Did International Law Motivate the “Capture-if-Feasible” Element of the Al-Awlaki/Aulaqi Legal Opinion?

by John C. Dehn

Well…maybe not international law directly…but I thought that headline potentially captivating and not misleading. I apologize for a guest post during this excellent Harvard symposium, but Newsweek reports that the Obama administration is finally going to reveal a bit more about its legal authority to target and kill US. citizens (in armed conflict or national self-defense) without a prior judicial adjudication. After a prolonged internal debate, reportedly pitting the State and Defense Departments’ head lawyers against others on the President’s national security team, the Attorney General may soon provide details in a public statement. The time and place of that statement is still unclear or undetermined. It also seems unlikely that the AG will address any specific operations or cases.

To this point, the only clues we have about the legal opinion supporting the targeting of U.S. citizens were leaked to the New York Times by someone who had allegedly read the supporting opinion of the Office of Legal Counsel. The reported details of that OLC opinion largely tracked my analysis in a debate with Kevin solicited and published by PENNumbra, Penn. Law Review’s online journal. They need not be repeated in detail here.

The difference between my analysis and the opinion, as reported, were the opinion’s requirements that a U.S. citizen being targeted must present an ongoing imminent threat and be captured, not killed, if feasible. John Yoo responded to the leaked description of the opinion with this critique:

“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.”

It is very likely that the opinion pins the “capture-if-feasible” requirement on the unreasonable seizure provisions of the Fourth Amendment and/or the Due Process Clause of the Fifth Amendment. (There are other constitutional issues, largely addressed in an excellent article by Ryan Alford (Ave Maria) and a related symposium/debate we and others had at CATO – Unbound.) But the reason it did so may relate to the alternate, “self-defense” basis for the attack. Allow me to quickly explain.

As the OLC opinion (and I, and many others) have concluded, a U.S. citizen who has joined an enemy armed force in armed conflict with the U.S. may be captured and indefinitely detained or killed, so long as the capture, detention or lethal targeting complies with the laws of war. Numerous Supreme Court (SCOTUS) opinions, and the complete history of the Civil War, support this conclusion.

The key to the exercise of this power, though, is what I have elsewhere (unpublished) called a “constitutionally adequate” determination of enemy status of the type that SCOTUS required in Hamdi and Boumediene. It requires both the existence of an armed conflict and a reasonable identification of an individual as one subject to potentially lethal (capture or kill) targeting order. While SCOTUS has not shied away from supporting the executive’s identification of certain individuals as enemies subject to war measures, its bases for doing so have varied, and there has often been little real factual dispute – at least until 9/11 and the post-Boumediene habeas litigation. I suspect this lack of clarity may play a role in the OLC’s al-Awlaki opinion. It is also, in part, why I believe after-the-fact judicial review of potentially lethal targeting orders involving citizens is essential.

But let’s think more broadly about the administration’s rationale for targeted killing, including that of al-Awlaki. Harold Koh has stated, once here at OJ, that the administration’s approach to targeted killing is justified either by lawful acts of war against enemies in armed conflict with the United States, or by independent acts of national self-defense. The administration also argued these separate bases for the (unacknowledged) targeting of al-Awlaki in the case brought by al-Awlaki’s father.  Ken, I and others discussed what Ken has called the “naked self-defense” theory and its implications here. In short, if the U.S. is to engage in self-defense outside the scope of an existing armed conflict and without creating a new armed conflict, the international legal framework is unclear. Some argue that international human rights law governs the attack, others the laws of war or the laws of war by analogy. That ambiguity hardly supplies the sort of clarity one would prefer in matters of constitutional importance. (It also raises somewhat alarming questions about the extent to which such authority might be claimed within the territory of the U.S.) Thus, it may be the case that ambiguity in the international law surrounding “naked self-defense” motivated the OLC opinion’s authors to apply constitutional protections that, I have here argued based on SCOTUS precedent, generally do not apply to enemies of the U.S. in armed conflict, including citizen-enemies.

We might then question why the alternate theory would be asserted at all. Well, it isn’t necessarily easy to place Al-Qaeda in the Arabian Peninsula (AQAP), which formed well after 9/11, into the precise terms of the post-9/11 AUMF, authorizing the President to use military force against those he determines, “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” Or, it may be that any claimed “operational links” between AQAP and “Al-Qaeda central” do not clearly establish their participation in the armed conflict between the U.S. and the latter, rather than merely independent acts of violence with similar ideological motivation. We may soon find out, or we may not get enough information to sort this one out.

http://opiniojuris.org/2012/01/23/did-international-law-motivate-the-%e2%80%9ccapture-if-feasible%e2%80%9d-element-of-the-al-awlakiaulaqi-legal-opinion/

10 Responses

  1. We will see what they say. One thing though is whatever the legal analysis whether Al-Awlaki met the standard or whether this is murder.  I say that because Former Acting General Counsel of the CIA Rizzo referred to some of these occasions as murder in a recent interview I referred to in this oped at SALTLAW/Blog entitled “Bringing Light to Dark Matter: Drones, Torture and Illegal Wars” available at http://www.saltlaw.org/blog/2011/07/20/bringing-light-to-dark-matter-drones-torture-illegal-wars/

    The apology to the family of Mr. Khan who is another American who was killed in that Al-Awlaki strike may be further evidence as to the view of the legal space that the administration holds.

