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What’s the factual basis for killing Awlaki?

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Though we don’t necessarily know incredibly much more about the US government’s factual basis for the targeted killing in September 2011 of Anwar al-Awlaki, a US citizen, the release of an Obama administration memo earlier today by a federal appeals court sheds new light on the administration’s legal rationale:USflag

A federal appeals court in New York on Monday made public a redacted version of a 2010 Justice Department memo that signed off on the targeted killing of an American citizen, Anwar al-Awlaki, without a trial, following Freedom of Information Act lawsuits. The memo, signed by David Barron, who was then the acting head of the department’s Office of Legal Counsel and is now a federal appeals court judge in Boston, concluded that it would be lawful to target Mr. Awlaki for killing if his capture was not feasible. Intelligence analysts had concluded that Mr. Awlaki was an operational terrorist.

The Obama administration fought the disclosure, initially refusing to confirm or deny the memo’s existence. In January 2013, a Federal District Court judge ruled that it could keep the memo secret. But in April, the United States Court of Appeals for the Second Circuit ruled that portions of the memo containing legal analysis — but not those compiling the evidence against Mr. Awlaki — must be made public.

The memo argues that 18 U.S.C. § 1119, which addresses the foreign killing of US nationals, must incorporate the public authority exception, and it further argues that the exception permits either the US Department of Defense and/or the US Central Intelligence Agency to carry out the contemplated operation against Awlaki. 

The memo also argues that Awlaki’s US citizenship doesn’t preclude DoD or CIA action, citing Hamdi v. Rumsfeld, the 2004 Supreme Court ruling that, subject to certain due process requirements, permits the detention of a US citizen as an ‘enemy combatant.’

Sharper legal minds will parse the contents of the memo, parts of which were redacted, and it presents many obviously difficult questions:

  • Even if the US military is justified in killing Awlaki under the public authority exception, the CIA’s justification is a lot more controversial because it’s a US government agency, not the military. The heavy redactions in the memo, as it relates to the CIA, make the Justice Department’s rationale unclear.
  • The US government’s statutory basis for targeting Awlaki lies in the  Authorization to Use Military Force Against Terrorists (AUMF), originally enacted in 2001, which authorizes efforts not only against al-Qaeda, but also against forces  ‘associated with’ al-Qaeda, including Al Qaeda in the Arabian Peninsula (AQAP). The argument is that this as true in Yemen (which, the Justice Department attorneys admit, is ‘far from the most active theater of combat’ between the United States and al-Qaeda.’) as it is in Afghanistan or anywhere in the world that al-Qaeda and ‘associated forces’ operate. But that broad global-battlefield interpretation isn’t universally accepted, even among many members of the US Congress that enacted the AUMF.
  • The memo contemplates that Awlaki’s US citizenship bestows some protections, even in Yemen, under the Fifth Amendment’s Due Process Clause and the Fourth Amendment. As regards the Fifth Amendment, the memo again points to Hamdi, which uses a Mathews v. Eldridge balancing test. In a scenario where a US citizen/enemy combatant poses a continued and imminent threat, the Justice Department attorneys argue that the public interest far outweighs the private interest of guaranteeing due process. Though the memo also acknowledges that Awlaki’s targeting constitutes a ‘seizure’ under the Fourth Amendment, the memo again points to the ‘reasonableness’ balancing tests elucidated by the Supreme Court in prior rulings on the constitutionality of seizures.

Nevertheless, the true heart of this case isn’t necessarily the black-letter legal reasoning, fascinating and controversial though it may be. Throughout the memo, the Justice Department attorneys essentially assume Awlaki’s guilt as fact. That’s fine, because no one was asking the Office of Legal Counsel to assess Awlaki’s guilt. But it’s one thing to argue that the AUMF applies in full force to the US government’s ability to target enemy combatants who are US citizens, and it’s quite another thing to argue that Awlaki was an enemy combatant in the first place.

Even if you are willing to defer to the Obama administration’s interpretation on all of the issues of the law involved — the applicability of the AUMF, the applicability of the public authority exception, the non-applicability of the Fifth Amendment, the Fourth Amendment or any mitigating factors that accrue on the basis of US citizenship — we still don’t know how the US government determines how a US citizen can be lawfully targeted for legal force.

The most relevant question, still unanswered, is how the US government concluded that Awlaki crossed the line from ‘preacher spewing noxious opinions’ to ‘operational al-Qaeda militant.’

First, what specific actions did Awlaki take that caused him to be enemy combatant?

Secondly, on the basis of what evidence did the US government determine that Awlaki was an enemy combatant?  

Finally, does anything about the process that the US government deployed in targeting Awlaki meet any kind of standards for due process, let alone those typically granted to US citizens under the Fifth Amendment?

