Judge Bates Dismisses Al-Aulaqi Case

by Kenneth Anderson

Presswires are reporting that Judge John Bates has dismissed the much-noticed case in which the ACLU and the Center for Constitutional Rights sought to bring suit on behalf of Anwar Al-Aulaqi’s father, contesting the ability of the President to target his son, an American citizen hiding abroad in Yemen who the government says is a targetable participant in a terrorist group covered by the AUMF.  The opinion is here. The news story points to standing problems for the father.  Says the AP:

U.S. District Judge John Bates said in a written opinion Tuesday that al-Awlaki’s father does not have the authority to sue on his son’s behalf. But he says the case raises serious issues about whether the United States can plan to kill one of its own citizens.

Quick update:  On a fast read of the opinion — well, anyone interested in these questions needs to read it post haste.  Far from merely being a narrow discussion of standing, it goes on to discuss the political question doctrine in great detail, and concluding on this point:

…this Court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case, see El– Shifa, 607 F.3d at 841 (quoting Baker, 369 U.S. at 211), and the doctrine does not contain any “carve-out” for cases involving the constitutional rights of U.S. citizens. While it may be true that “the political question doctrine wanes” where the constitutional rights of U.S. citizens are at stake, Abu Ali, 350 F. Supp. at 64, it does not become inapposite. [p. 77 opinion, emphasis added]

But opinion contains much, much more.  A very interesting discussion of why the Alien Tort Statute does not offer an avenue; state secrets doctrine; there is a lot of stuff here.  More when I’ve read it more closely.  It is an impressive work in judicial opinion-crafting, regardless of what one thinks of the outcome.

Update:  Larkin Reynolds at Lawfare offers a bunch of snippets from the opinion; also at Lawfare, Bobby Chesney offers an objective outline, sans commentary, of the quite long opinion, and Jack Goldsmith and Ben Wittes weigh in with commentary.  I was puzzled, frankly, at the coverage in both the Post and the Times this morning; Charlie Savage, for example, seemed to think that the language I quoted above was what Judge Bates rejected, if I understood his writeup correctly.  Rather, this is what he found, albeit in a collateral and perhaps purely dicta way, given that he did not need to reach this once he had dismissed on standing grounds.  The best one might say for plaintiffs here is that he confined himself to narrow facts, even while concluding that the executive’s decision was unreviewable.

Basically, I agree with Ben’s five points at Lawfare, and agree with him that the ruling is likely bullet-proof on appeal. The one point I’d add to Ben’s discussion is that it seems to me that Judge Bates’ motivation was to provide at least the beginning of clear institutional settlement on a crucial aspect of the executive’s national security prerogatives, even if it was arguably “mere” dicta.

I’d also note in passing that this holding illustrates in a backhanded way one of the aspects of the Alien Tort Statute that I find troubling, at least as applied to conduct outside the territorial United States.  Viz., it confers special rights  upon aliens that are not available to US citizens – including, in this case, a citizen named Al-Aulaqi.  His alien father can at least begin to bring a claim that the citizen son cannot, because he is, well, not an alien.  This makes sense to me in one context only, viz., when the conduct occurs in the territorial United States, and the alien present in the US might suffer at the hands of state courts or US citizens, who themselves have ample avenues open to them; it levels the playing field.  Abroad, arguably, it gives aliens something that US citizens don’t have.

The Mary Ellen O’Connell and Benjamin Wittes Debate on Targeted Killing and Drone Warfare

by Kenneth Anderson

Interest in targeted killing and drone warfare is not letting up in intensity to judge by the pace of events on the topic. Right on top of my debate with Mary Ellen O’Connell on this at Washington University two weeks ago, Mary Ellen and Ben Wittes undertook another one, this past Saturday at International Law Weekend in New York.  It was considerably more testy than the Washington University debate.  Some in the audience were unhappy with the confrontational nature of the exchange; some thought it refreshingly direct; my view is the latter and congratulations to Vincent Vitkowsky for an excellent job of moderating the debate.  I’m sure it will generate a lot of interest and a lot of pushback in several directions.  Ben has posted up video of the event at Lawfare.

