Al-Aulaqi v. Obama: When Does the President Have the Legal Authority to Target a U.S. Citizen? Prof. Robert F. Turner, SJD Center for National Security Law University of Virginia School of Law Columbia Law School Federalist Society September 20, 2010 Is President Obama Another “George W. Bush”? Is President Obama Another George W. Bush? Presidential signing statements Is President Obama Another George W. Bush? Presidential signing statements State Secrets Privilege Is President Obama Another George W. Bush? Presidential signing statements Wartime “surge” State Secrets Privilege Is President Obama Another George W. Bush? Presidential signing statements Wartime “surge” State Secrets Privilege Detention without trial Is President Obama Another George W. Bush? Presidential signing statements State Secrets Privilege Extrajudicia l “targeted killings” Wartime “surge” Detention without trial Is President Obama Another George W. Bush? I’m only going to focus on the last of these right now, but I Presidential State will be happy to address signing Secrets these other issues during statements Privilege Q&A or after the program. Extrajudicia l “targeted killings” Wartime “surge” Detention without trial Is President Obama Another George W. Bush? I’m only going to focus on the last of these but I Presidential State In his first yearright in now, office, will be happy to address signing Secrets President Obama these other issues during statements Privilege authorized more Q&A or after the program. Extrajudicia Predator drone strikes “targeted than Bush did l in 8 killings” years. Wartime “surge” Detention without trial Unmanned Drones and “Targeted Killings” Al-Aulaqi v. Obama [filed 30 August 2010] Lawsuit filed in DC District Court on behalf of Yemeni father of U.S.born Anwar Al-Aulaqi, who is reported by the media to be on a list of al Qaeda members who may be killed on sight. When Does the President Have the Legal Authority to Target a U.S. Citizen? Lethal force may be used against wrongdoers to protect human life under U.S. law governing self defense and defense of others. When Does the President Have the Legal Authority to Target a U.S. Citizen? Lethal force may be used against That’s why the wrongdoers to protect human life under FBIlawhas hostage U.S. governing self defense and rescue defense of units others. with trained snipers. When Does the President Have the Legal Authority to Target a U.S. Citizen? Lethal force may be used during armed conflict when he is fulfilling his role as Commander in Chief to defeat the enemy and an American has elected to join the enemy force. When Does the President Have the Legal Authority to Target a U.S. Citizen? If one of the 9/11 hijackers had been a known American citizen, that would not have immunized the plane from attack to prevent it from flying into the South Tower of the WTC, the White House or Capitol Building. Who is Anwar Al-Aulaqi? Who is Anwar Al-Aulaqi? 9/11 Report links him to two of the hijackers of American Airline Flight 77 Who184 is innocent Anwar Al-Aulaqi? people died when that plane flew into the Pentagon. 9/11 Report links him to two of the hijackers of American Airline Flight 77 Who184 is innocent Anwar Al-Aulaqi? people died when that plane flew into The hijackers spent the Pentagon. many hours alone with al-Awlaki in San Diego before the attacks of 9/11. 9/11 Report links him to two of the hijackers of American Airline Flight 77 Who184 is innocent Anwar Al-Aulaqi? people died when thatisplane flew into to There good reason The hijackers spent thebelieve Pentagon. Awlaki at least had many hours alone with advance knowledge of the al-Awlaki in San Diego 9/11 attacks. before the attacks of 9/11. 9/11 Report links him to two of the hijackers of American Airline Flight 77 Who is Anwar Al-Aulaqi? Maj. Nidal Hasan Ft. Hood 9/11 Report ties him to two of the hijackers of American Airline Flight 77 Murdered 13, Who is Anwar Al-Aulaqi? wounded 30 Maj. Nidal Hasan Ft. Hood 9/11 Report ties him to two of the hijackers of American Airline Flight 77 Murdered 13, Who is Anwar Al-Aulaqi? wounded 30 Maj. Nidal Hasan Ft. Hood Al-Awlaki told Hasan killing civiliansties was 9/11 Report and himpermissible to two of the later praised his hijackers of attack. American Airline Flight 77 Murdered 13, Who is Anwar Al-Aulaqi? wounded 30 In March 2010, al-Awlaki released a tape denouncing President Obama for trying “to portray theMaj. Nidal Hasan operation of brother Nidal Hasan Ft. Hood toldact of violence as Al-Awlaki an individual Hasan killing individual. . . . from an estranged civilians was the Until this moment 9/11 Report ties permissible and administration is refusing to him to two of the later praised his exchanged release the e-mails hijackers of attack. between myself and Nidal.” American Airline Flight 77 Who is Anwar Al-Aulaqi? Umar Farouk Abdulmutallab Christmas Day Bomber 9/11 Report ties him to two of the hijackers of American Airline Flight 77 Maj. Nidal Hasan Ft. Hood Reportedly said alAwlaki was “one of his al Qaeda trainers” in planning the attack. Who is Anwar Al-Aulaqi? Umar Farouk Abdulmutallab Christmas Day Bomber 9/11 Report ties him to two of the hijackers of American Airline Flight 77 Maj. Nidal Hasan Ft. Hood Reportedly said alAwlaki was “one of his “al Qaeda trainers” in planning the attack. Who is Anwar Al-Aulaqi? Umar Farouk Abdulmutallab Maj. Nidal Hasan Christmas Yemini official said Christmas Ft. Hood Day Bomber bomber Abdulmutallab was trained and equipped with explosives in a house in 9/11 Report ties Yemen “built by al-Awlaki.” him to two of the hijackers of American Airline Flight 77 Who is Anwar Al-Aulaqi? Umar Farouk Abdulmutallab Christmas Day Bomber 9/11 Report ties him to two of the hijackers of American Airline Flight 77 Maj. Nidal Hasan