The ACLU/CCR Reply Brief in Al-Aulaqi (and My Reply to Wittes)

by Kevin Jon Heller

You can find the brief here.  I was going to write about the “political question” section, but Ben Wittes beat me to it.  Here is what he says (emphasis mine):

Fifth, the groups’ arguments that the case does not present a political question are deeply radical and fascinating. For present purposes, consider only some of the main themes of the section. They begin by asserting that targeting decisions with respect to a U.S. national in Yemen are “no less justiciable that the question[s] of whether the executive branch could indefinitely detain an American citizen captured in Afghanistan” or “indefinitely detain non-citizens at Guantanamo Bay” or “charge and try suspects in ad-hoc military commissions.” In other words, the brief frontally and overtly attempts to do exactly what conservatives have warned would result from judicial intervention in detention matters: create a judicial supervisory role over at least some targeting matters. What’s more, the brief insists that the nature and scope of armed conflict overseas is itself a judicial matter. A subsection of the brief bears the heading, “The existence and scope of the armed conflict is not a political question” and argues that the court should evaluate government claims that an armed conflict exists based on the conflict’s intensity and the degree of organization of the parties. If the courts ever adopt this vision of their role in overseas conflict, it would constitute a revolution in military affairs.

With respect to Wittes, this is an inaccurate description of the brief.  The brief does not attempt to “create a judicial supervisory role over at least some targeting matters.”  Targeting is a term of art; it describes the act of determining where, when, and how to use armed force against an enemy in the context of an armed conflict.  As such, the U.S. “targets” an alleged terrorist only if the laws of war govern the use of force against him — if, in other words, the alleged terrorist is participating in an actual armed conflict.  If there is no armed conflict, there is no targeting — there is simply the use of force incident to law-enforcement activity.  The ACLU/CCR brief is thus arguing that, as a matter of law, there is no armed conflict between the U.S. and the group of which Al-Aulaqi is a part, Al-Qaeda in the Arabian Peninsula (AQAP), so the use of lethal force against him does not qualify as “targeting.”  And it is arguing that the government’s legal determination that such an armed conflict exists is reviewable by the judiciary.  Neither claim, however contestable, is even remotely “radical.”

Armed Conflict

The brief’s conclusion is correct: from the perspective of international law, there is no armed conflict between the U.S. and AQAP.  Unfortunately, I think its argument could be stronger.  The brief begins by citing the relevant ICTY cases on the definition of armed conflict (Tadic, Haradinaj, etc.) and arguing that the conflict between the U.S. and AQAP in Yemen fails the definition’s organization and intensity requirements (pp. 34-35).  So far so good. But then it insists on an exclusively territorial approach to armed conflict, relying on a declaration by Mary Ellen O’Connell, the Notre Dame law professor.  Here is the crux of her declaration:

13. Armed conflict has a territorial aspect. It has territorial limits. It exists where (but only where) fighting by organized armed groups is intense and lasts for a significant period.

14. It is my understanding that the government has argued that the armed conflict against al Qaeda is a global conflict, and that the law of armed conflict governs the detention, prosecution, and killing of suspected al Qaeda associates wherever they are found. This conception of armed conflict is inconsistent with the one recognized by international law. That the United States is engaged in armed conflict against al Qaeda in Afghanistan does not mean that the United States can rely on the law of armed contlict to engage suspected associates of al Qaeda in other countries. The application of the law of armed conflict depends on the existence of an armed conflict. Armed conflict exists in the territorially limited zone of intense armed fighting by organized armed groups.

I disagree with this definition of armed conflict, as I have noted before.  I have no problem with the idea that an individual who is member of an “organized armed group” participating in a territorially-bounded armed conflict is targetable even when he is outside of that armed conflict.  Nor do I have a problem with the idea that a civilian who directly participates in a territorially-bounded armed conflict is targetable for the duration of his participation even if it he is outside of that territory.  The problem with the government’s argument in Al-Aulaqi is not that it takes a non-territorial approach to armed conflict, but that it cannot identify an actual armed conflict to which Al-Aulaqi is connected, either as a member of an organized armed group or as a civilian directly participating in hostilities.

Unfortunately, because the brief relies on O’Connell’s declaration, it does not make that argument as well as it could (and should).  First, it barely addresses the possibility that Al-Aulaqi can be considered a member of an organized armed group fighting in Afghanistan or Pakistan, where there are non-international armed conflicts.  Instead, it simply points out that the government provides no support for its claim that “AQAP is an organized armed group that is either part of al-Qaeda or, alternatively, is an organized associated force, or cobelligerent, of Al-Qaeda” (pp. 38-39).  Correct conclusion, but weak analysis.  The brief should have addressed the “co-belligerency” argument — the darling of conservative scholars and at least some federal courts — at greater length, if only to point out that co-belligerency is a concept that exists only in international armed conflict and has no place in non-international armed conflict.  (Indeed, the idea that a concept that regulates the relationship between states can be analogically imported into non-international armed conflict, treating organized armed groups as equivalent to states for purposes of “neutrality” and the like, is far more radical than anything in the ACLU/CCR brief.)  Without that erroneous concept, it is almost impossible to argue that Al-Aulaqi is a member of Al-Qaeda in Afghanistan or Pakistan.