Ben has also added a second post with some transcription, specifically on the question of whether, if one takes Mary Ellen’s statements at what they say, Barack Obama is not therefore a “serial killer” for having directly ordered the CIA to carry out what Mary Ellen characterizes as “crimes” and Harold Koh at the least an aider and abetter.  Ben has in mind, for example, statements in Mary Ellen’s widely noticed article, “Unlawful Killing with Combat Drones,” which among other things declares that “members of the CIA are not lawful combatants and their participation in killing—even in an armed conflict—is a crime.”  One might argue Ben’s choice of provocative words in the debate – serial killing – or one might argue various technical points over whether it is murder or not murder, whether or not there can be the proper intent given the presumed opinions of many lawyers advising inside the government (many of those questions came up, of course, in the detention-interrogation-rendition arguments as well).  His fundamental point is to say, as far as I understand it (and if I do, I agree), if you declare that CIA participation is a crime, then it follows that somewhere there is a perpetrator.  Not to go after him or her is to permit impunity; it is not a matter of saying, well, you are committing crimes, but all we want to do is persuade you to change your policies going forward to bring you into compliance with international law.  Crime is a charge of more than mere non-compliance.  If there is a crime, someone must be responsible for doing it, whether you call it murder, criminal extrajudicial execution, what have you.

And whether one calls these crimes serial killing, murder, extrajudicial execution, etc., they are still a large number of killings. It’s not the kind of crime that just happens to be a tort or civil infraction criminalized, but for which as a regulatory matter one can simply agree not to do it any more, like various of the lesser environmental “crimes” for which corporations routinely pay criminal fines in the domestic United States.  Killing is not like that, presumably, at least not when it’s systematic, systemic, large-scale, and under direct orders.

The article by Mary Ellen specifically says who commits a crime – members of the CIA.  Yet they are not acting as rogues in this, but rather under direct orders of the President.  If it is correct to call the acts a crime, then it is correct to identify the criminals, and those criminals will have to include those who ordered them to do the crimes.  So what is it to be?  I think it a salutary reminder that one ought to be careful in cranking up the machinery of international criminal law over contested interpretations of international law. One risks either over-invoking it or trivializing it or both.  I take it that was Ben’s larger point in seeking to force the question onto the table by insisting on using an ordinary, non-legal term like serial killing. (more…)

Self-Defense and Non-International Armed Conflict in Drone Warfare

by Kenneth Anderson

Over the past year, I’ve been spending much time on the questions of drone warfare and the legal issues raised – many talks, panel discussions, debates, and so on.  In the course of those discussions, as well as discussions with many experts one-on-one, I’ve wanted both to clarify a couple of my views and acknowledge a change in how I would currently characterize some of what we might call the “legal geography” of armed conflict.

So, I have been strongly identified with, and have been robustly urging, that one possible ground justifying the use of drone warfare and targeted killing, as well as setting rules for its conduct, is the international law of self defense.  I maintain, and certainly continue to maintain, that there are circumstances in which the use of targeted killing can and as a proper legal description should be understood to be the use of force as a lawful act of self defense even though it takes place outside of an armed conflict, and even though that use itself does not create an armed conflict.  It seems to me, before as now, crucial to be clear of the existence of this category of the use of force as a lawful possibility for the United States, particularly looking down the road to conditions and situations that do not implicate the current struggle with Al Qaeda, has nothing to do with 9/11, is not covered by the AUMF – a new terrorist group with different terrorist aims, for example, emerging in Latin America or somewhere in Asia twenty-five years from now, and having no connection to any of today’s issues.