Ft. Hood Faisal Shahzad Time Square Bomber Who is Anwar Al-Aulaqi? Umar Farouk Abdulmutallab Christmas Day Bomber 9/11 Report ties him to two of the hijackers of American Airline Flight 77 Shahzad said alAwlaki was his “inspiration” for the planned Maj. Nidal Hasan attack. Ft. Hood Faisal Shahzad Time Square Bomber Who is Anwar Al-Aulaqi? “I pray that Allah destroys America and all its allies.” - Anwar al-Aulaqi February 2009 Who is Anwar Al-Aulaqi? Oh – while he isn’t big on successful women (he won’t shake hands), he has several arrests for prostitution. Who is Anwar Al-Aulaqi? Umar Farouk Abdulmutallab Christmas Day Bomber “… terrorist Maj. Nidal Hasan Hood numberFt.one.” - Rep. Jane Harmon (D-CA) House Permanent Select Committee on Intelligence 9/11 Report ties him to two of the hijackers of American Airline Flight 77 Faisal Shahzad Time Square Bomber Al-Aulaqi v. Obama [filed 30 August 2010] The central theme to the case is that alAulaqi is hiding in Yemen, which is “far from any field of armed conflict.” Indeed, the language “outside of armed conflict” is used at least a dozen times in 11 pages. The Complaint says: “The United States is not at war with Yemen, or within it.” Fundamental Question Is the United States engaged in a “war” or “armed conflict” with al Qaeda and its allies? Fundamental Question Is United States Whothe has authority to make that decision? engaged in a “war” or The UN Security Council? “armed conflict” with NATO Congress al Qaeda and its The President The U.S.allies? Supreme Court Fundamental Question Is United States Whothe has authority to make that decision? . . . or is it the engaged in a “war” or The UN Security Council? “armed conflict” with NATO Congress al Qaeda and its The President The U.S.allies? Supreme Court America is at war and may legally TheSecurity UNenemy Security Council1373for the detain combatants Council Resolution (Sept. 12,is 2001) recognized this an Armed duration of hostilities Conflict.declared that the 9/11 attacks Unanimously AUMF 18 Sept. 2001 Public Law 107-40 [S.J. constituted “a threat to international peace and Res. 23] Congress authorized theright useofof security” and reaffirmed “the inherent military force under the War Powers individual or collective self-defence as Resolution; recognized by the Charter of the United Nations Both Presidents Bush and Obama have . . . .” repeatedly confirmed American is at “war.” Supreme Court has said LOAC applies (Hamdi, Hamdan) and it is lawful to detain enemy combatants without trial for the duration of the conflict. UN Security Council Resolution 1368 Sept. 12, 2001 “The Security Council, Reaffirming the principles and purposes of the Charter of the United Nations, Determined to combat by all means threats to international peace and security caused by terrorist acts, Recognizing the inherent right of individual or collective self-defence in accordance with the Charter . . . . UN Security Council Resolution 1368 Sept. 12, 2001 “The Security Council, ARTICLE 51 Reaffirming theinprinciples purposes of the “Nothing the presentand Charter shall impair What does the UN Charter of the United the inherent right ofNations, individual or collective Charter actually say self-defence if an armed attack occurs threats Determined to combat by all means about the right of against a Member of theand United Nations, caused until to international security “individual peace and collective the Security Council has taken measures self-defence?” by terrorist acts, necessary to maintain international peace and security.” Recognizing the inherent right of individual or collective self-defence in accordance with the Charter . . . . UN Security Council Resolution 1368 Sept. 12, 2001 “The Security Council, ARTICLE 51 Reaffirming theinprinciples purposes of the “Nothing the presentand Charter shall impair Charter the United the of inherent right ofNations, individual or collective self-defence if an armed occurs threats Determined to combat by attack all means against a Member of theand United Nations, caused until to international peace security the Security Council has taken measures by terrorist acts, necessary to maintain international peace and security.” Recognizing the inherent right of individual or collective self-defence in accordance with the Charter . . . . UN Security Council Resolution 1368 Sept. 12, 2001 “if an armed “The Security Council,attack occurs” ARTICLE 51 Reaffirming theinprinciples purposes of the “Nothing the presentand Charter shall impair Charter the United the of inherent right ofNations, individual or collective self-defence if an armed occurs threats Determined to combat byattack all means against a Member of theand United Nations, caused until to international peace security the Security Council has taken measures by terrorist acts, necessary to maintain international peace and security.” Recognizing the inherent right of individual or collective self-defence in accordance with the Charter . . . . UN Security Council Resolution 1368 Sept. 12, 2001 In Resolution 1373 (28 Sept. 2001), the Council declared that the 9/11 “The SecuritySecurity Council, attacks “constitute a threat to international Reaffirming the principles and purposes of the peace and security,” and reaffirmed “the Charter of the United inherent rightNations, of individual or collective This is language of the bythreats asby . . .all recognized the Determinedself-defence to combat means Charter of the UnitedConflict, Nations . . . .” Law of Armed to international peace and security caused law enforcement. by terrorist not acts, Recognizing the inherent right of individual or collective self-defence in accordance with the Charter . . . . UN Security Council Resolution 1368 Sept. 12, 2001 In Resolution 1373 (28 Sept. 2001), the Council declared that