As all major news outlets have now reported, the U.S. carried out two armed raids overseas late last week: one in Tripoli that resulted in the successful capture of suspected core Al Qaeda leader Abu Anas al-Liby, and another in Somalia apparently aimed at a leader of militant Somali group Al Shabaab. Both raise complex questions of U.S. and international law. Here’s a quick first take. Bottom line: Both are probably justifiable under domestic law, but pending some facts, the Al Liby seizure may be deeply problematic under international law.
Al-Liby has been under indictment in the U.S. since 2000 for his suspected role in helping to plan the U.S. embassy bombings in Kenya and Tanzania back in 1998. The indictment, available here, alleges his involvement in the conspiracy (and his participation in Al Qaeda) dates as far back as 1993. The AUMF authorizes the use of force against any organization the President determines responsible for the attacks of 9/11. Core al Qaeda is that organization; al Liby seems by all accounts to have been a central part of it. Assuming the United States moves with reasonable speed to bring al Liby here to stand trial on his criminal indictment, the Supreme Court has been (remarkably but consistently) clear that trial may proceed even if the defendant was effectively kidnapped to bring him here.
On the international law side, it’s trickier. The theory that there is an ongoing non-international armed conflict between the United States and Al Qaeda has never found acceptance outside the United States. Still, the United States has a powerful argument that the attack on its embassies was an “armed attack” within the meaning of UN Charter, art. 51, triggering a U.S. right to resort to military force in self-defense. In this respect, the decision to capture al Liby (and the operation directed in an apparently quite targeted way against him) looks like a quite proportional response. This nonetheless leaves two potentially significant international law problems: (1) If the United States actually lacked Libyan consent to the operation (as Libya seems, at least publicly, to maintain), the United States violated Libyan territorial integrity in carrying out the operation, a breach of UN Charter, art. 2(4). (2) Most scholars recognize an international law requirement that responses in self defense be timely. Whether one sees this as a necessary reading of art. 51 itself (recognizing a right of self defense only until the UN Security Council has had time to act), or a function of customary international law or both, the idea is that while states are certainly permitted some reasonable amount of time to determine an appropriate response and carry it out, a one-time attack doesn’t give a state a right to respond with armed force against the attacker for the rest of geopolitical time. Perhaps under the circumstances here the extraordinary delay is reasonable – it took a long time to find al Liby, and once we did perhaps we first pursued more peaceful efforts to extradite him to the United States. Perhaps. Another set of facts it would be helpful to know. In the meantime, the general question remains: how long could the U.S. plausibly use attacks from 1998, or even 2001, to justify new “self-defense”-related uses of force?
The attack in Somalia is a tougher case domestically. Al Shabaab, born well after 9/11 as a domestic Somali insurgency of sorts, and only recently (and to an indeterminate degree) allied with whatever remains of what is now called Al Qaeda, is not nearly as obviously covered by the AUMF. Does the President have inherent authority under Article II of the Constitution to use armed force in such circumstances? The vast majority of constitutional law scholars recognize the President has at least some right to use force without congressional authorization if he is acting in national self-defense. Here, the New York Times reports the Somalia raid was planned after the attack by al Shabaab at a shopping mall in Nairobi, Kenya, that killed more than 60 people two weeks ago. A handful of American nationals were injured in that attack. Of relevance here is what appears to be the emergent custom in international law to permit limited, proportional uses of force to protect a nation’s citizens under attack abroad. If one embraces the view that the President’s powers under Article II of the Constitution should be at least co-extensive with that force authorized under international law, then the President here might be on reasonable ground. The mere permissibility of a use of force under international law has never been thought to be a substitute for affirmative authority under domestic law. But imagine if the al Shabaab attack in Kenya were still underway; assuming the permission of the Kenyan government, there would seem little doubt the President would have inherent Art. II power to use force in the interest of protecting the U.S. nationals threatened in the attack. Does the brief passage of time here make a difference from this perspective, assuming the U.S. attack was the limited, one-off response it appears to be? Not clear that it does.
For these reasons, the attack on Al Shabaab may be quite a bit easier to justify under international law than is the seizure of al Liby. The issue of Somali consent remains – and it is here likewise unclear what Somalia permitted or not. But given the relative silence so far from the Somalia government, such as it is, it may be they were willing to have the U.S. there.