Archive of posts for category
Middle East

Panel at George Mason on the ICC and Palestine

by Kevin Jon Heller

I will be participating next week in what should be an excellent event at George Mason University on the ICC and Palestine. The other participants are all excellent — David Luban, Meg DeGuzman, George Bisharat, and the organizer, Noura Erakat. Here is the flyer:


I hope at least some Opinio Juris readers will be able to attend and hear my dire prognostications in person. (If you do, make sure to come say hello.) The event will be live-streamed for those that do not live nearby.

Does the Collective Self-Defense Justification Extend to Khorasan? If Not, Then Is There One?

by Julian Ku

I agree with Jens’ excellent post on the importance of the “unwilling or unable” standard to the US justification for legal strikes on non-state actors in Syria.  I agree this action may reveal state practice supporting (or rejecting) this legal justification.  I am curious whether the UK, France, or other states that may be participating in Syria strikes will embrace this theory. (I already know the Russians have roundly rejected this US justification). I also wonder whether this legal justification will weaken, as a policy matter, the ability of the US to effectively attack ISIS.

I do have one additional observation. Tacked on, almost as an afterthought, Ambassador Power’s letter notes that:

In addition, the United States has initiated military actions against al-Qaida elements in Syria known as the Khorasan Group to address terrorist threats that they pose to the United States and our partners and allies.”

The vague wording of the letter about Khorasan (threats to “the United States and our partners and allies”) as compared to the pretty specific language about ISIS’s attacks on Iraq  (“ to end the continuing attacks on Iraq, to protect Iraqi citizens, “) suggests that Khorasan is not currently engaged in armed attacks on Iraq.  This means that the U.S. is making a much broader international law claim than for its attacks on ISIS.  The U.S. is attacking Khorasan because, like Al Qaeda, it is a terrorist threat to the U.S. itself.  But no actual armed attacks have yet occurred (as far as I know).

It is therefore worth noting whether more  states object to the attacks on Khorasan than on ISIS, because the Khorasan attacks have a weaker international legal justification. My guess is that objecting states like Russia will not bother distinguishing between the two. But it will be interesting to see whether US allies will refuse to join strikes on Khorasan, even if they are willing to strike ISIS in Syria.

The Unwilling or Unable Doctrine Comes to Life

by Jens David Ohlin

Today the U.S. launched airstrikes against ISIS and other extremist groups within Syrian territory. In the past, airstrikes were limited to Iraqi territory, which came with the consent of the Iraq government (and were thus legally uncontroversial from the perspective of jus ad bellum). Today’s airstrikes require a sophisticated legal argument to explain the intrusion on Syria’s territorial sovereignty. Samantha Power’s letter to the United Nations indicates that the Obama administration is relying on a combination of Article 51 of the U.N. Charter and the “unwilling or unable” standard:

September 23, 2014


In Iraq’s letter to the United Nations Security Council of September 20, 2014, and other statements made by Iraq, including its letter to the United Nations Security Council of June 25, 2014, Iraq has made clear that it is facing a serious threat of continuing attacks from ISIL coming out of safe havens in Syria. These safe havens are used by ISIL for training, planning, financing, and carrying out attacks across Iraqi borders and against Iraq’s people. For these reasons, the Government of Iraq has asked that the United States lead international efforts to strike ISIL sites and military strongholds in Syria in order to end the continuing attacks on Iraq, to protect Iraqi citizens, and ultimately to enable and arm Iraqi forces to perform their task of regaining control of the Iraqi borders.

ISIL and other terrorist groups in Syria are a threat not only to Iraq, but also to many other counties, including the United States and our partners in the region and beyond. States must be able to defend themselves, in accordance with the inherent right of individual and collective self-defense, as reflected in Article 51 if the UN Charter, when, as is the case here, the government of the State where the threat is located is unwilling or unable to prevent the use of its territory for such attacks. The Syrian regime has shown that it cannot and will not confront these safe-havens effectively itself. Accordingly, the United States has initiated necessary and proportionate military actions in Syria in order to eliminate the ongoing ISIL threat to Iraq, including by protecting Iraqi citizens from further attacks and by enabling Iraqi forces to regain control of Iraq’s borders. In addition, the United States has initiated military actions against al-Qaida elements in Syria known as the Khorasan Group to address terrorist threats that they pose to the United States and our partners and allies.