all acts of “The SecuritySecurity Council, international terrorism “constitute a threat to Reaffirming the principles and and purposes ofand the international peace security,” This is language the Charter of the United Nations, reaffirmed “the inherent of right of individual or This isself-defence language of. .the Law of Armed Conflict, as . recognized by Determinedcollective to combat by all means threats the Charter of the United Nations . . . .” Law of Armed Conflict, not “law enforcement.” to international peace and security caused law enforcement. by terrorist not acts, Recognizing the inherent right of individual or collective self-defence in accordance with the Charter . . . . America is at war and may legally detain enemy the Also on September 12, combatants 2001, the North for Security Council Resolution 1373 (Sept. 12, 2001) Atlantic Council formally invoked Article 5 of duration of hostilities the NATO Treaty, which provides: Unanimously declared the 9/11 AUMF 18 Sept. 2001that Public Lawattacks 107-40 [S.J. constituted “aagree threatthat toauthorized international peace “The Parties an armed attack Res. 23] Congress the useand of security”one andorreaffirmed “the inherent right of against more of them Europe or military force under the WarinPowers Resolution; individual or collective North America shall beself-defence consideredas an Both Presidents Bush Obama have recognized by them the Charter United Nations attack against all . . and .of.”the repeatedly confirmed American is at “war.” . . . .” THIS WAS THE OF (Hamdi, Supreme Court hasLANGUAGE said LOAC applies Hamdan) it is lawful to detain enemy ARMEDand CONFLICT AND NOT LAW combatants without trial for the duration of the ENFORCEMENT. conflict. America is at war and may legally detain enemy the Also on September 12, combatants 2001, the North for Security Council Resolution 1373 (Sept. 12, 2001) Atlantic Council formally invoked Article 5 of duration of hostilities the NATO Treaty, which provides: Unanimously declared the 9/11 AUMF 18 Sept. 2001that Public Lawattacks 107-40 [S.J. Oncethat again, language of constituted “a threat to international peace “The Parties agree an armed attack Res. 23] Congress authorized the useand of the Law of Armed Conflict security”one andorreaffirmed “the inherent right of against more of them inPowers Europe or military force under the War Resolution; and “law individual or collective North America shallnot beself-defence consideredas an enforcement.” Both Presidents Bush Obama have recognized by them the Charter United Nations attack against all . . and .of.”the repeatedly confirmed American is at “war.” . . . .” THIS WAS THE OF (Hamdi, Supreme Court hasLANGUAGE said LOAC applies Hamdan) it is lawful to detain enemy ARMEDand CONFLICT AND NOT LAW combatants without trial for the duration of the ENFORCEMENT. conflict. Congress Has Formally Authorized the Use of Military Force Authorization for Use of Military Force September 18, 2001 • Public Law 107-40 [S. J. RES. 23] “SEC. 2. . . . [T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Authorization for Use of Military Force September 18, 2001 • Public Law 107-40 [S. J. RES. 23] “SEC. 2. . . . [T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, Thecommitted, or aided the terrorist attacks that occurred on September 11, 2001, or combined harbored such organizations or persons,vote in order to prevent any was future acts of international terrorism against the United States by such nations, organizations or persons.” 518-1 The President (both Bush and Obama) has recognized America is at “War” America is at war and may legally detain enemy combatants for the durationOn of September hostilitiesthe 11th, enemies of UNSC Res 1368 affirmed the right of ‘self-defence” (language of armed conflict); freedom committed NATO declared this wasan an act “armed of attack” war under Article 5 of the treaty; against our country. Public Law 107-40 [S. J. RES. 23] Congress authorized the use of military force under the War Powers -President Bush Resolution; Sept. 20, 2001 Both Bush and Obama administrations have said we are in a “war.” Supreme Court has said LOAC applies (Hamdi, Hamdan) This is not the “War on Poverty.” America is at war and may legally detain enemy combatants for the duration of hostilities “We are at Thiswar is not . . . .” UNSC Res 1368 affirmed the right of ‘self-defence” (language of armed conflict); NATO declared this was an “armed attack” under Article 5 of the treaty; Public Law 107-40 [S. J. RES. 23] Congress authorized -President Obama the use of military force under the War Powers Jan. 7, 2010 Resolution; the “War on Poverty.” Both Bush and Obama administrations have said we are in a “war.” Supreme Court has said LOAC applies (Hamdi, Hamdan) The Supreme Court Has Recognized America is Engaged in Armed Conflict The Supreme Court has repeatedly said LOAC applies (e.g., Hamdi, Hamdan) in the armed conflict with al Qaeda and its allies. Harold Koh 2010 Meeting of the American Society of International Law (25 March 2010) “[I]n this ongoing armed conflict, the United States has the authority under international law . . . to use force, including lethal force, to defend itself, including by targeting persons such as high-level alQaeda leaders who are planning attacks.” Harold Koh 2010 Meeting of the American Society of International Law (25 March 2010) “[S[ome] have suggested the very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and therefore lawful targets under international law.” Harold Koh 2010 Meeting of the American Society of International Law (25 March 2010) “[S[ome] 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.” Harold Koh 2010 Meeting of the American Society of Note Dean Koh 2010) draws a International Law (25 March distinction between the rights “[S[ome] have argued that the use of armed lethal conflict force of states during against specific individuals to provide and thefails additional and distinct adequate process and thus constitutes unlawful right of self-defense. 