On all three questions, we don’t know the answer because the Obama administration won’t release any information. Until and unless it does, the evidentiary standard for assassinating a US citizen abroad seems to be ‘when high-level government officials  conclude it.’ Continue reading What’s the factual basis for killing Awlaki? →

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Questions on the U.S. war on terror, Obama’s big speech and its effect on world politics

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There’s a lot to unpack from the wide-ranging speech that U.S. president Barack Obama gave this afternoon on the United States and its ongoing military action to combat terror organizations.USflag

I got the sense that Obama’s been anxious to make this speech for some time and to make the terms of debate over targeted attacks from unmanned aircraft — ‘drones’ — public.  The speech itself came after U.S. attorney general Eric Holder admitted in a letter for the first time that U.S. drones killed Anwar al-Awlaki in Yemen, as well as three other U.S. citizens accidentally.  It’s important to recall, furthermore, that Obama only first publicly acknowledged the drone strikes in Pakistan last year during an online chat.

It’s far beyond my blog’s realm to delve far into the speech in specificity — Benjamin Wittes has already done that in a series of blog posts (here and here) at Lawfare that are more articulate than anything I could produce in such a short time frame.  But when the president of the United States delivers a wide-ranging address on the U.S. war on terror, it has so many effects on world politics that it’s impossible not to think about how policy may change in the remaining years of the Obama administration.

Those policy decisions are incredibly relevant to international law and politics, but also in the domestic politics of two dozen countries — Pakistan, Yemen, Iraq, Afghanistan, Somalia, and so on.

What I do have, however, are a lot of questions that remain following the speech — perhaps even more than I had before I watched the speech.

  • Associated forces.  Obama mentioned al-Qaeda’s ‘associated forces’ four times, but what exactly is an associated force?  The lack of any meaningful definition lingered awkwardly with every mention.  In many ways, this goes to the heart of the legal issue with the drone strikes in places like Yemen and Somalia, and whether they’re even authorized under the Authorization to Use Military Force (AUMF).  Al-Qaeda in the Arab Peninsula (AQAP) and al-Qaeda in the Islamic Maghreb (AQIM) share a name, and key links, but it’s really difficult for me to believe that impoverished radical Yemenis or Tuaregs are really so associated with the original iteration of al-Qaeda that Osama bin Laden led in 2001. Somalia’s al-Shabab is often described as a home-grown al-Qaeda, but is it an associated person? It’s even more doubtful than AQAP and AQIM.  Hamas and al-Qaeda are certainly mutually sympathetic and may well have mutual ties over the past two decades, but does that make Hamas an associated force?  In the same way, the Taliban in Afghanistan is not affiliated with the Tehrek-e-Taliban Pakistan (i.e., the Pakistani Taliban), but they’ve been a particular target of the Obama administration’s drone strikes in Pakistan — so much so that drone strikes were a top issue in Pakistan’s recent national elections.  So there’s a real question as to whether those actions legal — if those targets aren’t associated forces, the targets aren’t subject to the use of military force under the AUMF.
  • The precision of future drone strikes.  Obama has committed to more judicial use of drone strikes that have, as Obama admitted, killed civilians in the past, and though he didn’t exactly outline it in his speech, it’s reported that the U.S. military will take over some of the role that the Central Intelligence Agency has played in the drone strikes in recent years.  Nonetheless, the CIA has been reported to have used so-called ‘signature strikes,’ which target young men who live in areas known to be dominated by radical terrorist groups, though the strikes aren’t based on specific identification or intelligence that ties the targets to clear engagement against the United States.  Obama didn’t mention ‘signature strikes’ today.  But he argued that the use of drones is ‘heavily constrained’ and further bound ‘by consultations with partners’ and ‘respect for state sovereignty,’ and that drone strikes are only waged against terrorists ‘who pose a continuing and imminent threat’ when there are not other governments ‘capable of addressing’ that threat,’ and only when there’s a ‘near-certainty that no civilians will be killed or injured.’  That’s a much higher standard than what’s been reported in the past.  So was Obama describing past policy on drone strikes or future policy? What do assurances of more precision in the future mean when we don’t know the level of care with which the drone strikes have been effected in the past?
  • The oversight of future drone strikes.  It’s also unclear how the Obama administration believes oversight should be handled.  Obama, in his speech, noted that he’s asked his administration to review proposals for extending oversight on drone strikes, and he outlined several options, including something similar to the FISA courts that authorize electronic surveillance of U.S. citizens in the fight against terrorism.  But he’s in year five of his administration — shouldn’t this be something that his administration has already considered?  Will his administration be able to enact a system in time for Obama’s successor?  Will it even be based in statute so that it’s binding on future administrations?  All of this is unclear. Continue reading Questions on the U.S. war on terror, Obama’s big speech and its effect on world politics →