was going to; you can read an even longer version of my views at SSRN here]. The front page of the Washington Post carries a story from Dana Priest on US military and intelligence agencies’ involvement in Yemen (Dana Priest, U.S. Military Teams, Intelligence Deeply Involved in Aiding Yemen on Strikes, WP, Wed., January 27, 2009, A1). It is very well sourced and quite even-handed; in particular, the story does not spread the current journalistic meme, a la Eric Schmitt, of a “vengeance” campaign by the CIA. It refers in part to the US, via the US military’s Joint Special Operations Command (JSOC), adding a US citizen, a radical Islamist cleric, to its capture-or-kill list:
As part of the operations, Obama approved a Dec. 24 strike against a compound where a U.S. citizen, Anwar al-Aulaqi, was thought to be meeting with other regional al-Qaeda leaders. Although he was not the focus of the strike and was not killed, he has since been added to a shortlist of U.S. citizens specifically targeted for killing or capture by the JSOC, military officials said. The officials, like others interviewed for this article, spoke on the condition of anonymity because of the sensitivity of the operations.
Several VC readers have emailed to ask about the lawfulness of targeting a US citizen – in this instance, referring to the US military’s target list. I understand there has been some blog commentary on it, particularly on the question of whether it is somehow unconstitutional so to target; I haven’t read it so won’t try to be specific. I’m trying to reconstruct what I lost on my computer on, as it happens, targeted killing yesterday, so I don’t have time to answer this here. Apologies, just swamped. I’ll instead invite VC conspirators to talk to the constitutional questions, if they are inclined.
I will say in conclusory fashion that, no, it is not somehow obviously unconstitutional or unlawful under domestic law for the President, following procedures with respect to either clandestine military operations or covert operations by the CIA, to designate someone as subject to a kill order under either military or CIA operations, even a US citizen abroad. Reid v. Covert and related lines of cases address US citizens, such as US civilian dependents of military personnel abroad, who are within the US justice system even when abroad, and the question is about the kind of justice system that applies. The US citizens in those cases are not in any sense on the “other side” for purposes of determining their constitutional rights.
The situation of Anwar al-Aulaqi is quite different, obviously. The frame is not one of US citizen abroad, in an American judicial procedure – can it be a court martial or military court lacking a jury, for example, for a civilian? Putting him on the kill-or-capture list, however, can be framed as a legal matter in two different ways – and although neither affords him constitutional rights, the implications differ.
One is what I would guess US lawyers inside the military and the intelligence community have done. They presumably characterize him as an enemy combatant who is part of the “enemy” terrorist organizations; no requirement that he actually take up arms; his meetings with his confreres is more than adequate to fulfil the requirements of combatantcy under the terms of the “armed conflict” with Al Qaeda and affiliates. This would suffice, under both domestic and international law as the US executive, but also the Supreme Court, have defined the conflict. (But would be/is much disputed by many of the international law community.)
The question is, what difference, if any, does it make that he is a US citizen? Answer, as a combatant and therefore as a person subject to being targeted, none. You can target him like any other combatant.
Presumably the argument would also be made in the case of capture, viz., his citizen status nets him nothing special; he is an unprivileged belligerent, etc. I assume this is what the Obama administration would argue were he captured, irrespective of what they actually decided to do with him as a political or policy matter, and in my estimation the courts would go along with this, as a matter of detention. Perhaps I am wrong about what Justice Kennedy would rule if it were a case of capture and detention – but I frankly cannot imagine that the SCOTUS would say that targeting standards of a combatant – even one not actually bearing arms – would be any different US citizen or no. It is also very doubtful that the SCOTUS would quarrel with the characterization of Anwar al-Aulaqi as a combatant, despite not carrying arms. Hanging around for meetings in Al Qaeda in the Arabian Peninsula would be quite enough.
Second. I realize that this way of framing things – combatant, targeting of – is very attractive from a legal standpoint, particularly in this kind of case. The problem with it is that it is too narrow a legal justification. It is not actually what the President and the intelligence community mean as they expand – sensibly, correctly, the hugely positive innovation of the Obama administration in responding to terrorists “on-offense” in my view, though I grant your mileage may differ. The reason why is that although from a domestic law standpoint, it is easy, in the case of any group that names itself “Al Qaeda –” to say that the US is in an armed conflict with it. Every branch of the US government has accepted this as an armed conflict.
From an international law standpoint, you can make it out as an armed conflict, however, only insofar as you count the armed conflict as the Bush administration did – a global war on terror. A war in a legal sense without territorial restriction, a function solely of where targets – whose (legally correctly) targetable activities would not be limited to carrying arms by any means – happened to be located anywhere in the world. If the armed conflict is global in that sense, then combatants can be located and targeted anywhere – presumably subject to prudential rules that distinguish between failed and ungoverned places and elsewhere. As a practical matter, this global characterization had the virtue of being an accurate strategic frame – a global and prolonged struggle, like the Cold War, with great virtue seeing it as war from a strategic vantage point. But as a legal matter, it was neither true as a matter of ordinary laws of war nor actually faithful to how the Bush administration conducted it.