I have suggested that this is an appropriate way of characterizing the legal status of attacks carried out by the US in Yemen or Somalia, or elsewhere that terrorists might go in seeking safe haven, or by new groups emerging that increasingly are not directly linked to AQ even if they take inspiration and aims from it.  I have queried at what point jihadist groups threatening the US become only “notionally Al Qaeda” and part of our existing legal framework of a non-international armed conflict only in theory, increasingly remote from the reality.  Territory or legal geography of conflict matters in that, not because the armed conflict is inherently bound to a territory or geography, but instead because the group at issue is only tenuously connected to the group initially defined as part of the armed conflict – partly under domestic law considerations and partly under international law considerations.  The non-international armed conflict goes where the participants go; and likewise if new groups engage in co-belligerent action, then they become part of the armed conflict.  But it has seemed to me in the past several years that some of these groups are in other places and not obviously connected, except by a forced abstraction, to the groups under the AUMF.

I still think that is a perfectly good way to see the use of force.  The new groups present a threat; they present a threat in a place where the armed conflict is not actually underway with respect to them; the US targets them as self-defense in the absence of an armed conflict.  Alternatively, however, if you think either that the people you are targeting are part of the armed conflict to start with because they are linked sufficiently to AQ and the authors of 9/11, or even more directly because they are AQ or affiliates fleeing Pakistan or Afghanistan in search of new safe havens, then the case for viewing this as simply the continuation of the existing non-international armed conflict is also highly plausible.<!–more–>

I view these rationales as permissive, rather than a forced choice between them, and think that each is a perfectly plausible and justifiable way of looking at current actions in Yemen or Somalia.  With regards to Pakistan, insofar as those being targeted are as part of the counterterrorism campaign, that seems to me unremarkably part of the on-going armed conflict, albeit one that has broadened out to include Pakistan Taliban and various terrorist groups in Pakistan that have allied themselves with AQ.  The point, however, is that the question of whether the proper framework for legal analysis is armed conflict or self-defense begins not from geography but instead from the identity of whom you fight; if it is a genuinely unrelated group and, even more plainly as a hypothetical, a genuinely unrelated issue – a new form of transnational Maoism in the Andes, say – then the question of legal geography comes into play to ask whether hostilities of sufficient intensity, etc., suffice to evidence a non-international armed conflict.

This is a change in emphasis for me, and in part a shift in view; in the past I have emphasized far more the geography as to where hostilities are underway, but I am persuaded that the correct analytic frame is to ask “who” and then whether, “where” the fighting takes place, the threshold of sufficient hostilities has been met for a non-international armed conflict not already underway.  But this is in the context of understanding that, in places such as Yemen, it seems to me the facts can be plausibly understood to fit either view.  Indeed, an important shift in my view concerning Yemen in particular is that as we understand better the relationships between Al Qaeda in the Arabian Peninsula and other groups in Yemen and AQ proper, the facts increasingly suggest that both in the past and even more strongly today, the best – and not merely a decently plausible – characterization is to understand them as part of the non-international armed conflict.  It seems to me that there are good legal grounds to understand Somalia and Yemen as attacks as individual acts of self-defense, but as I read the Woodward book and what John Brennan in particular says about the movement of AQ operatives into those new safe havens, and talk with well-informed reporters, those factual descriptions are persuading me that the better of the two views today is to see attacks there as part of the on-going non-international armed conflict.  That would include the targeting al Al Aulaqi.

I also understand that the Obama administration has reasons grounded in domestic law for preferring to see the best international legal frame as non-international armed conflict in Yemen or Somalia.  This arises from its view that for domestic law purposes, the terms of the conflict are set by the AUMF, and not the discretionary scope of the executive.  I think this is perfectly plausible as an international law rationale – either seems to me available to it – and in any case, my reading of the facts on the ground in those places suggest that the administration is not simply making a “notional” argument by any means for how it sees attacks in Yemen or Somalia.  The Obama administration is on sound grounds, in my view, in saying that the non-international armed conflict goes where those who participate go, and extends to groups that co-participate with them.  But that is a shift in my read of the facts from two years ago, and it is also a shift in emphasis as to taking geography into account.