Second, the brief relegates the DPH argument to a footnote (p. 32 n.26) and even there does not address the possibility that a civilian could directly participate in a territorially-bounded armed conflict, making him targetable for the duration of his participation, even though he is physically located outside of the relevant territory.  (The U.S-based CIA-agent operating a drone in Pakistan, for example.)  What kinds of activities outside of an armed conflict qualify as DPH is open to debate; as I’ve argued before, the category of activities is far narrower than the category of activities that the U.S. considers “material support” for a terrorist group.  But it is at least possible that Al-Aulaqi has engaged — and more importantly, will engage again — in activities concerning al-Qaeda in Afghanistan and Pakistan that would make him targetable for the duration of his participation.

Judicial Review

The more significant issue, of course, is who gets to decide the legal question of whether an armed conflict exists between the U.S. and AQAP — the executive alone, or the executive with judicial review.  This is the strength of the ACLU/CCR brief, which does an excellent job explaining why there is nothing unusual about the judiciary reviewing executive determinations concerning the existence and scope of armed conflict.  It cites numerous examples of courts in the U.S., the U.K., providing such judicial review (pp. 32-33, 35-37).  Most importantly, echoing a post I wrote a few weeks ago, the brief points out that the Supreme Court reviewed a very similar government claim in Hamdan.  In that case, the government argued — in order to justify not applying the Geneva Conventions to detainees at Guantanamo — that the “conflict” between the U.S. and al-Qaeda in Afghanistan was neither international nor non-international.  The Supreme Court disagreed, holding that, at a minimum, the conflict was a non-international armed conflict to which Common Article 3 applied.

There is no operative legal distinction between Hamdan and Al-Aulaqi.  If the Supreme Court had the right, “political question doctrine” notwithstanding, to determine the nature of the conflict between the U.S. and al-Qaeda in Afghanistan, it certainly has the right now to determine the nature of the conflict between the U.S. and AQAP in Yemen — including determining that no conflict actually exists between the two.

I’ll ask again: do Wittes and other conservative scholars who endorse the “political question” rationale for dismissing the ACLU/CCR lawsuit believe that Hamdan was wrongly decided?  Was it “deeply radical” and a “revolution in military affairs” for the judiciary to insist that it has a role to play in determining the legal regime that applied to the President’s detention decisions?  If not, why would it be “deeply radical” and a “revolution in military affairs” for the judiciary to insist that it has a role to play in determining the legal regime that applies to the President’s decision to use armed force against someone it believes is involved in terrorism?

POSTSCRIPT: I should add that Wittes is certainly free to argue that the executive should have the exclusive and unreviewable right under the political-question doctrine to determine whether, as a matter of law, “an armed conflict exists based on the conflict’s intensity and the degree of organization of the parties.”  But that is very different than arguing that the ACLU and CCR are attempting to “create a judicial supervisory role over at least some targeting matters,” which simply presumes that the use of armed force against Al-Aulaqi would qualify as “targeting” him — precisely what the ACLU/CCR lawsuit denies.  The argument would also still have to address the Supreme Court’s holding to the contrary in Hamdan.

12 Responses

  1. FINALLY we’re getting back down to brass tacks in a court of law (if Bates does his job) about who the hell the United States Congress actually authorized the President to kill, under the law of armed conflict, nine years ago.  The long, inexcusable judicial and Congressional neglect of that core question obviously underlies a great many of the abuses of power committed by the President and our CIA and military since.

    Thanks for quickly and thoughtfully addressing this issue, Kevin.

    O’Connell is well versed in the question she addressed, having just presided over an international committee that studied and tried to definitively identify the characteristics of an armed conflict in operation, and thus when the use of military force is covered by the law of armed conflict.   That committee issued its final report in August (perhaps O’Connell cites it in her declaration, which I haven’t yet read):

    On first impression, it does seem that more space in the brief devoted to how armed conflict is distinguished from one-sided “sporadic bombings and other violent acts,” and to Footnote 26′s important points, was warranted.  For example, given the ongoing judicial erasing (markedly at the appellate level) of limits on the presidential detention power under the AUMF, as a result of the Guantanamo habeas litigation, with which Judge Bates is very familiar, this sentence covers a lot of important territory:

    “The authority to kill is narrower than the authority to detain.”

    On direct participation in hostilities, this comprehensive, careful analysis by Michael Schmitt published in May adds a lot to the discussion:

  2. Anon,

    Thanks for the kind words — and the links.  Schmitt and I don’t agree about much (we had a memorable exchange a few weeks ago when he was visiting Melbourne), but I appreciate how seriously he takes the critical issues.

  3. The Hamdan case may have occurred within the context of an armed conflict, but ultimately it was a dispute about when the Article II branch may create courts that render judicial decisions about a civilian. It was not about targeting, or even detention, but rather about the power to try on criminal charges, which is a quintessentially Judicial matter.