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.” Harold Koh 2010 Meeting of the American Society of Note Dean Koh 2010) draws a International Law (25 March distinction between the rights Dean Koh’sthat view, terrorists “[S[ome]Inhave argued the use of armed lethal conflict force of states during targeted from of to provide against specificfar individuals andareas thefails additional and distinct ongoing armed conflict can adequate process and thus constitutes unlawful right of self-defense. extrajudicial Butasaacts stateofthat best bekilling. justified self-is engaged in an armed conflict or in legitimate self-defense defense. is not required to provide targets with legal process before the state may use lethal force.” Harold Koh 2010 Meeting of the American Society of Note Dean Koh 2010) draws a International Law (25 March distinction between the rights Inhave Deanargued Koh’s view, terrorists “[S[ome] that the use of armed lethal conflict force of states during against specific targeted farindividuals fromand areas of to provide thefails additional and distinct adequate process and thus constitutes unlawful right of self-defense. ongoing armed conflict can extrajudicial state best be killing. justifiedBut as aacts of that self-is engaged in an defense. armed conflict or in legitimate self-defense is not required to provide targets with legal I don’t disagree, thinklethal force.” process before the statebut mayI use they can also be targeted under the LOAC. America is at war and may legally detain enemy combatants the That same day, the North Atlantic Council for Security Council Resolution 1373 The ACLU President Bush (Sept. 12, 2001) formally invoked Article 5 of the NATO Treaty:Obama duration engaged of hostilities Is America Anwar Al-Aulaqi’s President father. U.S. House (420-1) in armed conflict Unanimously declared that the 9/11 attacks U.S. Senate [S.J. (98-0) “The Parties agree that an armed attack AUMF 18an Sept. 2001 Public Law 107-40 This is not The Supreme Court constituted “a threat to international peace against one oral more of them its in Europe orand Res. 23] Congress authorized the use of with Qaeda, UN Security security” and reaffirmed “the inherent right of Council North America shall be considered an militarymembers force the under and the War Powers Resolution; NATO “War on allies? individual or collective as attack against them allself-defence . . . .” Harold Koh Both Presidents Bush and Obama have recognized by the Charter of the United Nations repeatedly confirmed . . . .” YOU BE THEAmerican JUDGEis! at “war.” THIS WAS THE OF (Hamdi, Supreme Court hasLANGUAGE said LOAC applies Hamdan) it is lawful to detain enemy ARMEDand CONFLICT AND NOT LAW combatants without trial for the duration of the ENFORCEMENT. conflict. Poverty.” America is at war and may legally detain enemy combatants the That same day, the North Atlantic Council for Security Council Resolution 1373 The ACLU President Bush (Sept. 12, 2001) formally invoked Article 5 of the NATO Treaty:Obama duration of hostilities Anwar Al-Aulaqi’s President U.S. House (420-1) Unanimously declared 9/11 attacks U.S. Senate [S.J. (98-0) “The Parties agree thatthat an the armed attack AUMF 18 Sept. 2001 Public Law 107-40 Laws The Supreme Court Enforcement constituted “a to international peace against orthreat more of them in Europe orand Res. 23]one Congress authorized the use of UN Security security” and reaffirmed “the War inherent right of Council North America shall be considered an military force under the War Powers NATO Resolution; individual or collective as attack against them allself-defence . . . .” Harold Koh father. This is not the “War on Both Presidents Bush and Obama have recognized by the Charter of the United Nations Poverty.” repeatedly confirmed . . . .” YOU BE THEAmerican JUDGEis! at “war.” THIS WAS THE OF (Hamdi, Supreme Court hasLANGUAGE said LOAC applies Hamdan) it is lawful to detain enemy ARMEDand CONFLICT AND NOT LAW combatants without trial for the duration of the ENFORCEMENT. conflict. America is at war and may legally detain enemy combatants the That same day, the North Atlantic Council for Security Council Resolution 1373 (Sept.512, formally invoked Article of2001) the NATO Treaty: duration of hostilities This is not the “War on Poverty.” Unanimously declared 9/11 attacks “The Parties agree thatthat an the armed attack AUMF 18 Sept. 2001 Public Law 107-40 [S.J. constituted “a international peace against orthreat more to of them in Europe orand Res. 23]one Congress authorized the use of security” and reaffirmed “the inherentan right of North America shall be considered military force under the War Powers Resolution; individual or collective as attack against them allself-defence . . . .” Both Presidents Bush and Obama have recognized by the Charter of the United Nations repeatedly confirmed American is at “war.” . . . .” THIS WAS THE OF (Hamdi, Supreme Court hasLANGUAGE said LOAC applies Hamdan) it is lawful to detain enemy ARMEDand CONFLICT AND NOT LAW combatants without trial for the duration of the ENFORCEMENT. conflict. Old Thinking About “Battlefields” and Armed Conflict Old Thinking There was a time when soldiers would routinely mass on opposite sides of a “battlefield” and charge towards each other until one side retreated or had been destroyed. Old Thinking Old Thinking Where Is the “Battlefield” in the Struggle Against al Qaeda? Where Is the “Battlefield” in the Struggle Against al Qaeda? In June 1996 it was in Saudi Arabia. Where Is the “Battlefield” in the