I request that you circulate this letter as a document of the Security Council.

Samantha J. Power

His Excellency
Mr. Ban Ki-moon
Secretary-General of the United Nations
New York, NY

So the structure of the argument goes as follows. The right of response is originally Iraqi, and the U.S. right of intervention is parasitic upon the Iraqi claim. Iraq has been attacked by ISIS, thus triggering Iraq’s right of self-defense against ISIS. Furthermore, since Syria is apparently unable to adequately respond to the ISIS threat and prevent its forces from using Syria as a base of operations to launch attacks against Iraq, then Iraq is entitled to use military force against ISIS installations and forces in Syria, even without the consent of the Syrian government or authorization from the Security Council. In other words, this falls under the inherent right of self-defense that is carved out by Article 51 of the U.N. Charter as an exception to the general prohibition on the use of force contained in article 2 of the U.N. Charter. The U.S. is intervening militarily to vindicate Iraq’s self-defense interest as a case of individual or collective self-defense.

A few observations here:

First, this was a predictable development. I don’t see another avenue for the U.S. to legally defend the intervention, unless it wanted to rely on the even more controversial RTP doctrine, which isn’t terribly relevant here. Nor was a Security Council resolution possible (given Russian and Chinese positions on Syria).

Second, it will solidify the growing interpretation of the customary international law on self-defense as applying to attacks by non-state actors. I view this position as absolutely correct, pace the International Court of Justice and its unsupported statement that the Article 51 right of self-defense only applies to attacks by states (which is nowhere mentioned in Article 51 anyway). In addition to the Security Council resolution after the 9/11 attacks, the world community’s reaction to the armed conflict against ISIS will be highly relevant for crystallizing the correct interpretation of self-defense as applying to attacks from state and non-state actors alike.

Third, the world reaction to the conflict against ISIS in Syria will help resolve the uncertain status of the unwilling or unable standard for force against non-state actors in third-party territory. Although the status of the doctrine has in the past been in doubt, international law is very much an evolving creature, and years from now the present conflict will no doubt be an important exhibit in that debate. In other words, even if “unwilling or unable” is not the current state of the law, it may well be very soon on account of the present conflict, the U.S. legal justification for it, and the world’ community’s reaction to same.


Guest Post: Pesky Questions of International Law: What’s the basis for air strikes in Syria?

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor of Global Affairs at NYU-SPS.]

President Obama’s speech on September 10th raised many legal issues, including, whether there needs to be added Congressional authorization for the use of force, or one can utilize the pre-existing Authorization for the Use of Military Force (“AUMF”) that Congress granted after 9/11 (see Deborah Pearlstein’s post and Peter Spiro’s).  But his speech also raised profound questions at a second level – that of public international law (touched upon by Kevin Jon Heller).

This may not seize the attention of the American public, but surely coalition partners would ask these questions:  what was Obama’s basis for the legality of air strikes in Syria?

It is somewhat troubling that President Obama took the step of supporting air strikes in Syria, without articulating any clear legal foundation at the international level.  Just to be clear, the issue of air strikes in Iraq against the Islamic State in Iraq and Syria (“ISIS”) does not raise similar questions, as Iraq had earlier consented to the use of force.

There are a number of possible legal rationales for air strikes in Syria, but the U.S. needs to make the case under one of these grounds.  Such a legal foundation was not well-articulated in President Obama’s speech.  (more…)

Guest post: A Response to Kevin Heller on the Nature of Self-Defense

by Michael W. Lewis

[Michael W. Lewis is a Professor of Law at Ohio Northern University where he teaches International Law and the Law of War.] 

Kevin was right that my Just Security post misstated the legal standard for self-defense by stating that Syria could rightfully treat US attacks on ISIS on Syrian soil as aggression if the US had established that it was acting in self-defense.  As he said, such a use of force in self-defense cures any sovereignty violation that the United States might have committed.  This is, of course, how it works in theory.  Reality is somewhat different.

