How should we think about targeting Al-Aulaqi? Here's a quick take, trying to put the main questions in some logical order. As the reader can see from other posts on this blog, many issues are contested, including what the proper legal questions are, so please understand that this is simply one way of looking at the issues - though I believe (without any special inside information) that it is more or less in line with the US government legal position.
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. (Although many in the international law academic and advocacy communities have essentially taken on the ICRC's full DPH views as expressed in its interpretive guidance, the US government has not; and although there seems to be a bit (as predicted by critics of the ICRC's issuing of the "interpretive guidance") of believing that if you repeat it often enough, you make it so, again that is not the US government's view. State practice still matters.)
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 though these were terms with recognized legal meanings. As I understand the US government position, it sticks by the traditional concept of “hostilities” as the legal touchstone, 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. And indeed, as the President said in his statement yesterday on the raid - no safe havens anywhere.
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. Al-Aulaqi has entered into operational roles with a group acting in armed conflict with the United States, and is targetable on that basis, and citizenship has historically been no bar to attack. To reiterate what is said above: in order to reach the conclusion that he is targetable, the US government has been very careful to rely not upon “internet preacher shooting his mouth off,” but instead on distinct operational roles.