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