Because he is a U.S. citizen, adding Aulaqi to the CIA list required special approval from the White House, officials said. The move means that Aulaqi would be considered a legitimate target not only for a military strike carried out by U.S. and Yemeni forces, but also for lethal CIA operations.
(I'm confused by the phrase "special approval from the White House." Being a building and an inanimate object, I did not know that the White House was capable of giving out approvals. I will assume this means that President Obama gave this approval -- why couldn't the author say this?)
In a recent "This Week at War" column, I asked the following questions about America's use of killer drones:
Specifically, if it is legal for the CIA to employ Predator drones in Pakistan, Yemen, and Somalia, what about remote reaches of Asia, Africa, Latin America, or the high seas? Can the United States shoot at any sorts of criminal suspects and not just al Qaeda suspects or their allies? What if the target is a U.S. citizen? Why is it legal for drones with missiles to do what an overseas FBI agent with a pistol cannot? Does any suspect deemed "too difficult to apprehend" become legally eligible for a Hellfire missile instead?
Speaking for the U.S. government, Harold Koh, recently a law school dean and now legal adviser to the U.S. State Department, explained why states, including the United States, have very broad authorities to kill people they conclude are threats. Summarizing his conclusions on this issue (see the "Use of Force" section of his speech), Koh says the U.S. government's legal authority to shoot missiles at people comes from 1) the Authorization to Use Military Force (AUMF) against al Qaeda personnel and their supporters that Congress passed in late September 2001, and 2) a state's inherent right of self-defense, which authorizes lethal force against all other belligerents anywhere at any time.
What makes someone a belligerent? According to Koh, it is someone who is part of a group that is in armed conflict with a state. Any limitations on the state's employment of firepower? According to Koh, the state's use of force must aim at military objectives and the incidental damage of the attack must not be excessive in relation to the military objective.
Applying Koh's reasoning, it seems as if it the U.S. government could legally answer "yes" to all of the questions I posed above, as long as the government could show the person was part of a group that was in some way hostile to the U.S. Koh sums it up this way:
Some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.
Still, some nagging questions remain:
1) Does this authority only apply outside U.S. territory or could it apply inside the U.S.?
2) Any limitation on "the White House's" discretion to define what constitutes a hostile group and who is associated with such a group?
3) What happens when (not if) other states, NGOs, and international bodies disagree with the U.S. government's legal reasoning? Will future former Obama administration officials risk arrest for war crimes when they travel outside the U.S., a risk that presumably hangs over the heads of some former Bush administration officials?
Comments
What a weird legal argument for extra-judicial assassination!? Had King George III's military possessed the same capacity as President Obama and the CIA (with the aid of the DoD), in 1776 and been able to murder from afar all signatories of the Dec. of Ind., would they have used the same legal justification? OF COURSE! That's why Citizens are guaranteed Due Process. Even Captured Civil war Officers weren't summarily executed for taking up arms against the Union.
U.S. military officers should mouth the Oath of Commission to themselves and consider if they sincerely want aircraft and other military assets under their commands to be arbitrarily co-opted by some CIA suit to murder Americans unfortunate enough to be judged guilty by the NSC Star Chamber and put on a list for execution. I'm not seriously suggesting officers refuse to order their commands to obey such blatantly illegal orders, but hopefully there's enough Honor and Integrity left in the so-called Honor System that SOME officers will at least accept a 'black mark' on their service record to meekly object while a civilian secret policeman or spy launches the strike.
Moreover, Commissioned officers should also consider that, quite aside from this example, an individual specifically CHOSEN by the spin jerks at the White House NOT to be controversial, given the dubious field intel the CIA typically offers away from active combat areas, looking the other way while some spy or diplomat kills an American civilian abroad, MIGHT be authorized by the President, or MIGHT be a cynical lie concocted by said spies or diplomats to kill a DODIG investigator or auditor or even a SOCOM or Red Team unit. The point being that neither spies nor diplomats are in the Chain of Command, nor bound by the same Code of Conduct or Legal obligation as the military personnel they're using to do their dirty work.
Lastly, in a "small wars" (4GW) context, there's always going to be friction and confusion and even open hostility between irregular and regular force units. If the U.S. military ever seriously wants to maintain and control irregulars, letting the CIA or DoS "regulars" borrow the USAF/Navy to kill Americans for them from afar is a very bad practice (funny how there's a rash of movies out referring to this exact subject).
Anyway, as always, Best,
A. Scott Crawford
I don't understand all this talk about killing this guy in the U.S.
Has Anwar al-Aulaqi been spotted recently in the U.S.?
Assuming that he's not and that he is outside U.S. territory, the question of whether this order is constitutional boils down to whether the 5th Amendment right to due process applies outside U.S. territory.
The Supreme Court has not expressly ruled whether the right to due process applies outside the U.S., but it has ruled that the 4th Amendment DOES NOT apply outside the U.S.
Again, there are rules in place which prohibit the military and the CIA from operating inside US borders. While I'm not completely on board with the idea of arbitrarily killing a US citizen on foreign soil, I don't see where the authorization to do so overrides the laws that would prohibit such actions within the US itself.
So this sounds like some President could go and send Hellfire missiles to the homes of suspected members of the Animal Liberation Front or any other such organization that could be considered armed and belligerent. It seems awfully dangerous for a President to say that he can kill US citizens all over the world because he has unilaterally put them an a kill list without approval of a judge or jury.
Isn't it illegal for the American government to condemn their citizens to death without a trial first?
Essentially, this action is the assassination of an American citizen. I realize that there has been a temporary security crisis for the past 10 years or so, but I don't think that states should have the right to eliminate citizens they feel are a threat without due process.
If he were killed in battle or while trying to escape, that's quite another thing. Don't get me wrong, I wouldn't miss the dirtbag, but I don't think allowing the executive this power is necessarily good for the cause of freedom.
"(Im confused by the phrase "special approval from the White House." Being a building and an inanimate object, I did not know that the White House was capable of giving out approvals. I will assume this means that President Obama gave this approval - why couldnt the author say this?)"
Oh for crying out loud, it's called <a href="http://en.wikipedia.org/wiki/Synecdoche">synecdoche</a>.
Heh. Consider the phrase "approved by the White House" as equivalent to the British use of 'the Privy council' or such like -- it's a bureaucratic technique to obtain deniability so the Press Sec can come out and say "What the President really meant..." or "the NSC exceeded its authority and the President rescinded that..."
Re: your questions...
1) Should be good worldwide, including in the US though it might be constrained there for public relations purposes.
2) Shouldn't be. Executive privilege. The Legislative and / or Judicial branches may differ and have mechanisms to enforce their differences. The system was designed so the Executive could act in an emergency and that ability should not be unduly constrained.
3) Not much; Possibly, though the whole 'war crimes' bit is becoming almost farcical.
There's a coterie of people and organizations that would really like to outlaw war and violence -- unless <i>they</i> okay it. They have not been successful and will not be but they will keep pecking away to no avail. Those same people tend to like large governments morphing into world government where they will be in charge...
That won't work, either.