SAID THE RED QUEEN

SAID THE RED QUEEN.

First, we don't kill all the lawyers.

Let's continue the examination of the lawfulness of the killings of American citizens Anwar al-Awlaki and Samir Khan I began in my post, Off With Their Heads! (Many comments there; Amygdala version here.

(That various other non-citizens, including Muhammad Salme al-Naaj and Abdul-Rahman bin Arfaj, and another several Yemenis, were killed is another debate, but they should not be forgotten, either.)

Consider the justifications presented for these killings:

#1: Did they commit "treason"?  Possibly so!

Sticking point: the U.S. Constitution says very clearly:

Section 3 - Treason
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

It's almost as if the drafters of the Constitution considered this!

Our Constitution specifically defines "treason" and the only way someone can be convicted of it.  As You Know, Bob (everyone), the U.S. Constitution is superior to U.S. laws, which can't violate the Constitution.  So al-Awlaki and Khan can't have been put to death because they committed "treason."

The President has taken an oath to uphold the Constitution.

#2: It was justified to kill them because of their propaganda and speech.

Unfortunately for this argument, the Constitution also rules it out with the little-known, obscure, First Amendment freedom of speech.

Let's move on to more serious arguments.

But first let's jump to the White House presenting its official response as press secretary Jay Carney explains, and is questioned by Jake Tapper (!) of ABC News:

Some quotes:

TAPPER: You said that al-Awlaki was “demonstrably and provably involved” in operations. Do you plan on demonstrating or proving –

CARNEY: I — Jake, you know, I should step back. I — he is clearly — I mean, “provably” may be a legal term. I think it has been well established, and it has certainly been the position of this administration and the previous administration, that he is a leader in — was a leader in AQAP; that AQAP was a definite threat, was operational, planned and carried out terrorist attacks that, fortunately, did not succeed but were extremely serious, including the ones specifically that I mentioned in terms of the would-be Christmas Day bombing in 2009 and the attempt to bomb numerous cargo planes headed for the United States; and that he was obviously also an active recruiter of al-Qaida terrorists. So I don’t think anybody in the field would dispute any of those assertions. 

TAPPER: You don’t think anybody else in the government would dispute them. 

CARNEY: I think any — well, I wouldn’t know of any credible terrorist expert who dispute the fact that he was a leader in al-Qaida in the Arabian Peninsula and that he was operationally involved in terrorist attacks against American interests and citizens.

In fact, all sorts of experts question whether he was "operationally involved" and so did the U.S. government. January 13, 2010:

[...] In fact, until last fall, most Yemenis had never heard of the American-born cleric living in their midst. Those most familiar with him were a small group of Western counterterrorism officials and experts — and even they thought al-Awlaki was of relatively little consequence. [...]  The Administration is trying to be careful in its assessment of al-Awlaki. Officials recognize that in demonizing a jihadist, they may create a monster they cannot control as the U.S. seemingly did in 2003 when it identified Abu Mousab al-Zarqawi as the top al-Qaeda leader in Iraq at a time when he was little more than a relatively obscure Jordanian terrorist operating north of Baghdad. The notoriety was a bonanza for al-Zarqawi, as mujahedin streamed to join his group. As for al-Awlaki, "the best way to describe him is inspirational rather than operational," says a senior U.S. official. But, as this official points out, "the inspirational element is motivating people to take action. Where do you draw the line?"

[...] What distinguishes al-Awlaki is not his record; other preachers have had demonstrably closer links to al-Qaeda and jihad. It is his target audience. Al-Awlaki aims his sermons at young Muslims mostly living in the U.S. and Britain. [...] Jarret Brachman, author of Global Jihadism: Theory and Practice and former director of research at West Point's Combating Terror Center [...] who monitors jihadist websites, reckons that al-Awlaki's sermons are "totally harmless nine times out of 10 ... but in the 10th, he starts to breathe a little fire." Much of the brimstone can be found in his blog posts, in which al-Awlaki states baldly that Islam and the West are in conflict and argues that all Muslims should join the holy war. [...] The exact nature of al-Awlaki's operational role remains in dispute. "There's nothing to suggest that he's sitting down and planning attacks," says Ben Venzke of IntelCenter, a private intelligence contractor. 

I can go on with endless cites casting doubt on his involvement in operations.

But back at the White House:

TAPPER: Do you plan on bringing before the public any proof of these charges? 

CARNEY: Again, this is — the question is — makes us – you know, has embedded within it assumptions about the circumstances of his death that I’m just not going to address.  