    Note Glenn Greenwald today also – America Can Kill You and Not Explain Why or Western Justice and Transparency – http://www.salon.com/2012/01/23/western_justice_and_transparency/

    One feels a machine accelerating in the military commissions and these drone killings right now in the sense of a state starting to get ahead of its fundamental values in the interest of political and electoral expediency.  I guess that is almost the definition of the famous state of exception.  Would that those in the government would step back like an Alberto Mora or a William Taft and slow this horse down.

    Best,
    Ben

  2. Response…
    With great respect Ben, mnay here have addressed similar claims here before and I am one who has claimed that self-defense targetings outside the context of a real war (we can’t be at awar with al Qaeda as such under traditional international law) can be permissible, even per the Constitution.  Thus, I am at least in partial agreement with Harold Koh, and have cited his remarks in my 19 J. of Transnat’l L. & Pol’y article and 39 Denver J. Int’l L. & Pol’y article. 
    Ben Davis relying on Rizzo must be a first!

  3. “In short, if the US is to engage in self-defense outside the scope of an existing armed conflict and without creating a new armed conflict, the international legal framework is unclear”

    I must respectfully but wholeheartedly disagree. The key words you mention: “without creating a new armed conflict” make the governing legal framework exceedingly clear: without an armed conflict, IHL does not apply. There cannot be a governing war/armed conflict paradigm without an armed conflict and therefore a IHRL paradigm would govern.

    The “naked self-defense” rationale stands on shaky legal ground at best, evidenced by Anderson’s own words:  “the possibility that there might be instances in which the United States would engage in uses of force under self-defense that would not necessarily be part of an armed conflict in a technical legal sense”…again, outside of armed conflict, IHL does not apply. Furthermore, rationalizing its invocation based on the unable/unwilling status of a harboring state is also legally untenable, as pointed out by Prof. Heller here: http://opiniojuris.org/2011/12/15/ashley-deeks-failure-to-defend-the-unwilling-or-unable-test/

    I fail to see legally sound reasoning to defend the stance that IHL can apply to situations outside of armed conflict, and I await the administration’s explanation/justification of Al-Awlaki’s killing with hopes that they will provide more clarity.

  4. Jessica, thanks for your thoughtful comment.

    I have mixed views on the topic, but encourage you to read the balanced and objective scholarship of others.  Saying that IHL does not apply does not necessarily establish what law does apply.  There are some who suggest that the intensity/magnitude of the threat posed by a non-state actor might be sufficient (absent other factors of duration, organization, etc.) to justify the application (or analogous application) of IHL to responsive uses of force. 

    Your comment takes us back to a discussion we recently had here on OJ about whether there are legal lacunae in international law.  Many assume that international human rights law (IHRL) fills any void in the application of IHL.  That view is not fully supported by the language of relevant treaties or, it seems, actual state practice.  Again, reasonable minds may differ, and it is best to keep an open mind.  Having a sound theoretical reason for filling lacunae with a given body of law (either IHL or IHRL) is not the same as establishing that it applies by resort to the actual sources of that law.  Because the relevant treaties don’t fully resolve the issue, I think state practice is extremely relevant to the IHL/IHRL complementarity issue.

    Finally, the Deeks article (and my comments in the post that you linked) only dicusses the unable or unwilling doctrine in the context of the jus ad bellum.  It does not address the law governing the means and methods of an attack.  Others who have posted here at OJ have suggested that IHL does apply to so-called “naked self defense,” either by state practice or in the view of the U.S. government.  I don’t have a firm view on the topic, nor do I know the U.S. government’s actual position.

    From what I have read, it seems that what might be going on is that the U.S. takes a more relaxed view of the imminence requirement for a responsive use of force outside of armed conflict after a non-state actor has actually engaged in an armed attack.  However, that would not necessarily justify collateral death and destruction of civilians and civilian objects (which seems to frequently occur).  Thus, perhaps the U.S. view is that once there has been an armed attack by a non-state actor, IHL, or the basic principles of IHL (necessity, distinction, propotionailty, etc.) governs any responsive use of force.