Struggle Against al Qaeda? In August 1998 it was in Kenya Where Is the “Battlefield” .in. the . and Struggle Against al Qaeda? Tanzania Where Is the “Battlefield” in the Struggle Against al Qaeda? Where Is the “Battlefield” in the Struggle Against al Qaeda? The U.S.S. Cole was attacked in October 2000 in Yemen. Where Is the “Battlefield” in the Struggle Against al Qaeda? Anyone who says there is not a The U.S.S. Cole “war” going on in Yemen is out was attacked in of touch with reality. October 2000 in Yemen. Where Is the “Battlefield” in the Struggle Against al Qaeda? Anyone who says there is not a The U.S.S. Cole “war” going on in Yemen is out was attacked in of touch with reality. October 2000 in Yemen. Where Is the “Battlefield” in the Struggle Against al Qaeda? Anyone who says there is not a The U.S.S. Cole “war” going on in Yemen is out was attacked in of touch with reality. October 2000 in Our assistance to the Government of Yemen Yemen. against al Qaeda is by CONSENT and thus fully lawful under international law. Where Is the “Battlefield” in the Struggle Against al Qaeda? Where Is the “Battlefield” in the Struggle Against al Qaeda? In 2001 it was here in New York City Where Is the “Battlefield” in the Struggle Against al Qaeda? Where Is the “Battlefield” in the Struggle Against al Qaeda? Quick Hypothetical: Where Is the “Battlefield” in the Struggle Against al Qaeda? Quick Hypothetical: You are the NSC Legal Adviser and have just been told United Flight 175 is about to hit the south tower with more than 50 American citizens on board. Where Is the “Battlefield” in the Struggle Against al Qaeda? Do you tell the President New York City is not a Quick Hypothetical: You are the NSC Legal“battlefield” Adviser and and have he justcan’t order the “extrajudicial been told United Flight 175 is of American about to hitkilling” the south tower with more thancitizens? 50 American citizens on board. Where Is the “Battlefield” in the Struggle Against al Qaeda? Do you tell the President New York City is not a While you are on Quick Hypothetical: You are the “battlefield” and he can’t NSC Legal Adviser and have just hold trying to get a order the “extrajudicial been told United Flight 175 is legal opinion from of American about to hitkilling” the south tower with themore ACLU .50. .American . thancitizens? citizens on board. Where Is the “Battlefield” in the Struggle Against al Qaeda? Do you tell the President New York City is not a . . . or to get While you are on Quick Hypothetical: You are the “battlefield” and he can’t NSC Legal Adviser and have just through hold trying to get ato a order the “extrajudicial been told United Flight 175 is legal opinion from judge ... of American about federal to hitkilling” the south tower with themore ACLU .50. .American . thancitizens? citizens on board. Where Is the “Battlefield” in the Struggle Against al Qaeda? Do you tell the President New York City is not a . . . or to get While you are on Quick Hypothetical: You are the “battlefield” and he can’t NSC Legal Adviser and have just through hold trying to get ato a order the “extrajudicial been told United Flight 175 is legal opinion from Time judge runs . . out! . of American about federal to hitkilling” the south tower with themore ACLU .50. .American . thancitizens? citizens on board. Where Is the “Battlefield” in the Struggle Against al Qaeda? Do you tell the President New York City is not a . . . or to get While you are on Quick Hypothetical: You are the “battlefield” and he can’t NSC Legal Adviser and have just through hold trying to get ato a order the “extrajudicial been told United Flight 175 is legal opinion from Time judge runs . . out! . of American about federal to hitkilling” the south tower with themore ACLU .50. .American . thancitizens? citizens on board. Where Is the “Battlefield” in the Struggle Against al Qaeda? Since 9/11, we have seen attacks in London, . . . Where Is the “Battlefield” in the Struggle Against al Qaeda? Since then, we have seen attacks in London, Madrid . . . Where Is the “Battlefield” in the Struggle Against al Qaeda? . . . And many other places around the world. Where Is the “Battlefield” in the Struggle Against al Qaeda? . . . And many other places aroundInthe many if not most of them, al-Awlaki’s name world. has come up during the investigation. Where Is the “Battlefield” in the Struggle Against al Qaeda? In modern war, the “battlefield” is where you find the enemy. Where Is the “Battlefield” in the Struggle Against al Qaeda? In modern war, the “battlefield” is where you find the enemy. With al Qaeda, that may be Afghanistan, Pakistan, Yemen, Somalia, or virtually anywhere else in the world. Where Is the “Battlefield” in the Struggle Against al Qaeda? In modern war, the “battlefield” is Thisthe is nothing where you find enemy. With al Qaeda, that may be Afghanistan, Pakistan, Yemen, Somalia, or virtually anywhere else in the world. new. During World War II Congress Declared War Against Germany During World War II Congress Declared War Against Germany But when Hitler sent Rommel to fight in North Africa, we responded by sending Patton. During World War II Congress Declared War Against Germany But when Hitler sent Rommel to fight in North Africa, we responded by sending Patton. During World War II Congress Declared War Against Germany But when Hitler sent Rommel to fight in North Africa, we responded by sending Patton. During World War II Congress Declared War Against Germany Congress did not But when Hitler sent Rommel to “declare war” against fight in North Africa, we of the countries responded by sending Patton. North Africa. During World War II Congress Declared War Against Germany Congress did not But when Hitler sent Rommel to “declare war” against fight in North Africa, we of the countries