Lawfare links the newspaper coverage at this post. Al-Aulaqi was an American-born radical Muslim cleric who had emerged as both a leading voice in Al Qaeda recruiting and propaganda over the internet and, according to the US government, was also involved in operations and operational planning with Al Qaeda in the Arabian Peninsula, an offshoot Al Qaeda terrorist organization that the US governments regards as an “associated force” with Al Qaeda (and hence covered by the terms of the original Authorization to Use Military Force).
When it became public that the Obama administration had put Al-Aulaqi on a target list, the ACLU filed suit on his behalf through his father; it made international law arguments that included the proposition that he was outside of the war zone and hence could only be sought through law enforcement methods, as well as domestic law arguments that this amounted to the execution of a citizen designated by the President without judicial process. The suit was dismissed in December 2010 by Judge John Bates.
(The newspaper accounts at the Lawfare link give decent background on the court case and background on Al-Aulaqi. As background academic reading on the issues in this case, see Robert Chesney’s forthcoming Yearbook of International Law article, available at SSRN in draft, “Who May Be Killed: Anwar al-Awlaki as a Case Study.” I will try to add some more links to this post later; for background on the question of the “geography” of armed conflict, see this short essay; for a philosophical argument on whether drones make using force “too easy,” see this essay; and for a short blog post arguing against David Ignatius’ claim that the US is “addicted” to drones, see Opinio Juris, “Tactically Precise, Strategically Incontinent?” )
The government has maintained throughout all this that Al-Aulaqi was deemed a lawful target not on account of his expression of opinions, including calls to violence against the United States and its citizens, but instead on account of his operational involvement in AQAP, in ways going to leadership of an associated force terrorist organization and operational and planning involvement. My view of this targeted killing is straightforwardly, congratulations, Mr. President. What has been visible publicly leaves little or no doubt in my mind that Al-Aulaqi was deeply involved in AQAP in operations, and indeed at the highest levels.
Update: I’ve done a couple of phone interviews in the last couple of hours, and thought it might be useful to give a summary version of how I think the US government sees the law and legal policy in this attack. (This is merely my personal sense of the US government’s legal views, supplemented as indicated by my own views. I’m not an insider; I have never worked for the US government, and people don’t leak things to me, so this is my attempt to read the US legal position from the outside.)
Who? As an international law matter, is Al-Aulaqi a lawful target? The US government sees him as taking part in hostilities, part of the operational leadership of an associated force with Al Qaeda, the AQAP. So, yes, he can be targeted with lethal force – and targeted without warning, without an attempt to arrest or apprehend as a law enforcement matter.
Where? Does it matter that he was in Yemen, and not an “active battlefield” in a conventional hostilities sense? The US government does not accept the idea that the armed conflict with Al Qaeda – or armed conflict generally – is confined as a legal matter to some notion of “theatres of conflict” or “active battlefields” or related terms that have been used in recent years by academics and activist groups. As I understand the US government position, it sticks by the traditional concept of “hostilities,” and that where the hostiles go, the possibility of armed conflict goes too (I try to explain this evolution of these views in this short essay). So the fact that he was present in Yemen does not make him beyond targeting, because he is not present in some “active” battlezone such as Afghanistan.
This claim – the conflict follows the participants – frequently leads to a complaint that this means the US might target him in Paris or London. The US position is that the standard for addressing non-state actor terrorists taking safe haven somewhere depends on whether the sovereign where the terrorist is hiding is “unwilling or unable” to address the threat. No, there won’t be Predators Over Paris; Yemen or Somalia is another matter, as President Obama has repeatedly and without cavil said in speeches over the last few years.
By whom can he be targeted? The military or the CIA? US domestic law provides authority for the President to direct either the US military, or the CIA, or both acting together, to undertake the use of force abroad. In this case, it appears from first reports that the operation was “directed” by the CIA – presumably on account of intelligence roles – and carried out operationally by the military. As I have said on other occasions (and, heads-up, Robert Chesney is finishing an important new paper on this topic) I think there are important ways in which the legal authorities, oversight and reporting, and other activities associated with an intermingling of CIA and military special operations should be re-examined. One in particular is some way of recognizing a category of “deniable” operations that are not truly covert.
US citizenship? What difference, if any, does being a US citizen make? The fact of US citizenship is the factor in this situation that has most excited the blogosphere. Insofar as Al-Aulaqi was targeted for taking operational part in groups engaged in armed conflict with the United States, historically the fact of citizenship has been neither here nor there. That’s the easy answer – essentially just asserting the existence of the armed conflict like any other – and as a legal basis for targeting, I think the US government is on solid ground if that’s its claim. And to reiterate what is said above, the US government has been very careful to rely not upon “internet preacher shooting his mouth off,” but instead on distinct operational roles. (To be perfectly clear: I myself believe there will eventually be cases of incitement to killing and participation over the internet by radical jihadist preachers that will raise the question of targeting on the basis of incitement alone, and my own view is that there are circumstances where that will be justified, including some who will be US citizens – and in the US government’s view, this is not, repeat not, that case.)
The reality, of course, is that this is not like any other armed conflict, and though I believe the US government had firm grounds domestically and internationally to target Al-Aulaqi, I also believe as a matter of forward looking legal policy that the US should elaborate more extensive and explicit oversight procedures in the case of targeting of US citizens that will ensure the buy-in of the political branches. It seems clear that this was done informally in the designation of Al-Aulaqi as a target, but I believe this process should be formalized in the secret reporting to Congress. The courts should, as Judge John Bates did in dismissing the ACLU’s attempt to secure an injunction against targeting Al-Aulaqi, decline to intervene in processes of vital national security abroad in which the political branches have an agreed-upon procedure of oversight and accountability.
As to the due process claims, as Robert Chesney notes at Lawfare, the US government does not appear to be taking a blanket position that a US citizen deemed to be a targetable participant in a terrorist group has no due process rights outside of the US in any sense, on the one hand, but neither does it appear to take the position that the vindication of whatever those due process rights are entitles the citizen to merely being subject to an attempt to arrest, including in a remote location in Yemen, and to warning before using lethal force. I don’t think the US government has a worked out position suitable for every case – as seems to me quite appropriate. It is in the process of working out something that is only partly like straight-up armed conflict law and something that is gradually, inchoately emerging as a sort of “state practice” of covert intelligence operations. The working out of those positions is proceeding case by case.
One thing that does appear quite settled as far as the US government’s position is concerned, however, is that it is simply inapposite to talk about this as “summary execution upon nothing more than the order of the President” – it’s simply not the correct legal frame. Ben Wittes names a number of these factors in his Lawfare discussion of the process that is due in this matter. I’d say that among other things, the “summary execution without due process” meme fails to take account of
- taking up operational roles in armed conflict against the United States;
- fleeing to places beyond the bounds of law enforcement that might serve to arrest Al-Aulaqi if he had been in the territorial US;
- the existence of robust domestic legal authorities for undertaking lethal action even against a US citizen (it is not as if this was not understood as a possibility in the Cold War);
- acknowledgment that the US was willing to consider ways to accepting surrender and coming into custody that would allow judicial review; and
- a lengthy judicial opinion that refused to take a simplistic view of due process in this very case (in either direction, simply targetable combatant or US citizen denied due process) irrespective of whether one thinks the outcome correct or not.
These and other such circumstances re-draw the caricature offered on some of the blogs of the President taking it into his head to assassinate, using death from the skies, some US citizen who merely happens to be outside the US at that moment. Whatever the situation is exactly, it is a lot more than that.
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