As one government lawyer put it to me, the administration’s view is that, yes, it does have independent grounds for self-defense, exactly as Harold Koh said, and in an appropriate circumstance will invoke it nakedly, without recourse to an armed conflict.  But it also holds the view that once parties initiated a non-international armed conflict, and met the thresholds of intensity and all that, the same non-international armed conflict goes where they go, irrespective of geography.  As he immediately added, with notable weariness, this does not mean Predators over Paris, whether France or Texas; Yemen is not France.  Territorial integrity is an important, vitally important principle of international law – but it can be overcome where a state either cannot or will not control its territory – which is to say, assert the lawful sovereignty over territory for which it has both a privilege but an obligation.  ”No safe havens” has also been a bedrock qualification on territorial integrity of states, as a matter of self defense and evidenced by consistent state practice.

At this moment, strategically, safe havens for both AQ and the Taliban in Pakistan are at the center of the storm, because they represent the intersection of Petraeus’s counter-insurgency strategy as well as what Woodward terms the Biden “counterterrorism-plus” strategy of attacking the safe havens in Pakistan as the locus of the terrorist groups; there is convergence on attacking the safe havens from every strategic view, combined with a view that the real source of the threat is not just <em>in</em> Pakistan, for leading players in the adminstration’s strategic team, it <em>is</em> Pakistan, far more than Afghanistan.  And finally, if one adds to this the John Brennan view, the safe havens already have largely shifted to Yemen and Somalia and will continue to shift into other places in Africa.  If that is the Obama administration’s strategic lens in a nutshell, then the traditional and consistently held US view that safe havens are not immune from attack will not remotely be up for discussion, whether on an armed conflict view or an independent self-defense view of targeted killing and drone strikes.

I am (still) completing a new essay on the operational roles of drones, a roster of strategic uses, one that leaves aside the legal issues in favor of trying to get an analytic handle on the increasingly variegated uses of drones and targeted killing.  It seems to me important for legal analysis because the variations are sufficiently great at this stage that different uses suggest different legal frameworks – some are involved in armed conflict, for example, and some might not be.  But as the argument over the use of drones in Afghanistan, Pakistan, Yemen, and beyond intensifies, I thought it would be worth taking a moment both to clarify and advance my own baseline legal position.  Thus:

Although asserting the framework of self defense, and elaborating its constraints based in necessity, discrimination, and proportionality is crucial, because not all uses of force by the United States will always and forever be instances of armed conflict, it does seem to me plausible and – given the current understanding of facts on the ground in Yemen and Somalia – the best understanding of who is being targeted to regard those uses of force as part of the on-going non-international armed conflict.

(Added:  Thanks to the comments below.  Two quick thoughts.  First, with respect to Alan’s comment on assassination, my understanding of the legal meaning of the assassination ban at this point, as a descriptive legal matter, is that it is indeed only the restatement of the illegality of something that was already illegal; Koh’s speech restates Sofaer’s 1989 statement that the ban applies to acts that would already be illegal.  Hence it does not add a new category of previously illegal things, and in that sense says that the original executive order was hortatory or a restatement of existing US law and policy.  I understood Koh to be reaffirming precisely that interpretation in his speech.  Second, to Nathan, no worries.  But I’d add that I don’t think my factual view of AQAP from two years is correct, on the basis of what has been publicly shown; I had been inclined as a matter of factual characterization to see it as “inspired” by but not coordinated with AQ in any substantial way, and that was, I believe, not actually the case, and not the case now in any event.)