responded by sending Patton. North Africa. We fought the enemy where we found him. And that included During World War II in occupied FRANCE! Congress Declared War Against Germany Congress did not But when Hitler sent Rommel to “declare war” against fight in North Africa, we of the countries responded by sending Patton. North Africa. We fought the enemy where we found him. The Significance of Al-Aulaqi’s U.S. Citizenship Historically, joining the armed forces of a foreign state engaged in hostilities against the United States would lose U.S. citizenship 8 U.S.C. § 1481(3)(A) Historically, joining the armed forces Today there must be clear of aevidence foreign state engaged in of an intent to hostilities against the United States give up citizenship. would lose U.S. citizenship 8 U.S.C. § 1481(3)(A) Historically, joining the armed forces Today there must be clear “Treason against the United of aevidence foreign state engaged in of anconsist intent toin States, shall only Al-Awlaki is hostilities against the United States givelevying up citizenship. War against them, would lose U.S. citizenship certainly guilty or in adhering to their of Enemies, giving them Aid treason. and Comfort.” 8 U.S.C. § 1481(3)(A) Historically, joining the armed forces Today“Treason there must againstbe theclear United of aevidence foreign state engaged in ofshall an intent to in States, consist only hostilities against the United States levying War against them, give up citizenship. or in adhering to their would lose U.S. citizenship Enemies, giving them Aid and Comfort.” 8 U.S.C. § 1481(3)(A) Ex parte Quirin 317 U.S. 1, 37-38 (1942) “Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.” Ex parte Quirin 317 U.S. 1, 37-38 (1942) “Citizenship in the United States of an enemy belligerent does not relieve him from the Quirin was cited with authority consequences of a belligerency which is both majority and of dissenting unlawful by because in violation the law of war. in Hamdi, Hamdan,with the Citizens justices who associate themselves and of other post-9/11 cases. military arm the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.” “Are Drone Strikes Murder?” National Journal, Jan. 9, 2010 Mehsud was killed “in Pakistan, a country with which the United States is not at war.” “Are Drone Strikes Murder?” National Journal, Jan. 9, 2010 “Are Drone Strikes Murder?” National Journal, Jan. 9, 2010 “[T]he skeptics’ complaints boil down to some basic questions . . . . Chief among them is whether a state of armed conflict—usually a prerequisite for the legal use of violent force— actually exists in the places outside Afghanistan where the United States is using drones to kill its enemies.” Authorization for Use of Military Force September 18, 2001 • Public Law 107-40 [S. J. RES. 23] Congress authorized the of armed force againstto use “SEC. 2. .use . . [T]he President is authorized all necessary and appropriate organizations and force against those nations, organizations, or persons he “persons,” not just determines planned, authorized, committed, or countries. aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Authorization for Use of Military Force September 18, 2001 • Public Law 107-40 [S. J. RES. 23] By the National Journal’s logic, been “SEC. 2. it. .would . [T]he have President is authorized to use all necessary appropriate illegal for theand U.S. military force against those nations, to attack Gen.organizations, Rommel’s or persons he determines planned, authorized, committed, or forces in terrorist North Africa aided the attacks that occurred on during September WW11, II! 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” “Are Drone Strikes Murder?” National Journal, Jan. 9, 2010 “There simply is no right to use military force against a terrorist suspect far from any battlefield.” - Mary Ellen O’Connell University of Notre Dame Law School “Are Drone Strikes Murder?” National Journal, Jan. 9, 2010 “There simply is no right to use This is absolutely military force against a terrorist suspect far from any battlefield.” ABSURD!! - Mary Ellen O’Connell University of Notre Dame Law School “Are Drone Strikes Murder?” National Journal, Jan. 9, 2010 International law has always permitted attacking enemy military forces war to use “There simply isduring no right This is absolutely wherever they could beafound – military force against terrorist including in tents far suspect farsleeping from any battlefield.” from any “battlefield.” ABSURD!! - Mary Ellen O’Connell University of Notre Dame Law School Predators Are As Legal as Artillery, Helicopters, or Rifles Predators Are As Legal as Artillery, If you use any Helicopters, orweapon Rifles to deliver a chemical or biological weapon or against a hospital or other protected target, it can be illegal. Predators Are As Legal as Artillery, But there are many things about the If you use any weapon Helicopters, or Rifles Predator that make it more desirable to deliver a chemical under international law. or biological weapon or against a hospital or other protected target, it can be illegal. Predators Are As Legal as Artillery, But there are many things about the If you use any weapon Helicopters, or Rifles Predator that make it more desirable to deliver a chemical under international law. or biological weapon or against a hospital The operator has access to a tremendous or other protected amount oftarget, information, andbe can actually it can illegal. see his target as he fires the missile – greatly reducing the risks of poor intelligence and collateral damage. Predators Are As Legal as Artillery, But there are many things about the If he sees children If you use any weapon Helicopters, or Rifles Predator that make it more desirable in his monitor, he to deliver a chemical can decide not to under