In practice, any state relying on the “unable or unwilling” standard (as the United States did in Pakistan to support the bin Laden raid) will have no way of knowing whether the target state will see things the same way.  By definition a state relying on the “unable or unwilling” standard lacks permission from the host/target state to use force on its territory.  This is why I said that the US would act at its own peril in Syria.  Any state taking such action will do so at its own peril because the host/target state might believe itself to be justified in using force to repel perceived aggression.   That is why the US used its most advanced and stealthiest helicopters for the bin Laden raid because they anticipated that Pakistan might react to an unannounced incursion with force.

Further, in most incidents of anticipatory self-defense (which is what any strike relying on the “unable or unwilling” standard is likely to be based upon) the host/target state claimed that the use of force on its territory was illegal and in many cases did exercise what it maintained were its sovereign rights to respond to the incursion with force.  To use the 1967 War as an example, Israel claimed that its first strike against the Egyptian Air Force was an exercise of self-defense because Egyptian, Syrian, Jordanian and Iraqi troops were massing on its borders and Egypt had closed the Straits of Tiran to Israeli shipping.  IF Israel’s claim of self-defense was valid this would cure its sovereignty violations, and the Egyptian anti-aircraft batteries would be prohibited from firing on the Israeli planes as they bombed the Egyptian airfields.  Even if theoretically international law contained such a prohibition, would any state in Egypt’s position honor it?  The answer is self-evidently, no.

The reality is that any states relying on the “unable or unwilling” standard to support a claim of self-defense will do so while anticipating and preparing for armed resistance from the host/target state.  And host/target states which have not granted permission for others to use force on their territory will assert a right to defend their sovereignty by treating such uses of force as aggression, and by responding with force if they so choose.   The host/target state’s response, though theoretically unlawful, is very likely to occur and is something that any state relying upon the “unable or unwilling” standard will both anticipate and factor in to its decision to use force.

Guest Post: Update on Israel/Palestine and the Revival of International Prize Law

by Eliav Lieblich

[Eliav Lieblich is an Assistant Professor at the Radzyner Law School, Interdisciplinary Center (IDC)]

Back in January, I wrote a guest post  about prize proceedings initiated by the Government of Israel against the Finnish vessel Estelle, intercepted by the Israeli navy while attempting to breach the Gaza blockade in late 2012. As I wrote back then, the proceedings were held before the District Court of Haifa, sitting in its capacity as the Admiralty Court of Israel. The State based its application to condemn the vessel on old pieces of British legislation, which granted prize jurisdiction to courts in Mandatory Palestine (the British Naval Prize Act of 1864 and the British Prize Act of 1939).

As I noted back in January, prize powers have never been exercised by Israel before. Moreover, prize proceedings are extremely rare globally. Indeed, since customary prize law allows belligerents to capture and condemn private vessels – both “enemy” and, in some cases, “neutral” – prize law seems at odds with contemporary human rights norms protecting private property.

In this context, my January post raised several questions for the Haifa Court. Among these, I’ve questioned the continuous relevance of prize law in the human rights era, and whether Israeli administrative law will affect the Court’s understanding of prize law. Well, the wait is over: on August 31, the Court (Judge Ron Sokol), has rendered a 33-page decision in The State of Israel v. The Vessel Estelle.

I will spare the readers from detailing the Court’s finding of jurisdiction, although doubtless interesting to legal historians: the bottom line is that it has found itself to have inherited the jurisdiction from the former British prize courts in Palestine. But the Court had some interesting things to say in terms of substantive prize law. (more…)

Mike Lewis Is Wrong About the Nature of Self-Defence

by Kevin Jon Heller

Mike Lewis has a guest post at Just Security today responding to Ryan Goodman’s recent post exploring what the US’s claimed “unwilling or unable” test for self-defence against non-state actors means in the context of Syria and ISIS. Ryan, careful scholar as always, rightly points out that the test “remains controversial under international law.” Mike doesn’t seem to have any such qualms, but that’s not what I want to respond to here. Instead, it’s important to note that Mike makes a basic error concerning how the “unwilling or unable” test functions — assuming for sake of argument it is a valid approach to self-defence under Art. 51 of the UN Charter (emphasis mine):