More Targeted Killing …

by Kenneth Anderson

Re the Volokh post to which Kevin refers below. Fear not, I was not trying to withhold content from OJ readers, but it did seem to me that I was days late in arriving at the issue that Ben and Kevin had already been discussing, whereas my VC post went into a lot of other stuff that didn’t strike me as relevant to OJ readers.  Although we are pretty eclectic in our tastes here, as my personal drone post shows, I’ve sometimes had email complaints from readers wondering what the connection to international law is re some post of mine.  Am I wrong about that among our readers?  But anyway, my fundamental motivation in posting it to VC and then linking back to the OJ discussion was blog-strategic – drive some traffic over to OJ from Volokh.  I’m not trying to deprive OJ or its readers of my ‘invaluable’ thoughts.

Very quickly as to substance in one matter of Kevin’s response.  Kevin says I’m offering a caricature of Nils’ view on territoriality and armed conflict.  Maybe.  But what Kevin calls caricature, I’d say is a reasonable statement in a couple of paragraphs on a blog of the center of Nils’, and the ICRC’s, views.  That’s not a criticism.  There is a lot to be said for the view that armed conflict has geographical limits on it.  The ICRC, if I may summarize, or caricature, as you will, reached this view on the perfectly sensible and understandable grounds of its alarm over the Bush administration’s Global War on Terror claims.  I think that the GWOT reached too far – as I have said many places, in my view – once again, a summary or caricature, as you will – what the Bush administration sought was the tail of law wagging the dog of war, the ability to use the law of war anywhere in the world with or without actual hostilities.

The ICRC unsurprisingly became alarmed at this, and has – including through Nils’ work – moved to a largely geographically based view of armed conflict.  I understand and sympathize with the reasons, in part because I share them and in part because even where I don’t share the final conclusion and come to a different view, I do try to start with a sympathetic view to the argument and understand it on its own terms.  The sympathetic read of that argument is that the Bush administration wanted a global war in order to invoke the law of armed conflict anywhere, at any time, but without any connection to actual hostilities.  As I say, I reach a different view – different from the GWOT view or Nils’ view, but I think I am starting from a position of seeking to understand it.  And for that matter, one of the reasons I think I understand it as a “large” view in the law of war is that some of the senior ICRC staff deliberately reached out to me for exactly the same reason – they heard what Koh was saying, what I was saying, what different people were saying, and they were admirably trying very hard to understand the positions and how they differed from their own. (more…)

Ken’s Not-Yet-Response re Drone Warfare and Targeted Killing and Professor Alston’s Report

by Kenneth Anderson

I have been flattered to be called out on the topic of drones, targeted killing, the CIA, and related issues arising mostly from the release today of Professor Philip Alston’s UN special rapporteur report (press release here).  Deborah has a useful summary and some important quotes from the press release in her earlier post.  I’ve read the report once, and am reading it again, but am not ready to comment.  Well, not quite.  I’m under pressure to produce some commentary for some newspaper and print journalism, while getting the grading completed before my faculty’s $100 a day late fine kicks in … sorry to punt, but I’m not quite sure I want to weigh in with a quick blog post as yet on the topic (okay, this gets a little longer than planned, but it’s not really a response to the report).

I will say, though, that Philip’s careful discussion, set against the way in which the State Department frames the issues, is a demonstration once again of the ways in which public international law seems to be increasingly discourses passing in the night.  It’s one reason I hesitate to take the issue up here – I’m not persuaded that we all speak a sufficiently shared methodological language in these highly intertwined legal-political issues to be able to do much more than set out a view and the sources that we find persuasive.  The importance of actual historical state practice of leading states, or not, on the one hand, versus the importance of such things as pronouncements of the ICJ or other tribunals or statements by UN bodies or rapporteurs or military manuals of states that don’t actually fight, or not, on the other … you see the problem.

So, yes, I endorse the “independent” self-defense view as an alternative legal basis for the use of force, which is to say, I reject the view that uses of force are a binary exhausted by law enforcement and armed conflict (I’ve posted another round of this discussion and the CIA in the second hearing testimony that I’ve just posted at SSRN).  Given the existence of an armed conflict with Al Qaeda, among other parties at this point, whether any particular drone strike is an act within the armed conflict or an exercise of independent self-defense is open to interpretation, with the possibility of overlapping rationales in some cases.

