OLC Memo Redux – The Bigger Picture

by Deborah Pearlstein

So did we learn anything new from the redacted OLC memorandum we didn’t already know from the earlier White Paper, Administration fact sheet, official speeches, testimony, and media leaks about the nature of the Administration’s legal theory supporting lethal targeting? Yes, several things, with important implications for operations going forward. The newly released memo has some key deficits (see, e.g., my criticism of its constitutional analysis), and as Kevin’s post notes, will not satisfy those (i.e. everyone except the United States) who reject the legal concept of a non-international/transnational armed conflict between the United States and Al Qaeda. But the analysis is detailed enough in this iteration to accomplish something the White Paper, etc. in important ways did not: identifying key legal limits on the scope of U.S. targeting authority.

Take the source-of-authority example. The earlier White Paper was remarkably successful in fudging whether the Administration was invoking the President’s Article II self-defense power under the Constitution, or the statutory AUMF, to support targeting operations. The White Paper likewise (notoriously) fudged whether it was invoking a UN Charter-based self-defense justification under international law (in which case concerns of imminence would be centrally relevant), or whether the United States believed itself in an armed conflict with AQAP such that the law of armed conflict applied (including limitations on who may be targetable). This memo is clear: the AUMF is the domestic source of legal authority, at least for the U.S. military, and the international law of armed conflict (LOAC) applies to constrain U.S. operations against AQAP. (While there is much redacted in the memo’s analysis of the nature of the CIA’s authority, it is certainly the case that the applicability of the “public authority” exception to the coverage of domestic murder statutes turns on a question of domestic, rather than international law. Here, even if the AUMF was not meant to authorize the CIA to do anything, the CIA has broad authority under Title 50 of the U.S. Code to engage in operations overseas, provided it has relevant Presidential approval and complies with requirements of congressional notification. In other words, I can imagine a straightforward explanation for why such an exception would apply to the CIA as well. That it is not evident from the memo is, I suspect, far more a function of redaction than absence of legal authority.)

The significance of the memo’s relative clarity (relative to the White Paper) is not that it forecloses the possibility that the Administration might carry out other targeting operations that are based solely on the President’s Article II self-defense power, drawing on its broad understanding of ‘imminence’ under international self-defense law; the memo is repeatedly at pains to limit its analysis to the particular circumstances of Awlaki’s case and foreclose nothing about the import of the law in other circumstances that might arise. Rather, the recognition that these bodies of law in such circumstances apply – and the analysis that accompanies that recognition – carries with it several implications for future operations.

For instance, as the memo acknowledges (citing relevant international law precedent), not every kind of violent clash rises to the level of a non-international armed conflict. The non-state party to the conflict must possess a sufficient level of organization (including an identifiable command structure) to count as a meaningful “party” to a conflict. AQAP, the memo concludes, is such a party. But for the same reason, the necessary implication of the memo’s reasoning is that a scattered set of vaguely sympathetic, violent bands of terrorists may well not rise to the level of a party to an armed conflict. More, the memo recognizes, there must be a certain level of ongoing violence between the parties – such that it is possible to distinguish between a circumstance in which the dramatic law of armed conflict is triggered, and a circumstance of sporadic violence by a criminal or terrorist group against a state in which ordinary criminal and human rights laws apply. In the memo, the existence of ongoing violence between the United States and Al Qaeda in Afghanistan (circa 2010 when the memo was drafted) seems central to its conclusion that the level of sustained violence between the groups remained high enough to meet the armed conflict threshold. By the same token, assuming U.S. combat troops withdraw from Afghanistan in the near term, that associated violence between the warring groups correspondingly drops there, and that Al Qaeda and the Taliban remain as relatively unsuccessful as they have been in recent years in carrying out attacks against the United States outside Afghanistan – this shift in the facts on the ground will have an important impact on the Administration’s continued ability to assert the applicability of LOAC. Put differently, when we leave Afghanistan, if violence drops as anticipated, LOAC-based domestic laws authorizing the use of force will run out.

Here’s another example. The memo – unlike the White Paper – directly engages the question who is targetable in LOAC. The White Paper made no mention of any LOAC targeting rules that limit Administration target selection, such as the rule that says civilians are not targetable “unless and for such time as they take a direct part in hostilities” (DPH) (AP II, art. 13). It likewise made no mention of the ICRC’s more recent guidance that in non-international armed conflicts, individuals who play a “continuous combat function” (CCF) are also targetable. Here, the memo appears squarely to embrace the CCF concept, quoting it directly: “’individuals whose continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities are assuming a continuous combat function,’ in which case they can be deemed to be members of a non-state armed group subject to continuous targeting.” CCF undoubtedly permits a broader range of targets in non-international armed conflict than had been permitted under the more limited DPH standard. But it is a standard – as opposed to no standard – nonetheless. One can serve a CCF if one is typically involved in the “preparation, execution, or command of acts or operations amounting to direct participation in hostilities,” but not if one’s function, however “continuous,” is, for example, the financing of (or in other respects materially supporting) terrorist operations, which the ICRC does not count as “direct participation.”

Will/does the Administration always comply with these rules? What does the Administration think the scope of its targeting authority outside Awlaki’s case? These are among the still many questions unsurprisingly unanswered by the memo itself. But the identification of any legal standards is better than the preceding years of relative silence. We now have a better sense of the law as the Administration itself conceives it. If the Administration now fails to abide by the necessary implications of the applicability of these rules, we will be able to say, as definitively as the facts permit, its actions violate the law.


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