international law. biological weapon fire theor missile. or against a hospital The operator has access to a tremendous or other protected amount oftarget, information, andbe can actually it can illegal. see his target as he fires the missile – greatly reducing the risks of poor intelligence and collateral damage. Predators Are As Legal as Artillery, But there are many things about the If he sees children If you use any weapon Helicopters, or Rifles Predator that make it more desirable in his monitor, he to deliver a chemical can decide not to under international law. biological weapon fire theor missile. The Hellfire missile is far or against a hospital more discriminating than The operator hasartillery access a tremendous or other protected or to gravity bombs, amount oftarget, information, andbe can actually which makes collateral it can illegal. likely. – see his target as damage he firesfar theless missile greatly reducing the risks of poor intelligence and collateral damage. Predators Are As Legal as Artillery, But there are many things about the If he sees children If you use any weapon Helicopters, or Rifles Predator that make it more desirable in his monitor, he to deliver a chemical can decide not to under international law. The reduced risk to biological weapon fire theor missile. The Hellfire missile is far American operator or the against a hospital more discriminating than also a plus to some The operator has access to a tremendous or is other protected artillery or gravity bombs, of us. amount oftarget, information, andbe can actually which makes collateral it can illegal. likely. – see his target as damage he firesfar theless missile greatly reducing the risks of poor intelligence and collateral damage. The Predator Works (NPR web site) “Mehsud, who was accused by the Pakistani government of many deadly attacks, including the 2007 assassination of former Prime Minister Benazir Bhutto, had threatened the U.S. mainland.” It is NOT “Assassination” Wash. Post, 1990 “Assassination” Murder committed for hire . . . A murder committed treacherously or by stealth or surprise, or by lying in wait.” - Black’s Law Dictionary “Assassination” “The murder of a person by lying in wait for him and then killing him, particularly the murder of prominent people from political motives, e.g., the assassination of President Kennedy.” - Oxford Companion to Law (1980) “Assassination” “The murder of a person by lying in wait for him and then killing him, particularly the Lawful acts of murder of prominent people from political self-defense motives, e.g., the assassination of are not President Kennedy.” “murder” - Oxford Companion to Law (1980) During the American Revolution We Intentionally Targeted British Officers and Indian Guides The Killing of Adm. Yamamoto April 18, 1943, President Roosevelt sent 18 U.S. Navy P38 aircraft to intercept an aircraft carrying Japanese Navy Commander-in-Chief Admiral Isoroku Yamamoto—who masterminded the Pearl Harbor attack in 1941—and shoot him down. That was a lawful military operation and not “assassination. Belligerent’s Privilege in Armed Conflict Soldiers during armed conflict may kill the enemy without being guilty of murder or homicide. Belligerent’s Privilege in Armed Conflict Soldiers during armed conflict may Or getting kill the enemy without being guilty approval of murder or homicide. from a judge or jury. Are Terrorists Like Osama Bin Laden Lawful Targets? If evidence is clear they are engaged in an ongoing use of lethal force against the United States or a State requesting our Seeaid; Robert F. Turner, In U.S. right If we cannotself-defense, easily apprehend forhas trial or deter; to kill binnot Laden, USA If our operation does otherwise violate international law; Today, Oct. 26, 1998. Yes, terrorist leaders are lawful targets. I look forward to taking questions when Mr. Manes finishes his rebuttal. EXTRA SLIDES The following slides were not used in this presentation. “Assassinations” and “Targeted” or “Extrajudicial” Killings by UAV Predator Drones Harold Koh 2010 Meeting of the American Society of International Law October 1990, I wrote A brief Inand the lead article in the perhaps Washington Post Outlook Section arguing that ironic Saddam Hussein was a lawful target in Operation digression. Desert Storm. Harold Koh 2010 Meeting of the American Society of International Law In October 1990, I wrote the lead article in the Washington Post Outlook Section arguing that Saddam Hussein was a lawful target in Operation Desert Storm. Harold Koh 2010 Meeting of the American Society of International Law In October 1990, I wrote SecDef Dick Cheney had just the lead article in the fired the Chief of Staff of the Washington Post Outlook Air Force for publicly stating that if Saddam did not Section arguing that Saddam Hussein was a withdraw Iraqi forces from lawful target in Operation Kuwait, we would intentionally Desert Storm. target him if we had to use force to protect Kuwait. Harold Koh 2010We Meeting of the Society of will discuss theAmerican “assassination” issue later, but I should Law note there International was remarkably little criticism of my reasoning at the time In October SecDef Dick Cheney had just(to my1990, I wrote surprise). the lead article in the firedgreat the Chief of Staff of the Washington Post Outlook Air Force for publicly stating that if Saddam did not Section arguing that Saddam Hussein was a withdraw Iraqi forces from lawful target in Operation Kuwait, we would intentionally Desert Storm. target him if we had to use force to protect Kuwait. Harold Koh 2010We Meeting of the Society of will discuss theAmerican “assassination” issue later, but I should Law note there International was remarkably little criticism of my reasoning at the time In October SecDef Dick