12-3-2010By Gabor Rona
International Legal Director
Over at the unfortunately-named “Lawfare Blog,” and on countless other blogs, folks can’t seem to get enough of the debate about whether the government has the right to target an American citizen, Anwar Al Aulaqi, for his suspected terrorist ties or acts (no one is sure which), or both. That’s how the discussion about a lawsuit concerning the notorious decision of the US Government to target a notorious individual who happens to be American is being framed.
But that’s not what the lawsuit is really about. Even if the case reaches the merits – questionable in light of all the procedural roadblocks the government is throwing up – it will not resolve whether Al Aulaqi is properly the subject of targeted killing. That requires application of facts to law – facts that the USG understandably wishes not to litigate, let alone publicize, and I suspect no federal judge will require the USG to disclose those facts.
It is about the law: what is the government’s concept of the legal framework applicable to targeted killing, and what are the criteria that justify targeted killing within that framework?
State Department Legal Advisor Harold Koh’s pronouncements on the subject at this year’s American Society of International Law Annual Meeting are a beginning but do not adequately lay out the US’s understanding of the elements of applicable legal frameworks, let alone the criteria for determining whether an individual falls within them. Ken Anderson’s most recent post at Lawfare attempts to address this. He uses a variety of events and considerations from the past and present to paste together his vision of US policy, but he does not speak for the present administration.
So, if folks want to argue about whether or not the government can target Al Aulaqi, that’s fine, but this litigation is really about something else: does the government owe its citizens an explanation of its targeting policy in relation to applicable law?
The scope of uncertainty about all this is evident in a recent post by Ben Wittes, one of the three Lawfare Godfathers along with Jack Goldsmith and Bobby Chesney. At one point, Ben says that if Al Aulaqi falls within the scope of the AUMF, he’s targetable:
“As a matter of law, if Al Aulaqi is covered by the AUMF and one accepts that the United States is engaged in an armed conflict with AQAP, Al Aulaqi can be targeted at will.”
But later in the same post, Ben relents:
“I would bet a considerable amoung (sic) of money that the internal authorization to use force against Al Aulaqi has some conditions attached to it. It doesn’t say, I suspect, “Kill the guy even if he tries to surrender” or “Kill the guy even if a capture is manageable with minimal threat to forces.” Rather, I would bet that force is authorized only in the absence of less lethal alternative means of neutralizing the threat he poses.” (Emphasis in original).
Precisely. And the question raised by the litigation is simply this: which set of criteria is the government using? Or more precisely, does the government have an obligation to tell its citizenry whether its criteria for determining that someone can be targeted 1) fall within applicable legal frameworks, i.e., jus in bello (the law of armed conflict, also known as the laws of war and International Humanitarian Law) or jus ad bellum (the right to use force in international relations, as reflected in the UN Charter), or both, and 2) are in accordance with recognized criteria for use of force within those frameworks. (I suppose plaintiff would also like to litigate whether the available facts satisfy the applicable criteria, but that’s a secondary issue that, as I note above, will not likely be entertained even should plaintiff overcome hurdles to reaching the merits.)
LAW OF ARMED CONFLICT AUTHORITY?
If the government asserts a law of war/law of armed conflict/IHL/jus in bello based claim, as implemented through the post-9/11 Congressional Authorization for the Use of Military Force (AUMF) and recognizes no qualification, then it is in violation of international law (perhaps even committing war crimes) precisely for the reasons Ben noted in his caveat: it would be illegal to kill Al Aulaqi if he was surrendering, or already in custody, or maybe even if reasonable means of neutralizing him other than deadly force were available. Further, the government must also be satisfied that Al Aulaqi is “directly participating in hostilities” (DPH) in an armed conflict at the time of targeting, a condition that is not explicit in the AUMF, but must be implied if the targeting authority is to be legitimate under international law. Contributor Ken Anderson glides over the DPH standard a bit too easily, and attributes to Ben a view that Ben did assert (‘if covered by the AUMF, he can be targeted at will’) but that he rightly seems to back away from in describing the conditions he would bet are attached to any authorization to use force against Al Aulaqi.
“You (Ben) are correct that with respect to those with whom we are in an armed conflict, the imminence requirement has no application with respect to any particular person taking part in hostilities; the conflict is long since underway. Participants can be targeted at will.”
First, Ken leaves out the modifier “directly,” as in “directly taking part in hostilities.” Second, he fails to note that “DPH” targeting authority lasts only so long as the target is DPH – once s/he ends direct participation, s/he is no longer targetable. But most importantly, he does not address what exactly are the criteria for determining DPH. That is the heart of what the litigation is designed to elicit, to the extent the government relies on IHL as a basis for targeted killing.
Even as Jack Goldsmith, also at Lawfare, argues that the AUMF must be expanded to cover use of force against those less closely affiliated with al Qaeda than the present AUMF covers, or those not affiliated with al Qaeda at all, there are reasons to claim that the existing AUMF is overbroad by international legal standards. But while I think it both a legal and policy mistake to expand legislation of killing authority over entities that the US is hardly “at war” with, I recognize that the AUMF can be both underinclusive and overinclusive. It is underinclusive if it doesn’t include those against whom the US may be at war but are not part of, or sufficiently connected to, al Qaeda or The Taliban. It is overinclusive because it purports to permit use of force based on association, rather than conduct. That would be fine for targeting enemy soldiers in international armed conflict because they have combatant status and may be targeted simply by virtue of that status. But in non-international armed conflict, for example, a war between a State and a non-State armed group, the non-state fighters do not have combatant status. The license to kill them turns on their conduct, namely, DPH, not their status. This is so even under the new ICRC guidance on DPH, which recognizes the targetability of non-State fighters who maintain a “continuous combat function” in armed conflict. The litigation could tease out the US’ views on DPH.
RIGHT TO SELF-DEFENSE AUTHORITY?
If the government is not asserting an armed conflict/IHL/jus in bello justification, then it must be using jus ad bellum. It is unclear if or how this law applies to the targeting of individuals placed on a kill list for an indeterminate period. Ben and Ken raise valid points about the “imminence of the threat” question that the litigation could settle.
In short, the purpose of the lawsuit is to find out what exactly is US policy, in order to determine whether or not it comports with applicable domestic and international law. If this is the minimum, and perhaps the maximum, that the government owes by way of explanation, it would not result in a verdict that Al Aulaqi is or isn’t targetable. It would only result in a judicial determination of the legal parameters for targeted killing.
It may be too much to ask of our government that it disclose the facts to justify killing Al Aulaqi without charge or trial, but is it too much to ask that it explain its legal theory for doing so?