Opinio Juris Discussions of Targeting of US Citizen

Scott Shane’s report in this morning’s NYT on the Obama administration putting the radical cleric, but US citizen, Anwar al-Awlaki, on the kill or capture list has stirred a lot of discussion.  (Update: let me add Max Fisher’s Atlantic discussion as well.)  Scott Shane:

The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, who is believed to have shifted from encouraging attacks on the United States to directly participating in them, intelligence and counterterrorism officials said Tuesday.

Mr. Awlaki, who was born in New Mexico and spent years in the United States as an imam, is in hiding in Yemen. He has been the focus of intense scrutiny since he was linked to Maj. Nidal Malik Hasan, the Army psychiatrist accused of killing 13 people at Fort Hood, Tex., in November, and then to Umar Farouk Abdulmutallab, the Nigerian man charged with trying to blow up a Detroit-bound airliner on Dec. 25.

American counterterrorism officials say Mr. Awlaki is an operative of Al Qaeda in the Arabian Peninsula, the affiliate of the terror network in Yemen and Saudi Arabia. They say they believe that he has become a recruiter for the terrorist network, feeding prospects into plots aimed at the United States and at Americans abroad, the officials said.

It is extremely rare, if not unprecedented, for an American to be approved for targeted killing, officials said. A former senior legal official in the administration of George W. Bush said he did not know of any American who was approved for targeted killing under the former president.

But the director of national intelligence, Dennis C. Blair, told a House hearing in February that such a step was possible. “We take direct actions against terrorists in the intelligence community,” he said. “If we think that direct action will involve killing an American, we get specific permission to do that.” He did not name Mr. Awlaki as a target.

The step taken against Mr. Awlaki, which occurred earlier this year, is a vivid illustration of his rise to prominence in the constellation of terrorist leaders. But his popularity as a cleric, whose lectures on Islamic scripture have a large following among English-speaking Muslims, means any action against him could rebound against the United States in the larger ideological campaign against Al Qaeda.

The possibility that Mr. Awlaki might be added to the target list was reported by The Los Angeles Times in January, and Reuters reported on Tuesday that he was approved for capture or killing.

“The danger Awlaki poses to this country is no longer confined to words,” said an American official, who like other current and former officials interviewed for this article spoke of the classified counterterrorism measures on the condition of anonymity. “He’s gotten involved in plots.”

The official added: “The United States works, exactly as the American people expect, to overcome threats to their security, and this individual — through his own actions — has become one. Awlaki knows what he’s done, and he knows he won’t be met with handshakes and flowers. None of this should surprise anyone.”

I do not have time to comment on this now, but instead refer readers to a couple of discussions at Opinio Juris international law blog.  One is by Julian Ku, raising the basic question – but see the comments as well, including the brief comment by Kal Raustiala, author of a new and leading book, Does the Constitution Follow the Flag?, and comments from John Dehn at West Point, Jordan Paust at Houston, and Howard Gilbert as of now.

Then there is a post on a slightly different question from Kevin Jon Heller, asking about the effect in domestic law of a place where a killing might occur.  There should be some more comments to each.  I will try to get something up myself, but quite swept up in the broader targeted killing discussion, responding to journalists.  I will limit myself to noting that the legal answer is, in my view, yes – but how you get to yes differs depending upon whether you think this particular targeting is in an armed conflict in a strict legal sense, or whether you think it is an act of legitimate self-defense, as the Legal Adviser referenced in his ASIL speech.