It is important to note that this interpretation does not give the US unlimited license to act in violation of the sovereignty of other states as some opponents of the standard claim. There are limits and dangers associated with taking such a course of action. First of all, an intervening state can only take such actions after giving the host/target state a meaningful opportunity to prevent its territory from being used by the non-state actor to launch attacks. In the case of Syria, there is no question that it is unable to control the territory under ISIS control so further delays are unnecessary. Secondly, the intervening state does so at its own peril. Syria can rightfully interpret any strikes as aggression by the US and it is justified in taking steps to prevent such attacks and to destroy the drones/aircraft conducting such attacks.

Um, no. The entire point of arguing self-defence — in any form, including pursuant to the controversial “unwilling or unable” test — is that it cures any violation of state sovereignty under Art. 2(4) of the UN Charter. So if the US attacked ISIS in Syria because Syria was unwilling or unable to prevent ISIS from using its territory as a base for attacks, the US would not violate Art. 2(4) and Syria would have no right whatsoever to act in self-defence against that armed attack. Indeed, any attempt to “prevent such attacks and to destroy the drones/aircraft conducting such attacks” would represent an act of aggression by Syria against the US, thereby opening the door to legitimate acts of self-defence against Syria itself.

Again, I don’t accept that the “unwilling or unable” test reflects current customary international law. But it’s important not to let that debate obscure how self-defence functions under Art. 51 of the UN Charter.

The 9/11 AUMF does not cover ISIS

by Jens David Ohlin

Last night I blogged about Obama’s speech that outlined the administration’s plan to contain and destroy ISIS. I noted that Obama announced his intention to ask for congressional authorization for the plan while steadfastly maintaining that he did not need this authorization. He was vague about why. In my blog last night, I presumed that he was asserting that he had authority under his Article II commander-in-chief power.

Marty Lederman notes in the comments, as well as on Just Security, that this was not a reference to an Article II argument. A senior administration official released a statement last night confirming that Obama is relying on the 9/11 AUMF as an enduring authorization that covers the new military initiative against ISIS.

I find this argument implausible. Here is the relevant text of the AUMF:

IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Since, al-Qaeda launched the 9/11 attacks, the AUMF covers al-Qaeda. It also covers organizations that planned, authorized, committed or aided the attacks, or organizations that harbored those organizations. Consequently, non-al-Qaeda organizations are covered by the AUMF insofar as they are connected to al-Qaeda in the right way.

This is a question of law application to fact, so it is necessarily a fact-dependent analysis. However, there appears to be little evidence that this link exists between ISIS and al-Qaeda. Of course, ISIS was once part of (or closely associated with al-Qaeda), and therefore at that time the AUMF arguably covered ISIS. Before its current manifestation, ISIS was considered an Iraq franchise of al-Qaeda, operating under the banner of Osama bin Laden and ostensibly subordinating itself under his operational control.

That relationship no longer exists. ISIS no longer operates under the banner of al-Qaeda, nor is it operationally subordinate to what is left of al-Qaeda core or any of the other al-Qaeda franchises. And famously, al-Qaeda effectively excommunicated ISIS for not following its central directives regarding target selection. Al-Qaeda officials correctly concluded that ISIS’s strategy was counter-productive because it alienated Muslims, and they promptly disassociated themselves from a group that was too radical even by al-Qaeda’s standards. So the operational link is broken, and has long-since been broken.