I endorse the State Department’s view of this, as I understand it from Legal Adviser Koh’s ASIL speech, and think it nothing novel – merely the reassertion of US legal views – going well back before the Obama, Bush fils, and Clinton administrations, to Reagan and Bush pere, and no doubt well before that even.  If a state cannot or will not control its territory to prevent it from being used as safe haven for terrorists or terrorist groups, then even the important international legal rule of territorial sovereignty can be overcome by an affirmative defense of self-defense; that use of force might be in the form of armed conflict, but it might be something that does not rise to that level of hostilities and thus constitute an act of self-defense use of force simpliciter.  That use of force is justified under jus ad bellum and is directed against the threat – the terrorists – and because it is a use of force, it must meet standards that are, as the Legal Adviser said, the principles underlying armed conflict rules, distinction and proportionality and, I would add, necessity in the first place in determining to target.  Necessity giving rise to self-defense; distinction in defining the target; proportionality in the evaluation of collateral damage. (more…)

Drones and the CIA and Charlie Savage’s NYT Article

by Kenneth Anderson

Although I was up at six, I think Julian must get up a lot earlier than I do, as he is regularly beats me to the punch on what’s in the newspapers on drones.  I will post something more once Philip Alston’s report is out next Tuesday and I have had a chance to read the text.  But here are a couple of comments per Charlie Savage’s exceedingly interesting NYT piece.

There are two ways of seeing a call for drone strikes to be turned over to the US military, rather than the CIA.  One is fundamentally grounded in the binary that all uses of force must be either law enforcement or else armed conflict – and if so, there is no room for the CIA to be conducting these strikes.  In that case case, the call to take the CIA out of it is a way of reasserting the basic binary.  This is problematic from the US standpoint, if it is a way of reasserting this fundamental binary, since the Legal Adviser’s ASIL speech specifically preserves an independent ground of self-defense that is not a matter of armed conflict.  If CIA participation is unlawful because the binary holds, then the US has simply rejected the underlying premise – indeed, said that it has never accepted it, going back clear to the 1980s and beyond.

The other way to see a call to take the CIA out of the activity is on the ground that because this is an armed conflict, uses of force must be undertaken by lawful participants, and the CIA, as a civilian agency, is not a lawful participant.  Insofar as this is offered as something that is not driven by the fundamental binary above, then it is essentially a claim about the CIA not meeting the requirements lawfully to engage in hostilities – some version of the claim that the war with Al Qaeda is an armed conflict, and the CIA are not privileged combatants.  This is a technically more complicated claim in the rules of war than much of the public discussion has treated it.  Much of the public discussion seems to revolve around the idea that if you are a civilian, you are not allowed to take part in hostilities; the legal point, rather, is that there are numerous categories of civilians that have varying roles in direct participation in hostilities and the point is not to say that their participation is unlawful, it is that – if they were facing a lawful foe – they are themselves lawful targets.  Whether they wear uniforms or not is a question of whether the circumstances in which they wear uniforms, or non-standard uniforms (e.g., special forces in Afghanistan), etc., is a question of whether they fail to distinguish themselves from the non-combatants.  Insofar as they do this from Langely in some cubicle, that does not really present a problem.

As to the assertion that they have made themselves lawful targets – that would be true if engaged with a foe that could lawfully target anything.  In the case of a terrorist group – Al Qaeda, the IRA, ETA, etc., the automatic assumption that military lawyers sometimes make, that jus ad bellum and jus in bello are independent, is beside the point; these groups have no reciprocal right to target anything, irrespective of whether, in a lawful conflict, something or someone would be a target.  It is not the case that by flying a drone from Langley, the CIA operator is now a lawful target – he or she would be if flying it in a conflict with, oh, North Korea, but not Al Qaeda.  Al Qaeda has no belligerency rights jus ad bellum, just as it has no combatant privilege jus in bello.  To suggest that the CIA at Langley has put itself into an “equivalent” position is not correct.  If the CIA at Langley were fighting a lawful actor, its participants would be lawful targets – although not, merely in virtue of not wearing uniforms inside Langley, “unlawful combatants.” But not as regards Al Qaeda. (more…)