Cheney had just(to my1990, I wrote surprise). the lead article in the firedgreat the Chief of Staff of the Washington Post Outlook Air Force for publicly stating that if Saddam did not Section arguing that Shortly after the war, DCI BillHussein was a Saddam withdraw Iraqi forces from Webster assured me theytarget in Operation lawful Kuwait, we would intentionally would bombed Saddam Desert Storm. target him have if we had to use anprotect instantKuwait. had they been forceinto able to locate him with any confidence. Jus Ad Bellum Issues Aggression Self-Defense State Responsibility Consent Aggression Article 2(4) “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Self-Defense Article 51 “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. . . .” Jus In Bello Issues Lawful Weapons? Lawful Targets? Lawful Shooters (USAF vs. CIA)? Are Terrorists Like Osama Bin Laden Lawful Targets? If evidence is clear they are engaged in an ongoing use of lethal force against the United States or a State requesting our aid; If we cannot easily apprehend for trial or deter; If our operation does not otherwise violate international law; Yes, terrorist leaders are lawful targets. By What Theory Are They Lawful Targets? International law permits that which is not prohibited (Lotus Case, PCIJ, 1927); Most laws govern State responsibility to other States; Necessary self defense is an exception to prohibitions against using lethal force; No treaty or custom protects terrorists as a class; Terrorists are humani generis hostes (“common enemies of man”) like pirates and slave-traders. As [unprivileged] “belligerents” they are lawful targets. U.N Security Council Resolution 1189 (1998) “The Security Council, . . . Convinced that the suppression of acts of international terrorism is essential for the maintenance of international peace and security, and reaffirming the determination of the international community to eliminate international terrorism in all its forms and manifestations; . .. Calls upon all States to adopt, in accordance with international law and as a matter of priority, effective and practical measures for security cooperation, for the prevention of such acts of terrorism, and for the prosecution and punishment of their perpetrators. “Assassinations by UAV Predator Drones We are killing the enemy’s leaders I think that’s (those responsible for the war), reducing the need to kill more lowMore Predator attacks have level fighters, and greatly occurred under President Obama than during two terms minimizing collateral damage – all under George W. Bush. while keeping our own people out of harm’s way. GREAT ! “Are Drone Strikes Murder?” National Journal, Jan. 9, 2010 Mehsud was killed “in Pakistan, a country with which the United States is not at war.” The Predator Works (NPR web site) He was the top leader “[Baitullah] Mehsud, who of the was accused by theTaliban umbrella Pakistani group, governmentTTP, of an alliance many deadly attacks, five Taliban groups including of the 2007 assassination of former in Pakistan controlling Prime Minister Benazir thousands of fighters. Bhutto, had threatened the U.S. mainland.” The Predator Works (NPR web site) “[Baitullah] Mehsud, who was accused by the Pakistani government of many deadly attacks, including the 2007 assassination of former Prime Minister Benazir Bhutto, had threatened the U.S. mainland.” He was killed by Predator drone, August 5, 2009. The Predator Works (NPR web site) Collateral damage “[Baitullah] Mehsud, who wasbyminimal – was accused the Killed Pakistani government of by reportedly many deadly attacks, Predator drone, includingincluding the 2007 his wife assassination of August former 5, 2009. and Benazir bodyguards. Prime Minister Bhutto, had threatened the U.S. mainland.” It is not “Extrajudicial Killing” or “Murder” Constitution vest Commander-in-Chief power in President 18 Sept. 2001—Congress authorize use of armed force against al Qaeda and Taliban in AUMF, Public Law 107-40 [S.J. Res. 23] Judges don’t travel around battlefields telling soldiers or commanders who can be killed. It is not “Extrajudicial Killing” or “Murder” Constitution vest Commander-in-Chief power in President Virtually all killing 18 Sept. 2001—Congress during war is authorize use of armed force against al Qaedabut andstill Taliban in “extrajudicial,” AUMF, Public Law 107-40 [S.J. Res. 23] lawful. Judges don’t travel around battlefields telling soldiers or commanders who can be killed. “Are Drone Strikes Murder?” National Journal, Jan. 9, 2010 “Critics . . . say that so little is known about how decision makers create target lists and minimize collateral deaths, it’s impossible to say whether the administration is following the law.” “Are Drone Strikes Murder?” National Journal, Jan. 9, 2010 So we should start publicizing “Critics . . .plans say that so little is our war to be read by known about howthe decision the enemy to keep ACLU makers happy?create target lists and minimize collateral deaths, it’s impossible to say whether the administration is following the law.” “Are Drone Strikes Murder?” National Journal, Jan. 9, 2010 So we should start publicizing “Critics . . .plans say that so little is our war to be read by What will they do when they known about howthe decision the enemy ACLU learnto wekeep permit soldiers to shoot the enemy on thelists and makers target happy?create minimize collateral deaths, it’s impossible to say whether the administration is following the law.” battlefield without judicial or ACLU supervision? Al-Aulaqi v. Obama [filed 30 August 2010] Relief is sought on basis of: Fourth Amendment “unreasonable seizure”; Fifth Amendment deprivation of life without due process of law; Alien Tort Statute “extrajudicial killing”’ Fifth Amendment due process failure to give notice.