So what is the connection that the administration is asserting? They argue that

Based on ISIL’s longstanding relationship with al-Qa’ida (AQ) and Usama bin Laden; its long history of conducting, and continued desire to conduct, attacks against U.S. persons and interests, the extensive history of U.S. combat operations against ISIL dating back to the time the group first affiliated with AQ in 2004; and ISIL’s position – supported by some individual members and factions of AQ-aligned groups – that it is the true inheritor of Usama bin Laden’s legacy…

This is a weak argument. Yes, ISIS once had a relationship with al-Qaeda and Osama Bin Laden, but that prior relationship no longer governs. What matters is the current relationship. Furthermore, the fact that ISIS is the “true inheritor” of Bin Laden’s legacy is neither here nor there. In what sense is ISIS the “inheritor” of Bin Laden’s legacy? The only one I can think of is that ISIS represents the gravest Jihadist threat to the peaceful world — a position once held by Osama Bin Laden. Also, the fact that they threaten U.S. personnel and interests is an argument that proves way too much — plenty of other groups do that as well, which isn’t terribly relevant. None of this makes ISIS fit into one of the AUMF categories (planning, aiding, haboring, etc). Simply put, ISIS is not al-Qaeda.

Don’t get me wrong. I think ISIS represents the biggest threat to regional and national security since 9/11, and military force is warranted for that reason. Congress should immediately pass a new AUMF authorizing force against ISIS. I just don’t think that the original AUMF can be stretched to cover ISIS today. It’s a weak argument that sounds like a pretext to avoid making an Article II constitutional argument (which Obama presumably disfavors).

Is the AUMF Limited to the United States Armed Forces?

by Kevin Jon Heller

Bobby Chesney has responded at Lawfare to my most recent post on the CIA and the public-authority justification. It’s an excellent response from an exceedingly smart scholar. I still disagree, but Bobby’s post really hones in on the differences between us. I’ll leave it to readers to decide who has the better of the argument.

I do, however, want to discuss Bobby’s reading of the AUMF. In his view — echoing John Dehn’s comments — it is possible to read the AUMF to authorise the use of force by both the military and the CIA:

I’m not actually agreeing with [Kevin’s] AUMF reading. Yes, Section 2′s title refers to the armed forces, but the actual text of section 2 is not so limited (in contrast to the similar section of the 2002 Iraq AUMF, for example, which did refer explicitly and only to armed forces). 

I confess that I find this argument baffling. It’s true that Section 2(a) of the AUMF does not mention the Armed Forces, providing only that “the President is authorized to use all necessary and appropriate force against those  nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11,  2001.” Read in context, however, I don’t see how it is possible to plausibly maintain that the word “force” in Section 2(a) does not specifically refer to force by the United States Armed Forces.

First, the AUMF is a Joint Resolution whose purpose, according to its very first line, is “[t]o authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.”

Second, Section 1 of the AUMF (“Short Title”) says the joint resolution “may be cited as the “Authorization for Use of  Military Force.” We do not traditionally associate with the CIA, even if the CIA occasionally engages in paramilitary activity. (And the “para” in paramilitary is important in this context.)

Third, Section 2 of the AUMF, which contains the “force” language upon which Bobby (and John) rely, is entitled “Authorization For Use of United States Armed Forces.” I know no theory of statutory interpretation nor any canon of statutory construction that would suggest “force” in the first paragraph of a section entitled “Authorization For Use of United States Armed Forces” should be read in context to refer to something other than the use of force by the Armed Forces.

Fourth, Section 2(b)(1) provides that “[c]onsistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.” Section 8(a)(1) of the WPR provides as follows (emphasis mine)…

A Response to Bobby Chesney — Part II (Article II)

by Kevin Jon Heller

In the first part of my response to Bobby, I argued (after meandering around a bit) that Title 50’s “fifth function” provision cannot be used to authorise the CIA to kill Americans overseas — a necessary condition of any argument that the CIA is entitled to a public-authority justification with regard to 18 USC 1119, the foreign-murder statute. (Bobby kindly responds here.) I thus ended that post by asking where else that authority might be found.

Which brings me to the second argument Bobby makes: namely, that the President’s authority to permit the CIA to kill Americans overseas derives from Article II, Section 2 of the Constitution, which deems him the Commander-in-Chief of the armed forces. Here is what Bobby writes:

OK, fine, but aren’t covert action programs bound to comply with federal statutes, including 1119?

