USG Opinion on killing Anwar al-Awlaki: Part II

(Admiral Yamamoto's Mitsubishi G4M Betty after crashing in the Bougainville jungle on 18 Apr 43) 

Back at the beginning of this week, we looked at the international legal considerations of the killings of Anwar al-Awlaki and Samir Khan in Yemen last month. Glenn Greenwald of Salon.com characterises this as the "assassination of U.S. citizens without due process has now has become a reality"; Jack Goldsmith (an Assistant Attorney-General under Bush 43) instead favourably compares this with the 1943 targeting of Admiral Isoroku Yamamoto, the architect of the Japanese attack on Pearl Harbour.

In my view, both are mistaken because both make unfounded assertions over over what the controlling law is, as we looked in Part I. Addressing Goldsmith first, unless the US has decided that it is involved in an International Armed Conflict (IAC) with Al Qaeda in the Arabian Peninsula (AQAP), then the Yamamoto precedent is simply irrelevant, as the controlling law in these cases would be fundamentally different. It's hard to see how the US and AQAP could be engaged in an IAC, given that AQAP does not appear to control territory as a de facto government, nor does it enjoy at least the tacit support of a State in the way that AQ did under the Taliban prior to September 2001. 

Equally, to assert, as Greenwald does, that it is possible to take active participation in a conflict against the United States - and it is clear that al-Awlaki's video sermons incited violence against the United States and its allies - whilst retaining your full Constitutional rights as a citizen is self-evidently ridiculous, as it is the basest attempt to have your cake and eat it.

As there is no evidence suggesting that al-Awlaki was coerced into making these statements, so the correct constitutional parallel here is with 2nd Lieutenant Martin James Monti USAAC. Monti was the most prominent of the tiny number of American citizens opted by their own free volition to fight for Nazi Germany in WWII (an IAC)*. After going AWOL from India, stealing an aircraft in Italy, and then defecting to Nazi forces in northern Italy, Monti appears to have become a fully-fledged SS officer. He conducted propaganda broadcasts for the SS in 1944-45, and there is no suggestion that Monti was not an enemy combatant at this point, and that targeting him at this point would have been legal. This is without prejudice to that fact that Monti could - and indeed was - subsequently tried for treason, serving a jail term from 1948 until paroled in 1960.

The point here is that by choosing to become a combatant in either an IAC or a NIAC, then al-Awlaki could be targeted under international law for as long as he retained combatant status. 

 

(Warner Hemicycle: the graveyard of Prof. Dry's freshman Poli-Sci students who hadn't done their reading...)

But much had been written on the implications under US domestic law, I was uncertain, so I was delighted to have the chance to discuss this with Prof. Murray Dry, who had the misfortune to be my supervisor when I was a Middlebury undergraduate. Prof. Dry, (the Charles A. Dana Professor of Political Science at Middlebury), is an esteemed US Constitutional scholar, and I fully expected him to lay out an argument that I should've recalled from his classes, (and hadn't). Instead, he accepted the premise that it would be an absurdity to allow those fighting against the United States to have some sort of right to due process - and implicitly, judicial review - in the midst of a war they are fighting against the United States.

But the US Government memo - or the portions leaked to the New York Times - does not help matters, as it seems to confuse the issue as, 

"The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him." 

As discussed in Part I, this conflates the LOAC notions of the combatant-status ("taking part in the war") with the IHRL requirement to detain and try suspects for crimes, allowing the use of lethal force only in the most extreme cases where the suspect posed an immediate threat to the lives of others. This leaked paragraph, if accurate, does neither, and appears to mis-state the law. Of course, the legal advice could be entirely accurate, but we won't know until it is released.

(US Attorney General Eric H. Holder)

Which brings me the to the final point, which is also the primary point: the use of lethal force by a State in law enforcement usually results in some sort of public investigation in the western world; it is a key element of accountability mechanism, and builds trust in the decision-making processes that frequently require action first, and public consultation second. This is clearly different for the use of force under LOAC, but as the proliferation of official and NGO investigation organisations grows, we can see that there is unprecedented pressure to demonstrate that even in wartime, LOAC is consistently observed; but what is consistent is that standards for accountability are ever increasing.