Congress and the ACLU Begin Pushback on the Legality of Targeted Killings

by Julian Ku

Our own Ken Anderson joined a number of other law profs, including Prof. David Glazier, in testimony today before the National Security and Foreign Affairs subcommittee of the U.S. House Committee on Oversight and Government Reform to discuss, what else, the legality of U.S. targeted killings policy. Wired has a nice report summarizing the testimony, and the issues are already familiar to the folks on this blog.  Meanwhile, the ACLU weighs in today with a tough public letter challenging President Obama’s targeted killings policy on legal grounds.  The ACLU’s analysis appears to concede that targeted killings may be used (subject to law of war limits) within recognized conflict zones.  But outside of those zones,

…the use of lethal force by the United States is strictly limited by international law and, at least in some circumstances, the Constitution. These laws permit lethal force to be used only as a last resort, and only to prevent imminent attacks that are likely to cause death or serious physical injury. According to news reports, the program you have authorized is based on “kill lists” to which names are added, sometimes for months at a time, after a secret internal process. Such a program of long-premeditated and bureaucratized killing is plainly not limited to targeting genuinely imminent threats. Any such program is far more sweeping than the law allows and raises grave constitutional and human rights concerns.

The letter goes on to draw a distinction between detention of enemy combatants and targeted killing of them that I don’t find all that persuasive.  But taken together, the Congressional interest in these issues and the ACLU letter makes a cogent legal and policy case against targeted killings outside of Afghanistan and Iraq.  The letter may be the first sign that President Obama (and Clinton and Koh) will no longer be getting a pass on their war on terrorism policies.

What About Congress? The Washington Post Endorses Inherent Executive Power to Use Military Force

by Julian Ku

Following up on Ken’s post about the Washington Post editorial endorsing Harold Koh’s legal defense of targeted killings, it is worth analyzing the passage Ken quoted one more time, but this time from a domestic U.S. constitutional perspective:

Mr. Koh’s reaffirmation of the right to self-defense — even outside the confines of an existing armed conflict — is particularly important. The Authorization for the Use of Military Force(AUMF) after Sept. 11, 2001, empowered the president to pursue those responsible for the attacks, including al-Qaeda and the Taliban. That authority may wane with time. But the right of self-defense is inherent and may be exercised against current and future enemies that pose an imminent threat, including those operating outside of traditional combat zones.

What is fascinating about this passage is that the Post seems to endorsing a general authority of the President to use deadly force against “current and future enemies that pose an imminent threat,” whether or not those enemies fall within the Authorization for the Use of Military Force. The Post seems to be endorsing an “inherent” right of the President to target enemies, with or without congressional authorization.

There was a time when the debate over the use of force by the U.S. government focused almost exclusively on a domestic separation of powers conversation. U.S. legal scholars and elites would engage in debates about when and whether Congressional authorization is required before the President can use military force against U.S. enemies.  I think that this debate is basically over, thanks to the Obama Administration.

Why the President’s Targeted Killings are Illegal (According to Professor O’Connell)

by Julian Ku

Kevin has done, and is doing, a very nice job of critiquing the legality of the Obama Administration’s targeted killing policy.  On the critical side, it is also worth noting the views of Mary Ellen O’Connell, Professor at Notre Dame, who has become a leading public critic of the legality of this policy.  Her basic point is that international law only permits such killings on the battlefield, and any killings off of the battlefield (as she defines it) are illegal acts of extrajudicial murder. This would be true whether or not the U.S. actor is a privileged combatant.  I think this makes sense, even if I doubt it is right.  It does show, however, that the Obama and Bush Administration’s policies as to the nature of this war is pretty close (and getting closer).  Because it is President Obama, and because he has folks like Harold Koh, Neal Katyal, and Marty Lederman to defend these views, I don’t think there will be nearly the same level of controversy as during the Bush years.

