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

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.