10-3-2011By Daphne Eviatar
Senior Associate, Law and Security
Last week’s killing of the notorious cleric Anwar Al-Awlaki in Yemen seems so far like a clear political victory for President Obama.
Even the Republican House Homeland Security Chairman, Peter King, lauded this latest targeted killing by U.S. Special Forces as “a tremendous tribute to President Obama and the men and women of our intelligence community.”
But was the killing lawful? For that matter, is the growing U.S. practice of targeting individuals around the world for death with remote-controlled drones or secret Special Operations raids a legal way to fight terrorism?
The jury’s out. But the Obama administration could do far more to dispel claims that it wasn’t, and to win broader global support for its counterterrorism strategy, by providing more details on its rapidly accelerating use of targeted killings.
The Obama administration has justified targeting Awlaki in court papers by saying that the Yemen-based cleric played an “operational role” in Al Qaeda in the Arabian Peninsula (AQAP), an affiliate of al Qaeda.
“He directed the failed attempt to blow up an airplane on Christmas Day in 2009,” President Obama said on Friday. “He directed the failed attempt to blow up U.S. cargo planes in 2010. And he repeatedly called on individuals in the United States and around the globe to kill innocent men, women and children to advance a murderous agenda.”
But what does it mean for an individual to play an “operational role” in a terrorist organization? Under international laws of war, a targeted killing is only lawful if the target was, at the time of the strike, either “directly participating in hostilities” or performing a “continuous combat function.” Alternatively, the U.S. government could kill someone in self-defense if he poses an imminent threat to the United States.
Even assuming there’s evidence to support the president’s claim that Awlaki “directed” the 2009 and 2010 failed attempts to attack U.S. interests, was Awlaki directly participating in attacks, or otherwise posing an imminent threat, at the time he was killed? If not, there’s no justification for not arresting him and putting him on trial for those past acts, if his arrest in Yemen was feasible.
The other question is whether we’re even at war with AQAP. That al Qaeda “affiliate” has not been officially named as responsible for the September 11 terrorist attacks — which was the United States’ justification for going to war in the first place. The U.S. government claims the authority to detain individuals who are members of or substantially supporting al Qaeda or “associated forces,” but that’s not the same as killing them.
Osama bin Laden, a self-declared leader of al Qaeda, was an easier case. But it’s not clear that the U.S. can lawfully deem even an “operational” leader of an “affiliated” terrorist group somewhere in the world a legitimate U.S. military target.
Much has been made of the fact that Awlaki was an American citizen. Glenn Greenwald at Salon andthe ACLU have both suggested that he was therefore entitled to “due process” before he could be targeted. While his citizenship does raise constitutional questions, when it comes to the broader questions raised by U.S. targeted killing policy, Awlaki’s citizenship is beside the point.
The real problem that the Awlaki killing highlights is that we know so little about the U.S. policy toward targeted killings — who it’s targeting and on what basis. That may not seem like such a pressing matter to Americans right now, when the U.S. government is the one in charge of the Special Operations night raids and remote-controlled drones. But when China or Russia or Iran starts using drone technology to target individuals they deem enemies, some of whom may be located here in the United States, the question may take on a new urgency. And in Yemen, Somalia, Afghanistan and Pakistan, where U.S. targeted killings have so far been concentrated, the “collateral damage” of civilians killed in these attacks is already inciting considerable regional anger and stoking virulent anti-U.S. sentiment.
The Obama administration could go a long way towards thwarting these sorts of collateral consequences to its targeted killing policy by being honest about who it’s targeting and why, and exactly how many un-targeted civilians are being killed in the process. The administration needs to explain to the world how and why we’re engaging in targeted killings — and why, if lawful, they are better than an indiscriminate war on terrorism. Only by demonstrating that it’s pursuing a legitimate strategy can the United States possibly hope to win global support and cooperation. In the long run, those will be critical to any lasting U.S. victory.
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