TAPPER: How on earth is it — what is — I really don’t understand. How — he’s dead.

CARNEY: You – 

TAPPER: You are asserting that he had operational control of the cargo plot and the Abdulmutallab plot. He’s now dead. 

CARNEY: Mm-hmm. 

TAPPER: Can you tell us or the American people — or has a judge been shown — ? 

CARNEY: Well, again, Jake, I’m just – 

TAPPER: How did – 

CARNEY: I’m not going to go any further than what I’ve said about the circumstances of his death and the case against them, which, again, you’re linking. And I think that – 

TAPPER: No, you said that he’s responsible for these things. I’m – 

CARNEY: Jake — yes. But again – 

TAPPER: Is there going to be any evidence presented?

CARNEY: You know, I don’t have anything for you on that. 

TAPPER: Do you not see at all — does the administration not see at all how a president asserting that he has the right to kill an American citizen without due process and that he’s not going to even explain why he thinks he has that right is troublesome to some people? 

CARNEY: I wasn’t aware of any of those things that you said actually happening. And again, I’m not going to address the circumstances of al-Awlaki’s death. I think it’s — again, it is an important fact that this terrorist, who was actively plotting – had plotted in the past and was actively plotting to attack Americans and American interests is dead. But I’m not going to, from any angle, discuss the circumstances of his death. 

Trust the King!

So does the President have this power under the AUMF?

Constitutional law professor Marty Lederman has the most authoritative analysis, starting by responding to the official explanations by Deputy National Security Advisor Jack Brennan:

[...] It’s evident that a principal purpose of this section of the speech concerning the use of force, especially outside the “hot battlefield” of the Af/Pak theater, is to further distance the Administration from the “Global War on Terror” framework that infected U.S. characterizations of our counterterrorism strategy shortly after September 11th.  ”[W]e are at war with al-Qa’ida,” emphasizes Brennan – not with all terrorists the world over. (Brennan explains that our “ongoing armed conflict with al-Qa’ida stems from our right—recognized under international law—to self defense.   

This is not news, or controversial.  See, e.g., U.N. Resolution 1373 (Sept. 28, 2001).  There is no such self-defense rationale available as a matter of the jus ad bellum with respect to all international terrorist groups.) 

But what about Brennan’s references, early in his speech, to al-Qaida “adherents” and “affiliates”?  Although Brennan explains that “adherents” of al-Qaida–including “individuals . . . with little or no contact with the group itself” – have become a serious national security challenge because they can and do conduct attacks in the United States, the U.S. is not at war with each of them.  That is to say, the U.S. is not resorting to the use of military force against them.  Brennan also points to the danger of al-Qaida “affiliates”; but he does not suggest that the U.S. practice is to use military force against all al-Qaida “affiliates,” either.  As the Administration’s recent National Strategy for Counterterrorism explained, “‘Affiliates’ is not a legal term of art.  Although it includes Associated Forces [i.e., cobelligerents of al-Qaida and the Taliban engaged in the conflict against the U.S., against whom force may be used], it additionally includes groups and individuals against whom the United States is not authorized to use force based on the authorities granted by the Authorization for the Use of Military Force. . . .  The use of ‘Affiliates’ . . . is intended to reflect a broader category of entities against whom the United States must bring various elements of national power, as appropriate and consistent with the law, to counter the threat they pose.”  In other words, military force is authorized against al-Qaida, the Taliban and their cobelligerents.  But the increasing threats from groups and individuals who are more loosely inspired by or affiliated with al-Qaida will appropriately be countered using other tools of counterterrorism strategies, apart from the use of force.

 This couldn't be more important.  The official U.S. position is that we are not at war with "al-Qaida 'adherents' and 'affiliates' simply because of that status.

So that claim flies out the window.

So how about that "worldwide battlefied" some assert?  What's the actual legal scope?
Lederman:

[...] Brennan then moves on to a matter about which “there is some disagreement”–namely, “the geographic scope of the [armed] conflict.”  [...] Brennan acknowledges that there are some in the international community—”including some of our closest allies and partners”–who take the view that the armed conflict with al Qaeda and its associated forces is limited “only to the ‘hot’ battlefields.” [...]  Brennan does not say that the armed conflict with al-Qaida is “global”–that it extends the world over.  But he does strongly imply what has been evident for some time, namely, that the U.S. believes the conflict extends at a minimum to locations (such as Yemen and Pakistan) from which enemy forces regularly plot and launch attacks against the U.S. 