So for the sake of transparency, and to demonstrate the legality of the approach, please publish the legal advice, Mr. Holder. And do so now, not when it has been drip-fed through convenient leaks.


* This was part of a Nazi plan to induce Allied POWs to fight against the Soviets, and it was spectacularly unsuccessful - around 60 British POWs joined the British element of the Waffen-SS, with at least some of the survivors court-martialed at war's end.

USG opinion on killing Anwar al Awlaki: Part I

(Our source of the legal advice. A good, but unsatisfactory, start.)

On Saturday, the NYT published an article on the legal advice that underpinned the US attack in Yemen that killed Anwar al-Awlaki and Samir Khan. Unfortunately, the advice itself is yet to be published, so we can only comment on the NYT's extracts, but this is nonetheless an interesting start. Clearly, the legal advice on so sensitive a topic should be released, even if the intelligence and intelligence methods that are operationally critical cannot be disclosed.

We are told that the Department of Justice (DOJ) advice runs to "roughly 50 pages"; this is not surprising, as it has to address a number of difficult issues in international law - both LOAC and IHRL - and US domestic law as both Awlaki and Khan were US citizens. The first key point on legality is the supremacy of international law over US domestic law in these cases, as irrespective of the US legal position, if an action was illegal under international law, it would be illegal, period. Of course, there could be circumstances under which an action is legal under international law and illegal under US law, in which case US law would govern US government actions; however, the supremacy of international law over (any State's) domestic law means that the converse cannot be true.

"Other assertions about Mr. Awlaki included that he was a leader of the group, which had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on trying to attack the United States again."

As this blog has rehearsed, the challenge in determining whether or not it is legal to use force against an individual in an international or non-international armed conflict (IAC or NIAC) is down to their combatant status, by ensuring that States do not attack civilians. As the "Basic Rule" in Article 48(1) of the 1st Additional Protocol 1977 (AP I) states concisely for IACs,

"... the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives."

For NIACs, discrimination is found in Article 13 of the 2nd Additional Protocol (AP II). Only if someone has combatant status - defined for IACs in Article 43 of AP I, and by implication in Article 13(3) of AP II for NIACs - can they be attacked. Only once combatant status in an IAC through membership or in a NIAC by Direct Participation in Hostilities is established can a targeting decision move on to the questions of military advantage, proportionality and humanity.

Hence the importance of establishing Mr Awlaki's status as a "cobelligerent" with AQ. However, this raises more questions than it answers, begging the question of what is the belligerent status or otherwise of AQ and the United States - the implication is that AQ is involved in a transnational IAC, but this is unstated.

(Not all law enforcement operations need to look like this....)

But then the NYT report says this:

"The lawyers were also told that capturing him alive among hostile armed allies might not be feasible if and when he were located."

Which is odd, because this is the language of law enforcement and human rights law - that we need to arrest criminals and that the use of lethal force (the most significant violation of UDHR Art 3 and ICCPR Art 6(1) Right to Life imaginable) is only legitimate when killing a suspect is the only way to avoid an imminent threat to the lives of others (eg suicide bombers). So did the US consider Awlaki an IAC or NIAC combatant or not? And if not, on what imminence grounds did it use lethal force?

The NYT again:

"The document’s authors argued that “imminent” risks could include those by an enemy leader who is in the business of attacking the United States whenever possible, even if he is not in the midst of launching an attack at the precise moment he is located."

If true, this is a troublingly expansive notion of imminence. Imminent threat to life in law enforcement practice has been understood to mean armed suicide bombers ready to detonate their bombs, or kidnappers holding a gun to the head of hostages. This is a million miles from someone who is "not in the midst of launching an attack at the precise moment he is located" - which is much more like the definition of an IAC combatant or a NIAC commander who is fulfilling a continuous combat function of an organised armed group, which brings us back to the key question of what type of conflict (if any) does the US believe it was engaged in with Mr. Awlaki?

Releasing the legal advice should answer this question. And only then we can discuss what the implications for US law are of killing US citizens in this manner.