They sure are, and it is important to the continuing legitimacy of the covert-action instrument that it be subject to American law in this way. But the question remains: Does the covert drone strike program violate 1119 as applied to al-Aulaqi? Kevin argues that it does because the AUMF should be read to exclude CIA, and thus that section 1119 is violated, and thus that the requirement that covert action programs comply with statutes is violated too. I don’t agree, however, for I don’t think the AUMF is the only possible domestic law explanation for the CIA’s role; Article II likely applies here as well, and performs the same function as the AUMF in this respect.

There are two ways to read Bobby’s argument. The first is that the President’s Article II authority simply empowers him to ignore duly-enacted federal statutes like the foreign-murder statute. That is John Yoo’s position, encapsulated so memorably when he said, with regard to the federal torture statute, that the President could authorise an interrogator to crush the testicles of a detained terrorist’s child if he felt it was necessary to protect the United States. I doubt Bobby shares Yoo’s sentiments.

The second way to read Bobby’s argument is as follows: (1) the President cannot rely on Article II to violate duly-enacted federal statutes; but (2) he can rely on his Article II authority to authorise the CIA to kill Americans overseas, which means (3) the CIA has the same public authority to kill that the military has under the AUMF; therefore, (4) the CIA is no less entitled than the military to the public-authority justification with regard to the foreign-murder statute.

That is a much more sophisticated argument, and no doubt the one that Bobby endorses. Unfortunately, once we understand the nature of the public-authority justification, it’s simply a more sophisticated way of arguing that Article II permits the President to violate a duly-enacted statute…

A Response to Bobby Chesney — Part I

by Kevin Jon Heller

My friend Bobby Chesney has responded at Lawfare to my previous post arguing that Title 50 does not provide the CIA with a public-authority justification to kill Americans overseas. He disagrees with both of the limits on presidential authority to authorise covert action I discussed. I will address the Article II question in a separate post; in this post I want to discuss the “traditional military activity” (TMA) exception to Title 50’s definition of “covert action.” Here is what Bobby writes:

CIA Drone Strikes Don’t Qualify as TMA: As an initial matter, I think one part of his argument depends on a mistaken assumption regarding the meaning of TMA, and that drone strikes do indeed constitute covert action within the meaning of Title 50. The TMA exception to covert action has a complicated and often-misunderstood history, which I recount in detail in this paper (pp. 592-601 especially). The concept was the subject of extensive negotiations between the White House and Congress, ultimately resulting in the following agreement. An activity that otherwise would qualify as covert action would instead count as TMA, thus avoiding the requirement of a written presidential finding and reporting to SSCI and HPSCI, if the following conditions were met.

The operation:

1) was commanded and executed by military personnel, and

2) took place in a context in which overt hostilities either were

(a) ongoing, or

(b) “anticipated (meaning approval has been given by the National Command Authorities for [i] the activities and for [ii] operational planning for hostilities).”

The CIA drone strike program as a general matter almost certainly does not satisfy this test, especially the first prong. This is why it has been long considered by both the Bush and Obama administrations to be covert action, not TMA. If the covert-action statute is capable of conferring the benefits of the public-authority justification, then, it does so here.

I think this response elides the difference between two different situations: (1) where the military wants to use force covertly against al-Qaeda; and (2) where the CIA wants to use force covertly against al-Qaeda. As Bobby’s article brilliantly explains, the TMA language was included in Title 50 because neither President Bush nor the military wanted a presidential finding — with its attendant reporting requirements — to be required every time the military engaged in a covert action. They wanted, in other words, the military to have the right to covertly engage in its traditional warfighting activities without having to acknowledge it was doing so. After much negotiation, Congress ultimately agreed to carve out a category of military actions that would not qualify as “covert actions” for purposes of Title 50, even when not acknowledged: namely, actions that satisfied the two requirements Bobby quotes. The TMA exception thus permits the military to use force covertly against al-Qaeda without a presidential finding as long as the action in question is commanded and executed by the military (check) and takes place in the context of ongoing hostilities (check).

