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Jonathan Hafetz
Jonathan Hafetz
Jonathan Hafetz is a professor at Seton Hall Law School.
Targeted killing and the 'War on Terror'
The CIA's extrajudicial killing of Anwar al-Awlaki raise troubling legal questions.
Last Modified: 19 Oct 2011 19:15
A secret US memo authorised the killing of radical cleric Anwar al-Awlaki for his alleged role in an al-Qaeda affiliate [EPA]

The United States' recent killing of Anwar al-Awlaki in Yemen has prompted renewed debate over the CIA's predator drone programme. That the US government asserts the right to eliminate a terrorism suspect far from any active theatre of war may seem striking, particularly when that suspect is an American citizen. But it is hardly a novel claim. The US position on targeted killing instead reflects the logical culmination of its counter-terrorism policies during the past decade.

As thresholds matter, the secrecy surrounding Awlaki's killing shows a troubling parallel to the type of secrecy on national security matters that existed during the Bush administration. President Obama has yet to disclose the Office of Legal Counsel (OLC) memo that, according to press accounts, justified killing Awlaki. As the New York City Bar Association explained in a recent letter, the rule of law requires that the United States provide "a through and transparent legal analysis" of its position on targeted killings. While some information contained in the OLC memo might need to be redacted to protect sensitive information, the memo's legal reasoning should be disclosed. 

The administration has, to be sure, provided a summary description of its position on targeted killing. Two top administration officials - State Department Legal Advisor Harold H Koh and senior counter-terrorism advisor John Brennan - have both addressed the subject in public speeches. But their general remarks, however thoughtful, are no substitute for the full analysis contained in the legal memo. 

Other details have emerged from government leaks to the press. The New York Times' Charlie Savage recently published an account of the OLC memo, as related to him by anonymous government officials. Savage reports that the memo, which totals approximately 50 pages and followed months of interagency deliberations, was drafted to assess the legality of killing an American citizen such as Awlaki. Such second-hand accounts, however, are necessarily selective and incomplete. They depend on whatever information the reporter's source deems appropriate to share, which is then filtered through the reporter. An OLC memo should provide a balanced legal analysis; leaked accounts, by contrast, inevitably give the administration's best points while discounting or ignoring counter-arguments.

Fair game

A full assessment of the administration's position on targeted killing must therefore await release of the memo. Yet, the information currently in the public domain does allow us to draw some conclusions.

As reported, the memo determined that Awlaki could be killed by the United States if he could not be feasibly captured because he was taking part in the war between the United States and al-Qaeda. The memo further concluded that Awlaki posed a significant threat to the United States and that Yemeni authorities were unable or unwilling to stop him.

The war against al-Qaeda, the memo reasoned, was not limited to traditional battlefields like Afghanistan. Nor for that matter was it limited to al-Qaeda itself. Instead, the memo explains, the war extends to "associated forces", such as al-Qaeda in the Arabian Peninsula (AQAP), the organisation in which Awlaki allegedly played a leading role. By analogising the drone strike on Awlaki to the killing of an enemy soldier in a traditional war, the memo avoids a series of potential prohibitions, including an executive order banning assassinations and a federal statute prohibiting Americans from murdering other Americans abroad.

Despite President Obama's rhetoric of change, the memo highlights important continuities in US counter-terrorism policy since 9/11. Like Bush, Obama has adopted the framework of a global "war on terror", even as he has abandoned the phrase. In this war, the United States may target terrorism suspects located far from any battlefield when those individuals pose an "imminent threat" - a term, the New York Times article suggests, that the government appears to define loosely.

The rationale for targeted killing mirrors the Obama administration's justification for the indefinite detention of prisoners at Guantanamo Bay. The administration argues that it may detain members and supporters of al-Qaeda, just as the United States held German and Japanese as prisoners of war during World War II. The same logic lies behind targeted killings - only there, the United States claims that it may use deadly force against at least some al-Qaeda members where capture and detention is not feasible.

