Anwar Al-Aulaqi Killed in Drone Strike in Yemen

by Kenneth Anderson

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.

To be perfectly clear, however: 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 Washington Post editorial on the Al-Aulaqi killing today largely endorses what I suggest here, however, in part because it seems obvious to many people that  - that at some point, advocacy and incitement in the context of actual people doing actual things, even if the preacher is off in Yemen talking over the internet, is enough to make a person “operational.”  Indeed, the WP editorial takes it for granted that of course this public advocacy role is at least part of the reason why targeting him was a very good thing to do.

The reality, of course, is that this is not like any other armed conflict.  Though the US government had firm grounds domestically and internationally to target Al-Aulaqi simply as an operational participant in a group engaged in armed conflict against the United States, as a matter of forward-looking legal policy, the US should elaborate more extensive and explicit oversight procedures in the case of targeting of US citizens, in part to ensure the domestic legitimacy of the process and in order to 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, the question is, as always, in the circumstances what process is due?  As Robert Chesney notes at Lawfare, the US government does not appear to take a blanket position that a US citizen deemed to be a targetable participant in a terrorist group in an armed conflict has no due process rights outside of the US in any sense, on the one hand.  But neither does it 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 (where that means in this case a remote, hostile location in Yemen), and to warning before using lethal force.

Whatever that legal policy turns out to be, it’s not a matter of mixing law enforcement and conventional war, a little of this and a little of that, but instead a question of techniques suited to this distinct kind of “intellgence-driven conflict,” as I’ve sometimes called it.  I don’t think the US government has a worked-out position suitable for every case — as seems to me quite appropriate at this stage.  I agree with Jack Goldsmith’s evaluation of the administration’s position in the New York Times; the administration has proceeded with caution in how it characterizes what process is due, and we should expect it to evolve over time.  The administration is in the casuistical process of working out something that is gradually, inchoately emerging as a sort of “state practice” of covert intelligence operations.

One thing that does appear quite settled as far as the US government’s position is concerned, however.  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.  It’s not execution, to start with, though it is killing; it is not summary, though it is without an attempt to apprehend in striking; and calling it merely the order of the president is not the same as the judiciary treating this as beyond the judiciary’s proper function.  Ben Wittes names a number of these factors in his Lawfare discussion of the process that is due in this matter. I’d put them this way – 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 territorial bounds of law enforcement agencies 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.

(Here is the opening of the post as originally put up in the hours following news reports of Al-Aulaqi’s death.  The links are still useful if you want background on the attack and initial commentary.)

We’ve talked extensively about this case here at OJ, so I won’t go back over that ground now.  My last comment on drones and targeted killing was this post here at OJ (“Tactically Precise, Strategically Incontinent?”), endorsing the Washington Post’s recent editorial on drones and criticizing David Ignatius’ claim that the US is “addicted” to them.  But Lawfare has links to the leading US newspaper accounts if you’d like to see how it is being covered in the United States.  I don’t suppose any of the arguments over strikes in Yemen, targeting a US citizen, the proper role of the courts if any, etc., are going to disappear on account of this apparently successful drone strike.

Collected links for reference: Here is the WP’s Scott Wilson reporting on President Obama’s speech following the attack, in which the President said, “This is further proof that al-Qaeda and its affiliates will find no safe haven anywhere in the world.”  And the WP’s Peter Finn reporting on the secret DOJ memo approving the targeting.  David Ignatius, drawing on his deep contacts in the US intel community, adds a valuable summary of the internal view of drone targeting policy.  The one comment I would make to this summary concerns the law versus policy of who the administration believes it can target in Yemen or elsewhere among AQ associated forces such as AQAP.  John Brennan’s Harvard speech seems to indicate (with respect to the Koh-Johnson debate that Charlie Savage has reported in the Times) that although the administration sides with Johnson as to the ultimate legal view of who it could target within associated forces, in policy terms it is today following the Koh view and targeting only those believed to offer a threat against the US. Here is the WSJ’s editorial today, which touches indirectly on the Koh-Johnson debate; also the Washington Post’s editorial today.  And an NPR program (at this link) that featured John Bellinger and a brief quote from me.

I hesitated to put more up on this topic, having just delivered a stern lecture about how the decade of national security law is So Over and we need to get on to economic law issues … embarrassing when events intervene.  I really do intend to start blogging much more about economic law, governance, and non-terrorism issues.

http://opiniojuris.org/2011/09/30/anwar-al-aulaqi-killed-in-drone-strike-in-yemen/

16 Responses

  1. Response…
    Quite.  Yet, lets recall that there is no immunity merely because a direct participant in armed attacks (DPAA) is a U.S. national.  The Constitution applies abroad, but he had the process that was due one who was not captured or in “effective control” of the U.S. and who was targetable under the self-defense paradigm (under Article 51 of the U.N. Charter), whether or not the U.S. is at “war” with al Qaeda (cannot be as a matter of traditional international law).  Furthermore, human rights law applies without geographic limits, but who does it apply to?  To a person in the “effective control” of the U.S. (not him).  And what is the human right to life?  A right to freedom from “arbitrary” killing, and the U.S. targeting of him was not arbitrary.