The Constitutionality of President Obama’s Targeted Killing of U.S. Citizens

by Julian Ku

The NYT reports that the Obama Administration has authorized the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, The article notes the international law justification for his killing: he is an avowed member of Al Qaeda actively engaged in hostilities against the U.S.  Under either the law of armed conflict or the general law of self-defense, the Administration probably has the legal authority to kill him.  (Unless international human rights law applies, but the administration plainly believes this law does not apply). 

But, as I noted here a few months ago, this international law analysis does not answer questions about al-Awlaki’s constitutional rights.  Under U.S. Supreme Court precedents, U.S. citizens often can invoke constitutional rights against the U.S. government, even when they are abroad. (See Reid v. Covert). Maybe this is a situation where granting constitutional protections would be, as Justice Harlan  suggested, “impracticable and anomalous.”  It certainly seems that way, and I assume the Obama Administration has concluded that the Constitution does not apply.  Alternatively, the Constitution might apply, and the theory is simply that al-Awlaki’s rights substantive and procedural Due Process rights are not being violated.  This seems a harder argument to make, and it would be fascinating to see someone (like Harold Koh again?) make it.

Predators over Pakistan …

by Kenneth Anderson

My new Weekly Standard essay – although “polemic” is probably closer to it.  And thanks, Julian, for the plug below! Well, regular readers have been hearing about this piece for a while, and I have posted various arguments from it (concerning targeted killing and Predator drones and the CIA and armed conflict and self-defense, and my general concern that the Obama administration has embraced a policy that its lawyers have not so far stood up publicly to defend as lawful against its gradually emerging critics in the international “soft law” community) here at Opinio Juris and at Volokh Conspiracy.  I will post a couple of comments on the piece later, including of couple of things I wish I had clarified or said differently.  Meanwhile, if you are interested, it is the cover in this week’s Weekly Standard (March 8, 2010).  It is also very, very long, at some 8,000 words — for which I am deeply grateful to the WS’s editors but you perhaps will not be — and so you might find it easier to read a pdf of the print edition at SSRN.

I have been meaning to add, though, that several positions are emerging in new scholarship coming out on this topic.  I’m not the only person defending “self defense” as the correct paradigm, for example.  Jordan Paust has an important new paper on this, and although we come to very different conclusions as to what and how self-defense does things for you, we share a foundation in international law of self-defense.  Mary Ellen O’Connell also has a well known position, ably set out in this book chapter, and which I criticize in passing in the WS.  John Radsan and Richard Murphy stake out an interesting position that calls for some form of judicial review of targeted killing, in this new Cardozo paper.  And, of course, the Ur-Text on the subject (even when I disagree with it!) Nils Melzer’s treatise, Targeted Killing in International Law (Oxford 2008), which I see is now out in paperback at $50 (but no Kindle edition).  I will come back in a separate post both to comment on some things from the WS essay at a less political level, and also to give a better sense of where my position sits in relation to others in the international law community.  Finally, I’d like to thank and congratulate the Harvard National Security Journal for its upcoming symposium on robotics, drones, and related topics this week – it promises to be very interesting, and I believe the journal might post some account of it or perhaps some video of the program.

Targeted Killings: the NYT echoes Ken and Demands an Accounting

by Julian Ku

Our own Ken Anderson is one of the most knowledgeable and thoughtful legal scholars on the question of targeted killings by the United States. And he has noted here and the Volokh that he has developed a complex analysis of the U.S. policy toward targeted killings, which grounds such killings in the international law of self-defense rather than the law of war.  And he has criticized the failure of the Obama Administration to provide any legal justification for these killings.

Right on cue, Roger Cohen of the NYT argues for, basically, the same thing, although he is a bit confused in his argument.