Brennan’s primary point of emphasis, however, is that even in those locations, where the U.S. is of the view that the restrictions and immunities of “armed conflict” are in effect, it is not the Administration’s view that it can or should use lethal force without limitation:  ”That does not mean,” Brennan said, that “we can use military force whenever we want, wherever we want.” 

For one thing, “international legal principles, including respect for a state’s sovereignty and the laws of war, impose important constraints on our ability to act unilaterally—and on the way in which we can use force—in foreign territories.”  This is of a piece with the views repeatedly expressed by Harold Koh and others, as I explained here, that the Administration is committed to conducting the armed conflict in compliance with the laws of armed conflict, including Common Article 3 of the Geneva Conventions, fundamental customary law norms (e.g., the principles of distinction, proportionality, humanity and necessity), and, as Brennan stressed, norms of state sovereignty (including those in article 2(4) of the U.N. Charter), which generally prohibit the use of force in another sovereign state unless either that state consents, or the state’s government is “unwilling or unable to take the necessary actions” that are permitted to the U.S. under the doctrine of self-defense.

The official U.S. position naturally acknowledges there are strong legal limits to U.S. application of military force.  We can't "use military force whenever we want, wherever we want.”

What is a key limitation?  The threat must be imminent.

Claims that al-Awlaki and Khan presented an imminent threat of other than posting to YouTube, blogging, speaking, and writing, seem extremely shaky, at best.

[...] Well, as Brennan elaborates, even those allies who would deny the expanded scope of the armed conflict beyond “hot battlefields” agree with the U.S. that a nation may use force in self-defense against an entity or state that is “planning, engaging in, or threatening an armed attack against U.S. interests,” even outside of the “hot battlefield,” if the threat of such action is “imminent.”  

If.

[...] And Brennan explains that outside the “hot battlefields” the U.S. is not using force against enemy forces without discrimination among them, as it would be entitled to do in an armed conflict, but is instead hewing to what would be permissible if the U.S. were only acting on a self-defense theory, i.e., what would be permissible even in the absence of an armed conflict [...]

The U.S. government does not claim the whole world is a battlefield.  They carefully distinguish between the "hot battlefield" of Afghanistan, and elsewhere.
Moreover:

[...] First, Brennan’s speech intriguingly suggests that, at least in practice, U.S. use of force outside the “hot battlefield” may be even more restrictive than a traditional self-defense model would indicate.  He states that U.S. efforts in such locations “are focused on those individuals who are a threat to the United States, whose removal would cause a significant – even if only temporary – disruption of the plans and capabilities of al-Qa’ida and its associated forces.”

Deputy National Security Advisor Brennan also carefully stated:

[S]ome have suggested that we do not have a detention policy; that we prefer to kill suspected terrorists, rather than capture them.  This is absurd, and I want to take this opportunity to set the record straight. . . .  I want to be very clear—whenever it is possible to capture a suspected terrorist, it is the unqualified preference of the Administration to take custody of that individual so we can obtain information that is vital to the safety and security of the American people.  This is how our soldiers and counterterrorism professionals have been trained.  It is reflected in our rules of engagement.  And it is the clear and unambiguous policy of this Administration.

If it's possible to capture, policy is to do that: not kill.

Another argument favoring acting against al-Awaki and Khan was that the harboring nation was/is "unwilling or unable" to act.

The question of our relations with Yemen, President Saleh, and the mess that is Yemen would require at least another post, if not a series, and is gets into the practical question of just how badly the U.S. may be hurt by our military and political support for Saleh, in the wake of his massacres, and double-playing the U.S. arguably even more, or as much, as Pakistan, so I'll let that lie for now, but whether Yemen was "unwilling or unable" is both a very real legal question to argue, as well as whether we were wise to take this act.

Here's a little-spoken-of point:

Mostly lost in the debate over the legality of killing cleric Anwar al-Awlaki is a strange twist in U.S. law: While the Obama administration contends al-Awlaki's U.S. citizenship didn't prevent the CIA from targeting the alleged terror leader with a drone, the government didn't have the right to take away that citizenship. 

"It's interesting," State Department spokeswoman Victoria Nuland said at Friday's daily briefing amid a barrage of questions on the airstrike that killed al-Awlaki in Yemen. Nuland said she asked State Department lawyers whether the government can revoke a person's citizenship based on their affiliation with a foreign terrorist group, and it turned out there's no law on the books authorizing officials to do so. "An American can be stripped of citizenship for committing an act of high treason and being convicted in a court for that. But that was obviously not the case in this case," she said. "Under U.S. law, there are seven criteria under which you can strip somebody of citizenship, and none of those applied in this case."