Meaning: The Bush administration was not interested, for obvious reasons, in actually conducting hostilities in a zillion places worldwide. What it wanted was have available to it the legal incidents of a condition of armed conflict when it sought to detain, kill, capture, etc. Which is to say, it wanted the legal incidents that attach to actual conduct of hostilities even in circumstances where it had no intention or desire to conduct any. This was disingenuous and a bad legal move – and I say this, obviously, as a strong national security conservative generally highly supportive of the Bush administration’s war on terror stance.
One sees the attractiveness of the frame – if you see it strategically as a war, and a global one, then shouldn’t your legal frame follow your strategy? But the Cold War was very usefully seen as a war in strategic, global terms – yet we never saw every moment, everywhere in confrontation with the Soviets over forty years to be a legal armed conflict governed by rules that were supposed to apply in the actual conduct of hostilities. The actual law of armed conflict applied only when there were ... actual armed conflicts in actual places and theatres.
Moreover, as a general legal matter, speaking as a laws of war scholar, my understanding of the laws of war is that they apply to a conflict with a non-state actor only when certain threshold conditions indicating that hostilities have risen to some level that it is an armed conflict, and not civil disturbances or any else. In the case of state-state conflict, the Geneva Conventions have a formal statement of conditions that triggers them in (nearly) any state-state confrontation of state armed forces. In the case of non-state actors, there is a customary law standard, to which the US agrees, that involves – without getting technical – to levels of fighting that are sustained, on-going, reach a certain threshold of, well, actual fighting and hostilities. Individual incidents of targeted killing will not actually meet that threshold in many instances. Which is to say, unless you adopt a “global” standard for aggregating all the violence together as a single conflict, you won’t have instances of the use of force in many, many instances of targeted killing that rise to the level of an armed conflict so to trigger application of the rules of armed conflict. (This is perhaps the one point on which I agree with Professor Mary Ellen O’Connell.)
Why does it matter that you haven’t reached that threshold when you target someone – US citizen or alien? If it’s not an armed conflict, then the very idea of combatancy does not apply. Let me skip over a lot of other stuff and simply say – that is the risk, the fundamental problem, of the form of legal analysis that successive US governments appear (we know very little about the presumed internal legal opinions) to have adopted as jihadist groups arose in the 1990s to now. We’ve been talking about the justification being combatancy, but there might not be an armed conflict so as to create combatants.
Which is why I have been arguing that the US needs to recover the traditional basis on which it has always gone after terrorists and non-state actors, and used force in the whole post-war period. That is the international law doctrine of self defense, with its domestic law cognate as recognized in the CIA statute of vital “national security” under a finding and orders of the President. The truth is, that’s what the Obama administration is doing when it targets Anwar al-Aulaqi, undertakes clandestine and covert ops in various places – its targeted killings, using special forces or CIA agents or UAVs – it is engaging in uses of force under the customary law of self-defense, and domestically under the processes and oversight set out in the CIA enabling statutes.
That doctrine of self-defense is not merely discretionary or standardless – it is premised on the customary law requirements of necessity (in making a decision to target an individual, US citizen or not) and proportionality (whether, considered against the value of the target, likely collateral damage is permissible). The collateral damage standard under proportionality could presumably not be any lower than the equivalent armed conflict standard. It is actually what the Obama administration, the Bush administration, and the Clinton administration meant when they undertook these kinds of uses of force – and the insistence of justifying all these things under armed conflict law weakens the core of the laws of war. Better to call it by the category we have always meant – the international law of self-defense, and its domestic law cognate of procedures and oversight by which the Fifth Function, so-called, of uses of force for vital national security, is carried out.
All that said, the involvement of US citizens in jihadist terrorist groups is going to grow – in both in-US plots and, as in this case, someone who has showed up at AQAP HQ. I don’t suppose that this radical cleric has any more constitutional right not to be targeted than, for example, a US nuclear weapons scientist defecting to the Soviet Union in the 1960s would have against CIA agents shooting him as he made his way through East Berlin. There is a procedure in US domestic law by which the Executive makes these decisions and the Legislature undertakes oversight.
That oversight procedure would likely benefit from tightening – as I have elsewhere argued, the CIA needs to have the assurance of two things (a) that if accused by Baltasar Garzon of extrajudicial execution in some Spanish court, the Congressional leaders of each party would be entirely implicated, in documents and video, in the decision and (b) that the necessary briefings to ensure that result could somehow be kept out of the hands of Al Qaeda, as in, remain confidential and not be leaked to NYT reporters who know at least two things: no Pulitzer has even been won protecting the national security agencies and some have been won leaking their secrets. Reports that laptops recovered in the raid that Priest also discusses, in Somalia a few months back, contained catalogued Congressional testimony on US counterterrorism makes (b) unlikely; Speaker Pelosi’s discomfiture at having been caught out dissembling about how much she had been briefed on will, in the nature of Congress, ensures that (a) is also unlikley, as Congress seeks to know as little as it can get away with about these most vital matters, at least if knowing means any form of accountability.
(Now I am really, really out of time, so I will try to go back and reread this to see if I think I made any glaring errors of substance or writing, but it won’t be til much later, if at all. Treat this as first draft, although conclusory. I welcome thoughts from the Conspirators, particularly on the constitutional law questions.)