  2. Prof. Anderson has stated elsewhere that he thinks mere “incitement” by U.S. citizens abroad, without any operational participation in terrorist activity, would justify their killing under similar circumstances to the present case.

    I am curious whether the laws of war speak to the propriety of killing a civilian who simply writes something in support of the enemy.

  3. Response…
    Yes, for example, Geneva Protocol I, art. 51(3) (“Civilians shall enjoy the protection afforded by this section unless and for such time as they take a direct part in hostilities”)–when they do, they are DPH and are targetable.  The U.S. Exec. has argued that he became part of the operational team, more than a propagandist and one who might have incited violence.  I think that people might disagree whether “incitement” is “direct participation in hostilities” as such, i.e., DPH.

  4. Thank you, Jordan. If incitement were “direct,” I would find it difficult to imagine what could be “indirect.”

  5. That is the heart of if – whether he was DPH.  The US Exec argues many things and at different epochs there have been cases in which US citizens in the US or overseas have been targeted and killed by the US (Black Panthers in the US; it is alleged Richard Wright in Paris) for reason that appear more related to raison d’etat then reason.  His death does remind Americans that our government is ready, willing and able to kill you if it perceives you as DPH, whether you are or not in some existential sense, and wherever you are in the world.  And, if it turns out afterward that the government was wrong, the ambient approach is to say “mistakes were made” with no accountability permitted through private suit by one’s heirs or criminal prosecution of officials for murder by the federal government.  At least up to now.
    Best,
    Ben

  6. An interesing case is Samir Khan who was also killed.  If he was not DPH while Al-Awlaki is, then Khan’s targeting would appear improper but his death as collateral to Al-Awlaki would be justified as collateral damage (necessity, proportionality, disctinction analysis).  I doubt folks are losing much sleep over these kinds of fine points.  Mary Ellen O’Connell’s emphasis on the lethality of these weapons comes back to me at these times when all is made to appear to be “anitseptic.”  I imagine the scene is horrific.  We must all remember as Americans that these things are being done in our name.  Sometimes I wonder if we appear to be a bit anesthetized to that fact.
    Best,
    Ben

  7. If Bush had done this the usual suspects would be up in arms and calling him a fascist. But since it’s Obama . . . 

    Anyway, ye reap what ye sow. Get rid of the detention regime crafted by the White House and Congress and the logical outcome was always going to be kill-rather-than-capture. Why pretend to wring your hands over things being ‘antiseptic’ now?

  8. Response…  I’m so tired about the “look at those Obama loving hypocrites” line, especially given the amount of criticism coming from the left on this issue.  It’s so old.

    Also, the idea was not to END detention, but to make sure there were actual rules with safeguards.  The people detained by Bush were not detained out of some desire to protect them from being killed but largely to get information.  At some point, that gets less useful.  Bush would probably be using drones more too.

    The rules didn’t make things worse or anything in that regard.
     
     

  9. Hard not to read the “unwilling or unable” and the “no safe haven” comments” as anything other than the same as “with us or against us,” no?  (Since those original comments were directed at Pakistan, and for good reasons.)

  10. Response…

    “I am curious whether the laws of war speak to the propriety of killing a civilian who simply writes something in support of the enemy.”

    Indeed. And what if, as Obama has done, is identify those Americans who oppose him as the “enemy”?

  11. This guy was an American citizen only because of a completely erroneous reading, fostered by the left, of the 14th Ammendment.

  12. “the US government has been very careful to rely not upon “internet preacher shooting his mouth off,” but instead on distinct operational roles.”

    - and here’s the problem: the US government has not been forthcoming with any specifics of his operational roles, if such actually existed.

    “at some point, advocacy and incitement in the context of actual people doing actual things, even if the preacher is off in Yemen talking over the internet, is enough”

    - just to make sure: are those the same things said by a professor of an American university will not get him even fired, let alone arrested or killed, or are they different? In other words, how is the speech of an American citizen in Yemen less protected than a speech of an American citizen in Berkley? And conversely, what does a professor of an American university have to say to be arrested, prosecuted and convicted?

  13. Your position rests to a large extent upon the idea that al-Awlaki had put himself beyond the reach of US justice; that in fact he could not have been arrested or extradited. But surely this is irrelevant unless he was potentially subject to arrest. Was there an arrest warrant out for him? My understanding is that there wasn’t: that there was really no point at which there could have been any judicial oversight.

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