The TMA functions very differently in the context of covert action by the CIA. There is no question that the military is authorised to engage in the kind of activities against al-Qaeda that, when done covertly, may fall under 50 USC 3093.  The military is always authorised to use force against enemy combatants in an armed conflict. The AUMF is simply the latest example of such authorisation. The CIA, however, is in a completely different situation. For all the reasons I discussed in an earlier post, the AUMF does not authorise the CIA to use force against al-Qaeda at all. So the primary question is not whether the CIA can use force against al-Qaeda covertly, but where the CIA gets its authority to use force against al-Qaeda in the first place.

The most obvious answer is, of course, 50 USC 3093

Why Title 50 Does Not Provide the CIA with a Public Authority Justification

by Kevin Jon Heller

As I noted in my previous post, my co-blogger Deborah Pearlstein has suggested that a covert operation authorised by the President under Title 50 of the US Code could function as the CIA’s equivalent to the AUMF in terms of its authority to kill an American citizen overseas. Here is what she has argued:

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.

With respect to Deborah, I don’t think the Title 50 argument works. There is no question that 50 USC 3093 provides the President with considerable authority to authorise “a covert action by departments, agencies, or entities of the United States Government” that he determines “is necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States.” But the President’s authority is not unlimited; indeed, Title 50 contains two important restrictions that very strongly suggest the President could not legally have authorised the CIA to kill an American citizen overseas, and particularly not Anwar al-Awlaki.

The first limit is provided by 50 USC 3093(e), which defines “covert action” for purposes of Title 50 generally (emphasis mine):

As used in this subchapter, the term “covert action” means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include 

(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities;

(2) traditional diplomatic or military activities or routine support to such activities;

(3) traditional law enforcement activities conducted by United States Government law enforcement agencies or routine support to such activities; or

(4) activities to provide routine support to the overt activities (other than activities described in paragraph (1), (2), or (3)) of other United States Government agencies abroad.

The US government has consistently argued that its drone program, both in Yemen and elsewhere, only targets combatants who are involved in a non-international armed conflict between the US and al-Qaeda. While serving as the State Department’s Legal Advisor, for example, Harold Koh claimed that “as a matter of international law, the United States is in an armed conflict with al-Qaeda and its associate forces,” and that “in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaeda leaders who are planning attacks.” Indeed, the new White Paper, like the previous memorandum, emphasizes (p. 12) that “the frame of reference” for whether the CIA is entitled to the public-authority justification regarding Anwar al-Awlaki “is that the United States is currently in the midst of an armed conflict, and the public-authority justification would encompass an operation such as this one were it conduct by the military consistent with the laws of war.”

There is no question, then, that the US government views the use of lethal force against an American citizen who is “a senior leader of al-Qaida or its associated forces” — such as al-Awlaki — as a “traditional military activity.” But if that’s the case, 50 USC 3093(e)(2) specifically prohibits the President from relying on Title 50 to authorise the CIA to engage in such targeting.

Moreover, even if it could somehow be argued that targeting “a senior leader of al-Qaida or its associated forces” in the “armed conflict” between those forces and the US is not a “traditional military activity,” 50 USC 3093(a)(5) would still prohibit the President from authorising the CIA to kill any such leaders who is an American citizen. Section 3093(a)(5) provides that a Presidential finding “may not authorize any action that would violate the Constitution or any statute of the United States.” The foreign-murder statute, 18 USC 1119, is undeniably a “statute of the United States.” The President thus has no authority whatsoever to authorise the CIA to violate section 1119.

That conclusion, it is important to note, is not affected by whether 18 USC 1119 incorporates the public-authority justification — which I believe it does. In order to claim the justification as a defence to a violation of section 1119, the defendant must obviously have the requisite public authority to kill an American overseas. And 50 USC 3093(e)(2) and 50 USC 3093(a)(5) each independently deny the President the right to bestow that authority on the CIA via a covert-action finding under Title 50.

In short, and contrary to the new White Paper, neither the AUMF nor Title 50 provide the CIA with a get-out-of-jail-free card with regard to 18 USC 1119. So unless there is some other source of the CIA’s supposed public authority to kill Americans overseas — and I can’t imagine what it could be — Anwar al-Awlaki’s killing by the CIA is indeed properly described as murder.

NOTE: Marcy Wheeler offers some similar thoughts here.