Following up on Eric’s post re President Obama’s legal authority to target in Yemen … I’m a bit of a broken record on the need for the United States government to articulate a more coherent legal basis for its targeted killing. But it is just more so since the Christmas terrorist attack … the range of places in which the US might well decide it should attack safe havens is likely to grow, and so too the range of people to be targeted. In one way, the fact that “Al Qaeda” took responsibility makes it easier for the USG to expand the range of places in which targeted killing gets used, because it means people (at least in the US) understands that AQ has not gone away. On the other hand, Eric is right to point out that calling it Al Qaeda gets, well, notional after a while. And anyway, the AUMF does not solve any international law problems, either in the resort to force or its conduct; it is an act of Congress.
All of which is why in my view, the United States needs to reaffirm the 1989 Sofaer doctrine on non-state actors, terrorism, safe havens, and self-defense. As far as I am aware, it has never gone away or been rescinded – but it has not been publicly articulated as the view of the US government for a long time. The essential element is that there is a category of use of force in self defense that is neither law enforcement, nor is it armed conflict in all the specificity of the laws of war because the use of force does not rise to the level of sustained fighting required under treaty and customary law of war. It is its own category, self-defense; it is not standardless, because it is subject to the customary law requirements of necessity and proportionality – but it is a doctrine of international law that is flexible in responding to new situations, as the Sofaer doctrine says.
If anyone from DOS, DOD, DOJ, NSC, CIA, DNI, or the White House counsel’s office is reading this following the Christmas attack, and as you sit thinking about Yemen, Somalia, and who knows where down the road … you should be thinking hard about having the State Department Legal Adviser deliver a major speech in which the traditional category of self-defense, and the Sofaer speech in toto, is reaffirmed as the opinio juris of the United States and not “merely” its state practice. If a state cannot or will not control its territory, the United States has no legal obligation to sit idly by – in armed conflict or out – to watch it being used as a safe haven for non-state actors. President Obama has said this repeatedly in the last few months. But that is not the same as the administration’s top legal officials stating so as a matter of the US view of international law on the use of force – publicly articulating it, and pointing out that this has always been the US view and it is nothing new, but is the lawful basis of the President’s policy.