John Yoo Gives Partial Endorsement for Awlaki Memo

by Julian Ku

John Yoo, not surprisingly, has some thoughts on the leaked secret memo on Awlaki.(sorry forgot to link his full post earlier).

Let’s give partial credit where it is due.  Apparently the Obama administration argues that al-Awlaki was a legitimate target because he is a member of an enemy engaged in hostile conduct against the United States.  At least Obama has figured out that the war on terrorism is in fact a war, and that it is not limited just to Afghanistan.  We should be thankful that Obama officials have quietly put aside the arguments they made during the Bush years that any terrorist outside the Afghani battlefield was a criminal suspect who deserved his day in federal court.  By my lights, I would rather the Obama folks be hypocrites in favor of protecting the national security than principled fools (which they are free to be in the faculty lounges both before and after their time in government).

But the administration’s former worldview of terrorism still infects their decisions, to the country’s detriment.  According to the reports, the Obama administration believes that force could only be used against al-Awlaki because arrest was impractical and al-Awlaki posed an imminent threat of harm to the United States.  This is plainly wrong.  It may make for good policy, especially toward American citizens who make the mistake of joining the enemy, but there is no legal reason why a nation at war must try to apprehend an enemy instead of shooting at him first.  Every member of the enemy armed forces and leadership is a legitimate target in wartime, regardless of whether they can be caught or whether they pose an imminent threat.  In fact, the Obama administration continues to confuse war with crime — the idea that you must try to arrest first and can only use force against an imminent attack is the standard that applies to the police, not the military.

7 Responses

  1. Response…
    As much as it pains me to agree with John Yoo, he’s clearly right about one point here: the NYT leaks do not clarify whether or not the Obama Administration clarifies the conflict with AQAP, AQ, other AQ-affiliates as a IAC, a NIAC or international law enforcement. It is high time that they did, as this would allow a fuller understanding of the targeting rules they are employing, and would actually substantially increase the opportunity for broader international support.

  2. Response…
    Of course, it is not possible under international law to be in an armed conflict of any sort merely with al Qaeda.  The memo should have addressed the permissibility of U.N. 51 self-defense targetings of those who directly participate in ongoing armed attacks.  See prior posts here re: al Qaeda does not have the semblance of a government, does not field military units in sustained hostilities, does not have orgainzed armed groups outside the theatre of a real war in Afghanistan and parts of Pakistan, does not control terriroty as its own, does not enage in protracted military operations, etc.

  3. To webmaster: delete the darn “Response…” text from this comm. box.
    Toby: no need to agree with John Yoo. He doesn’t care what the Obama admin is calling it, he states that he’s right that it’s a IAC – encompassing the entire globe and covering anyone who has any connection at all with any group that sticks “al-Qaeda” in their name.
    Jordan: Did you say “international law”? Yoo doesn’t think it matters.
    Julian: Did Yoo email you this response? If not, what’s the source? If so, ask him if he still believes this:
    “On a series of different international relations matters, such as war, international institutions, and treaties, President Clinton has accelerated the disturbing trends in foreign policy that undermine notions of democratic accountability and respect for the rule of law.”

  4. Got the source.

  5. Mark, thanks.
    Not being an American-trained lawyer, I’d appreciate being pointed to a detailed analysis on the US domestic legal concerns. From the outside, the notion that by electing to be a combatant against the US in an IAC or direct participation in a NIAC makes you a legitimate target irrespective of your citizenship doesn’t seem too unreasonable.
    However, I appreciate the due process concerns in determining that combatant status, but this is applied to all nationalities.

  6. Response…
    Mark: I know, although from time to time he pretends to care.  Perhaps he is trying to pull a Cheney.  Cheney’s apology from Obama never came [and never will], however, because Cheney is beyond a reasonable doubt reasonably accused of aiding and abetting war crimes (torture, cruel, inhuman, and degrading treatment) and crimes against humanity (secret detention).  John Yoo noted in his book War By Other Means that there was an inner circile that chose to ignore the Geneva law requirements in order to authorize coercive interrogation. Obama’s lawful targetings under UN art. 51 and/or relevant laws of war with respect to DPH persons in the real war in Afghanistan and parts of Pakistan are, to say the least, quite different.

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