    Neither side disputed that Hamdan was captured during an armed conflict, so the question was whether he was protected by any part of the Third Geneva Convention. The Court never decided questions about the nature of the armed conflict (“We need not decide the merits of this argument”), but instead applied the arguments presented by the government and decided that, based on government claims, Common Article 3 would apply to Hamdan. If in this new case you can use the arguments in the government’s brief to prove something favorable to the petitioner, then the same mechanism might apply.

    While I am not convinced that Hamdan is as relevant as you seem to think, I agree that the question of whether an armed conflict exists or not falls within the power of the courts. In the past the courts have addressed this question only by reviewing the resolutions and findings of Congress and the Executive to ensure that the paperwork is in order.

    You should not confuse the government’s frequent reference to “the political branches” with “the political question doctrine”. The Obama administration has tried to avoid any reference to “Article II power” on which the Bush administration relied for its arguments. So the government brief tries to make the same arguments using different code words that might slip by and not alienate the liberal political base. The government brief does not claim that this is a “political question”, but does claim that the Article I and Article II branches (the “political” branches) have the authority to decide the question, while the Article III branch is not suited to decide the merits of the issue (but is certainly free to check the paperwork).

    If the courts decide to address the merits, the question may not be whether this is an armed conflict under international law, but rather whether it is an armed conflict under US law. Congress exercised its “war powers” under the AUMF and explicitly delegated to the President the question of who is involved. The Executive made certain findings of fact based on evidence available. The paperwork appears to be in order.

    From the context of US history, some of the arguments raised here do not make sense. The US did not regard any of the Confederate states to be independent countries, so the Civil War was a non-international conflict. The Confederacy was a military alliance between non-national co-belligerents, but it has always been regarded as a single war and not 11 separate armed conflicts, one with each Confederate state. No concept of locality was applied, and the US targeted forces in states that had previously not had battlefields or large armies whenever a Federal army crossed a state border or the Navy attacked a distant port. Then there was Vietnam, where the US targeted members of a non-state party (the Viet Cong) and on occasion their non-state co-belligerents in nominally neutral third countries (the Pathet Lao and Khmer Rouge), as well as their state co-belligerent (North Vietnam). Thus claims that an armed conflict is geographically limited or that non-state parties cannot have co-belligerents has to confront hundreds of years of history, starting I suppose with the Native American tribes allied to both sides of the Revolutionary War.

  4. I have got to admit KJH makes some really good points.
    I often disagree with him (although I do not post) but when he is insightful (as he usually is) AND I agree with his position … well all I can say is I tend to agree with him on this issue.

  5. JWB,

    Thanks.  Funny, though, I thought we agreed on many things.  I guess it’s just that you’re always civil when you comment — and only comment when you don’t completely hate what I’ve said… :)

  6. I actually really laughed.  Thanks.

  7. Prof. Heller argues that I over-emphasize territoriality in discussing the existence of armed conflict.  The Obama Administration, however, acts on this very concept–its understanding of when it may kill without warning is based fundamentally on conditions found in some territorities but not others.  The Administration does not assert the right to kill without warning in the U.S., European Union, etc.  It certainly does kill as if on a battlefield in those places.  Rather it asserts and acts on a belief that killing without warning may be carried out  in states experiencing instability.  It restricts its claim to only certain places.  The problem for the Administration is that international law simply does not support its claim to battlefield tactics in all of the places where it wants to resort to them.  International law has a definition of armed conflict (see the ILA Report mentioned in the first comment above.)  Instability is not armed conflict.

  8. I failed to add “not” in one sentence of the above post:  The U.S. certainly does not kill as if on a battlefield in the U.S. Europe, etc.

  9. “The Administration does not assert the right to kill without warning in the U.S., European Union, etc.”

    I don’t see how the administration’s practice of only using targeted killings in unstable countries has any implications for the administration’s view of the scope of the armed conflict.

    The pragmatic consequences of carrying out targeted killings in Western Europe would be unthinkable — regardless of whether such killings were permissible under the laws of armed conflict.  (After all, there’s no rule that countries can’t object to something just because it was permitted by the laws of armed conflict.)  The administration also presumably prefers to capture rather than kill suspects, and it is difficult to imagine that we would ever know the location of a suspect in the U.S. or Western Europe well enough to kill them, without being able to capture them instead.

    The administration is not required to do everything it thinks the law of armed conflict would permit.

  10. With due respect to Professor O’Connell, the international law supporting the administration’s contextual, location-specific approach is firmly based in the law of neutrality and state responsibility.  It has nothing to do with the idea that instability is equivalent to armed conflict.

    With that said, I disagree slightly with the emphasis Kevin places on who determines the existence of armed conflict.  In my opinion, Congress has done that already.  I’ll explain more in a bit.

  11. Response…The Administration should base its position on the law of neutrality, state responsibility, the jus ad bellum, the jus in bello, human rights law, the principle of non-intervention, etc.  If it did, it would not be engaged in killing persons without warning beyond battlefields.

  12. Mary Ellen,


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