Dehn and Heller on the Targeted Killing of Anwar Al-Aulaqi

by Kevin Jon Heller

Pennumbra, the on-line companion to the University of Pennsylvania Law Review, is hosting the debate.  John’s opening statement and my reply — which is something of a misnomer, because the reply doesn’t directly address John’s arguments — are currently available.  Both focus on Judge Bates’ opinion dismissing the ACLU/CCR lawsuit; I argue that, contrary to the Judge’s claim, his opinion makes it impossible for a US citizen to ever challenge the legality of his or her targeted killing.  John’s closing statement will be up next Monday, and my closing statement — which does reply to John’s arguments — will be available the week after that.

Readers will recognize some aspects of my argument from previous blog posts, but my Pennumbra contribution is longer and more detailed.  You can find the debate here.  My thanks to the University of Pennsylvania Law Review for the invite!

http://opiniojuris.org/2011/02/15/dehn-and-heller-on-the-targeted-killing-of-anwar-al-aulaqi/

4 Responses

  1. Thanks, Kevin.  I also thank Pennumbra for the invitation to participate in the debate.

    I would be be happy to respond to any questions or comments about my opening statement in this comment thread.

  2. Are we living in coordinated spaces?  I am supposed to debate someone on this on Thursday here at Toledo.  Some would think these timings are serendipitous, but I find them troubling.  A hamster in some cage of which I am unaware – trotted out at appropriate times. Enjoyed reading your positions.
    Best,
    Ben

  3. Dear Professors,

    Following on from Prof. Davis’s post, I wish you had already had your debate before I gave a talk on this topic to a local inn-of-court a few weeks ago!

    Prof Dehn,

    Am I right in thinking that the test you propose is “Was/is there probable cause for extrajudicial killing when assessed against the relevant legal test?”, and just what is the relevant legal test (eg, direct participation in hostilities; member of al-Qaeda (or perhaps put more broadly an organised armed group in a conflict with the United States); presented a concrete, specific and imminent threat to life …) is somethign you address in your closing statement?

    Prof Heller,

    I note your view that there is not an armed conflict between the US and AQAP in Yemen. I think that raises an interesting question. Do you have a view as to what ‘standard of proof’ the government would have to meet on threshold questions like: ‘Is there an armed conflict between the US and AQAP?’ and ‘Is Al-Aulaqi a member of AQAP?’

  4. Ian,

    You are fundamentally correct.  My argument was that there must be probable cause (or “reasonable belief” under the “totality of the circumstances”) for targetable status under the AUMF.

    And yes, my closing statement discusses the legal framework for targeting an individual pursuant to the AUMF, but not for targeting AQAP (or an individual member of it) as an “independent” threat to the U.S. The latter topic is a bit too complex for the format of the debate.

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