Constitutional violations

Criticisms of the Obama administration have focused heavily on Awlaki's American citizenship. A New York Times editorial, for example, called the OLC memo an "insufficient foundation for a momentous decision by the government to kill one of its citizens, no matter how dangerous a threat he was believed to be".

Awlaki's citizenship should not be ignored. US citizens are owed certain obligations by their government, including protecting them from harm. The Awlaki case seems to calls those protections into question.

American citizens are also understood to have constitutional rights, regardless of where they are located. By contrast, the extent to which non-citizens outside the United States are protected by the constitution remains an open question. In approving Awlaki's killing, the administration thus necessarily determined that targeted killing was constitutional, notwithstanding the constitution's prohibition against depriving a person of life without due process of law.

Focussing only on citizenship, however, obscures larger concerns about targeted killing. The United States' increasing use of Predator drones predominantly affects non-citizens. Tethering criticism of targeted killing to its potential impact on a relatively small number of US citizens suggests that the killing of non-citizens - whether as targets or as collateral damage - poses no problem. This asymmetrical approach to the rights of non-citizens legitimates criticisms of the United States as an imperial power concerned only with furthering its own interests, regardless of the costs to others.

Furthermore, the legal analysis of targeted killings under international law does not vary based on the target's citizenship. As numerous scholars have argued, targeted killing is problematic under the international law of war. Notre Dame Law School professor Mary Ellen O'Connell, for example, has described the US position on targeted killing as "illegal, immoral, and dangerous".

Far-reaching powers

One problem lies in the United States' expansive view of war itself. While there is still an armed conflict in Afghanistan, there is no armed conflict in Yemen. The US position, however, rests not on a target's connection to the Afghan conflict, but rather to an amorphous, global, armed conflict against al-Qaeda and "associated groups" - a conflict that, conveniently, has proven sufficiently malleable to accompany the shifting focus of US counter-terrorism operations from Afghanistan and Iraq to Yemen and the Horn of Africa. The distinction is important because outside of armed conflict, peacetime law applies and prohibits extrajudicial killing absent exceptional circumstances.

Also, targeting rules differ depending on the type of armed conflict in which a nation is engaged. In a traditional, state-versus-state conflict (known as international armed conflict), one state may kill a member of an opposing state's armed forces even when that person is not on the battlefield. But in an armed conflict against a non-state actor (known as a non-international armed conflict), states are more constrained in their ability to kill opponents. As Melbourne Law School professor Kevin John Heller explains, in a non-international armed conflict the target must either be a civilian who is directly participating in hostilities or an individual who exercises a "continuous combat function" in the terrorist group. The mere fact that the United States believes an individual is dangerous is insufficient.

These distinctions are not mere technicalities, but have potentially far-reaching implications for human rights and global stability. The United States may think it can wield its targeted killing power wisely. The American public, for its part, may care little for legal niceties when it hears that their government has eliminated individuals like Awlaki, who allegedly inspired several terrorist plots against the United States through his fiery sermons. But such thinking is shortsighted.

The US targeted killing policy encourages other states to expand their counter-terrorism operations in similar ways - ways that might seem less attractive when the same principles are invoked in different contexts. The United States, for example, might feel differently if Russia were to target Chechen rebels in Georgia, or if India were to target Pakistani-backed forces in Kashmir.

Targeted killing, moreover, illustrates how US concerns about terrorism seem to justify any means deemed necessary to improving security. A similar dynamic helps explain the United States' resort to torture in the interrogation of detainees after 9/11 - a decision whose consequences will continue to be felt for years to come, even if most controversial methods, such as waterboarding, have been abandoned. This is not to equate current US targeted killing policy with the US torture programme under the Bush administration, which was based on a calculated attempt to circumvent the law. Rather, it is to suggest how the war on terrorism can twist the law so that it accommodates the government's never-ceasing demand for new powers to counter the terrorist threat.

Jonathan Hafetz is a professor at Seton Hall Law School and the author most recently of Habeas Corpus after 9/11: Confronting America's New Global Detention System (NYU Press 2011).

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

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