On Monday, several news agencies reported that the Obama Administration was mulling over whether to target an al-Qa’eda operative overseas via drone strike. The fact that it’s an American citizen – reportedly hiding in Pakistan – is fueling debate, and generating criticism from some of the people you’d expect to support President Obama.
The Justice Department is involved in the process, reviewing evidence in accordance with the Obama Administration’s latest policy on the issue. According to the L.A. Times:
“Under guidelines approved by Obama in May, a potential target must pose “a continuing, imminent threat to U.S. persons.” Americans proposed for the so-called kill list also are entitled to legal due process, which the administration has interpreted to mean a review by the Justice Department.“
Some critics might see parallels between this case and the drone strike that took out U.S.-born Islamic cleric Anwar al-Awlaki in 2011, and, as they did then, invoke the provision in Executive Order 12333 that prevents American agents from assassination.
But there’s already precedent that would justify an attack regardless of those new guidelines – rooted in the declaration of war that Congress made following the unlawful attack on Americans on Sept. 11, 2001. And there’s confusion between assassination – which, by definition, must be for political purposes – and the lawful use of force sanctioned in the current War on Terror.
In a Jurist article I wrote back in 2002 on the assassination question, I noted:
“[The] lawful use of violence is rooted in both customary principles and in Article 51 of the U.N. Charter. Essentially, lawful violence can be justified if – and only if – exercised in “self-defense.” In the War on Terror, it is beyond legal dispute that the virtual-State al-Qa’eda terrorists are aggressors and that the United States is engaging in self-defense when using violence against them. Indeed, on at least one occasion prior to the illegal aggression of September 11, 2001, the United States lawfully exercised the inherent right of self-defense against al-Qa’eda: President Bill Clinton sent cruise missiles against several al-Qa’eda terror training camps in Afghanistan following the 1998 al-Qa’eda attack on two United States’ embassies in Africa.
Since we are at war with al-Qa’eda, any legal analysis of the use of violence against that enemy turns on how violence is employed. In short, the United States must exercise violence lawfully in accordance with the rules associated with the law of armed conflict. The law of armed conflict describes lawful targets which can be destroyed in the proper context of combat operations. An enemy combatant – whether part of an organized military or a civilian who undertakes military activities – is a legitimate target at all times and may be lawfully killed, even if by surprise.”
The provision of being a “continuing, imminent threat” might seem one that goes beyond the standards outlined above, but given al-Qa’eda’s stance toward Americans and its predilection toward terrorism, anyone allied with al-Qa’eda should meet the definition of being a “continuing, imminent threat” – which would make that provision redundant.
In a climate where President Obama has drawn many critics for his military decisions – including me, on more than one occasion – I expect that we’ll see more about this case should the U.S. authorize and carry out plans to kill this still-to-be-named target. But based on the actions of those lawmakers who came before President Obama, he has the right to find and take out this target, just as he did with al-Awlaki. As long as al-Qa’eda remains a threat and we maintain the declaration of war that we made in response to the 9/11 attacks, the Commander in Chief has the power to conduct lawful military action as he sees fit.