But it's okay to kill citizens without judge, jury, trial, or even making public the legal memos asserting it's okay.

There seem to be strong reasons to consider that capturing al-Awlaki was possible:

[...] First, counterterrorism cooperation “with Yemeni security agencies improved significantly in recent months,” despite the deepening political crisis and spreading instability, according to U.S. and Yemeni officials. 

One report noted that Yemen had been allowing more drone flights, increasing the amount of information it provided the United States, and even allowed Americans to participate in interrogations of detained militants. 

Reportedly, it was information that Yemeni intelligence 00 obtained by interrogation - shared with the United States three weeks ago that led to Awlaki, who was reportedly given the code name Objective Troy. After two weeks of surveillance, Awlaki was killed by several Hellfire missiles while travelling in a Toyota pickup truck along with between three and six others, including American-born Samir Khan, and Muhammad Salme al-Naaj and Abdul-Rahman bin Arfaj, members of al Qaeda in the Arabian Peninsula (AQAP). That the United States actually improved counterterrorism cooperation with Yemen during President Ali Abdullah Saleh’s exile further undermines his long-standing claim that his rule is essential to fighting al Qaeda in his country. 

[...]  

While a CIA drone reportedly killed Awlaki, a number of other military assets were also involved in the operation. The Washington Post reported that Joint Special Operations Command drones “came across the Gulf of Aden from Djibouti.”  In addition, according to a CBS Evening News report, if the CIA drone missed Awlaki, “carrier jets flying from an amphibious carrier off the coast were ready,” and “there was even an option for sending in Marine Ospreys with special operations forces to collect any intelligence left after the strike. But that was never used.” 

Third, U.S. officials claimed that Awlaki had a much more “operational” role in AQAP after his death, than they had before. In the past two years, Awlaki had been described as “inspirational,” “charismatic,” an “effective communicator” who’s “internet presence magnifies the threat.” In May, FBI Direct Robert Mueller warned that Awlaki “has taken on a significance that he certainly did not have way back when.” Yet, most officials described him as not being intimately involved in operations, such as Leon Panetta, who testified to the Senate in June that “because he’s very computer oriented and as a result of that, really does represent the potential to try to urge others, particularly in this country, to conduct attacks here.”

Dropping USSOCOM troops, with air support, as we did with bin Laden, in a capture attempt, would seem to have been an option.  Perhaps al-Awlaki would have been killed in the attempt, but it's unclear why an attempt wasn't made.

In the end, what will be the results?

The killing of Al Qaeda leader Anwar al-Awlaki is unlikely to weaken the terror group’s determination to attack the United States, a new study released Monday said. 

While the death of Awlaki was a “tactical victory for the U.S. counterterrorism efforts,” the report by the U.S. Military Academy’s Combating Terrorism Center says it is “unlikely to impact AQAP’s [Al Qaeda in the Arabian Peninsula’s] operations in Yemen or its desire to attack the interests of the United States.”  

Instead, the real key to eliminating Al Qaeda’s viability in Yemen and crushing its ability to attack the U.S. lies in removing its Yemeni leaders, including Nasir al-Wahayshi, who are responsible for the group’s operational coherence.  

The study warned that by ignoring the local dynamics in Yemen when calculating AQAP’s capabilities, the U.S. risks miscalculating the effectiveness of military action and inflaming anti-American sentiment.  

The report also said America’s counterterrorism policy must include a complete assessment of the challenges and limitations AQAP faces in Yemen.  

And while a more representative Yemeni government or the fall of President Ali Abdullah Saleh is unlikely to have a significant short-term impact on AQAP’s ability to attack the U.S., “a more accountable and transparent Yemeni government presents a serious strategic challenge to the group’s long-term survival,” the report said.  

The center’s study was based a year of fieldwork completed from 2008 to 2009 by the author, whose name was withheld from the report, and written before the killing of Awlaki. 

And Ali Abdullah Saleh continues on, despite his endless manipulations of the U.S., claiming to be the only defense against al Qaeda In The Arab Peninsula until he inevitably falls.

And after all his U.S. ties and support, most Yemenis will hate the United States even more.

Won't that help?

Cross-posted at Obsidian Wings.