  5. Response…
    Jessica: you are correct that if there is not an armed conflict then the laws of war do not apply.  The U.S. precent view, in error, is that the U.S. is at war with al Qaeda.  This is not possible under traditional international law for several reasons and it is not possible even if one tries to use a newer preference of some from the Tadic case in the ICTY (but note the limits in subsequent cases).  I presented a paper on this at the annual meeting of the Am. Branch of the Int’l Law Assoc. in NY last Oct., which will be up on-line later and printed in the ILSA J. even later.
    And you are correct that human rights law applies, but as noted in other posts (see, e.g. some below) the next question is WHO has WHAT human right in what context.
    Yet, there is a third paradigm — the self-defense paradigm — and the U.S. has already stated that it is an alternative paradigm and that the U.S. can justify the targeting of Anwar AA in Yemen alternatively as a matter of self-defense — something that I also addessed in my paper in NY and that will be in the ILSA J. article.
    More generally on the self-defense and human rights paradigms, please see (free downloads) http://ssrn.com/abstract=1520717
    and  http://ssrn.com/abstract=1718548
    With respect to human rights, please do not forget that a member-state’s obligation to respect and observe human rights is “universal” under Articles 55(c) and 56 of the U.N. Charter, that it trumps any inconsistent international agreement obligations, etc. under Article 103, and that there are no geographic or contextual limitations of this treaty-based duty of all members of the United Nations (and, therefore, that human rights obligations apply abroad and during war!!).

  6. Response…
    Concerning the reach of human rights law during war and related issues, please note:
     
         A draft of my paper for the Feb. 2th symposium at Barry University School of Law in Orlando, FL is available for a free download at SSRN, at
    http://ssrn.com/abstract=1989099
         I am on the Torture and Accountability panel and the title of my draft paper is: The Bush-Cheney Legacy: Serial Torture and Forced Disappearance in Manifest Violation of Global Human Rights Law.
    An abstract states:
                        This draft article focuses on nine false claims made during the Bush-Cheney Administration in an attempt to further an admitted “program” of “tough” interrogation tactics and secret detention that has actually served as a catalyst for reaffirmation of fundamental human rights and basic human protections under the laws of war.  The article also identifies why there is a global reach of human rights law and obligations under the United Nations Charter, the International Covenant on Civil and Political Rights, and the Convention Against Torture.  The article also provides an Appendix that sets forth a Torture Timeline 2001 – 2007 and addresses standards for criminal complicity that would be applicable concerning criminal or civil sanctions against members of the prior Administration who are clearly reasonably accused.
     
         [forthcoming, 18 Barry L. Rev. (2013)]
    The Bush-Cheney Legacy: Serial Torture and Forced Disappearance
    in Manifest Violation of Global Human Rights Law
     
                                                                            – Jordan J. Paust
    Introduction
       I.  Rejection of Nine False Bush-Cheney Claims
       II.  The Global Reach of Human Rights Law
                A.  Global Reach Under the United Nations Charter
                B.  Global Reach Under the International Covenant on Civil and Political Rights
                C.  Global Reach Under the Convention Against Torture
       III.  Relative and Absolute Human Rights of Persons
       IV.  Deleterious Consequences of the Unlawful Program
    Conclusion
    Appendix: Torture Timeline September 2001 – 2007
     
     
     

  7. You certainly won’t find me disagreeing about the comprehensive illegality of torture, Jordan.  However, one doesn’t need to accept that all human rights are global to believe that some, like the proscription of torture, are.

  8. There are some who suggest that the intensity/magnitude of the threat posed by a non-state actor might be sufficient (absent other factors of duration, organization, etc.) to justify the application (or analogous application) of IHL to responsive uses of force.

    Who?  Any non-Americans?

  9. Thank you very much for the responses, gentlemen. I have been doing my best to try to read balanced and objective scholarship on this particular issue, but I still have not come across solid legal reasoning to support the idea that IHL can apply outside of armed conflict (AC). On a related note, I share Professor Heller’s question of who might currently be advancing the view that threats by NSAs can be met with IHL-governed uses of force outside of AC. 

    My comment referred to the idea that in the absence of AC, and therefore the absence of IHL as the guiding legal framework, you must turn elsewhere (e.g., IHRL/law enforcement framework). it was not to suggest that when IHL is silent, IHRL fills the gaps in AC.

    The recent discussion on OJ/Lieber Code, if we’re referring to the same one, dealt largely with the interplay of IHL/IHRL within an AC and my suggestion in this instance based on the scenario you set (a state engaging in self-defense outside an existing AC and without creating a new AC) is that IHL would not even be an option because there is no AC. This distinction is crucial when discussing targeted killings and other ways states address terrorism and terrorist threats.
    I look forward to continued discussion!

  10. Jessica,

    The presumption that IHRL in all its particulars applies if IHL does not is problematic, to my mind, because IHRL has a limited scope of application, and an unclear scope of extraterritorial application.  It related to the earlier discussioni on the point of legal lancunae in international law.  State practice on these points seems to be inconclusive.  As for the range of the debate regarding armed attacks by non-state actors and relevant legal frameworks, I believe Lubell surveys the range of opinion pretty well.  I have my own thoughts,  but when I will have time to write them down is anybody’s guess.

    Great to have you in the discussion!

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