Robert Chesney on Targeting Al-Awlaqi, and My Comment on Targeting for Incitement to Violence

Robert Chesney (University of Texas law school and the indispensable Lawfare blog) has posted an important draft paper on the law surrounding the targeting of Anwar Al-Awlaki, the Yemini-American radical Islamist cleric in hiding presumably in Yemen.  It is still in draft form (to appear in final form in the Yearbook of International Humanitarian Law), and Professor Chesney is still revising and soliciting comments from knowledgeable folks.  Here is Professor Chesney’s comment at Lawfare; the draft paper is up on SSRN at this link.

I have a variety of comments of my own below the fold, and I have put up the abstract as well.  Most of my comments go to the issues that the paper discusses, but I add a last issue – Al-Awlaki and incitement to violence – that goes very far beyond the draft paper, which I add because, in my estimation, it is actually the issue that, even more than US citizenship, animates the controversy.

I

For many people, the Obama administration’s decision to put Al-Awlaki, who holds US citizenship, on the capture-or-kill targeting list, directly on the say-so of President Obama, is the “rubber-meets-the-road” intersection of counter-terrorism, international law, and domestic Constitutional law.  Adam Serwer was perhaps the first blogger to note that State Department Legal Adviser Harold Koh’s widely noticed statement on targeted killing using drones at the American Society of International Law meeting in March 2010 in no sense distinguished between Americans and non-Americans in targeting decisions.  Nor, by implication, did it limit the targeting of Americans to situations of armed conflict, but included at least residually the category of pure self-defense.

The ACLU and the Center for Constitutional Rights brought a lawsuit on behalf of Al-Awlaki’s father seeking a judicial order against targeting Al-Awlaki. Although most of the public discussion of the lawsuit focused on domestic issues, at its heart was a sweeping view that, under international law, armed conflict is geographically defined and that outside those geographic boundaries, it was no longer armed conflict governed by the laws of war.  This suit was dismissed by Judge Bates not long ago, ostensibly on narrow terms going to procedural issues of standing, but in fact buttressed by quite broad dicta on several substantive issues that went well beyond the issues of standing.

Meanwhile, for many the public relations of the issue was framed as “executing an American citizen without judicial process” – a framing that assumes its conclusion, as a legal matter, since the question is whether such targeting constitutes an “execution” for which judicial process is required.  Emotions have run high over the issue, among lawyers as well as laypeople, journalists, bloggers, and blog commenters (which is one reason I’m not opening comments on this thread).

Into this discussion, it is somewhere between a pleasure and a relief to welcome Professor Chesney’s calm, serious, unflappable international law discussion of these issues.   It is a narrow legal discussion in important respects – it considers only issues of international law, to start with, and does not take up domestic law.  But it does have the hugely important virtue of taking up what many regard as the hardest targeting question, at least as far as “who” is concerned, and breaks it down into a systematic walk through the legal issues.  Even those who disagree with one view or another will certainly welcome the structuring of the issues.  

II

I agree with the overall structure of Professor Chesney’s analysis – the questions and the order of raising them.  One observation is that I would put less weight on sovereign consent for the jus ad bellum analysis (ie, Yemen permitting the US action).  This is in large part because I believe that the bedrock international law principle for the United States is, and always has been, that although territorial integrity is foundational to legal sovereignty, a state that is either unwilling or unable to control the use of its territory by non-state actor terrorist or other armed groups acting against other sovereigns – safe havens – gives up its sovereignty and right to territorial integrity to that extent.  Whether one sees it as an exception to the territorial integrity rule, or instead that the state is failing to exercise sovereignty and so does not have it at that point over the relevant territory, my view is that this is far more important a legal principle in addressing terrorist groups than sovereign consent.

My view of “naked” self-defense outside of armed conflict remains as it has been since the beginning of this debate over targeting, as a formal category.  However, as a factual matter regarding Al Qaeda in the Arabian Peninsula, I believe that the connections between it and AQ proper are sufficient to bring it within the AUMF; at one point I didn’t think that was the case, but I have certainly been persuaded otherwise.  In that case, the Obama administration, which has various political and domestic legal reasons for preferring the AUMF-armed conflict characterization over the naked self-defense characterization, is on firm ground.  It would, in my view, be on firm ground either way.  However, I remain fully committed to the view that self-defense as an independent category remains available as a legal rationale, and that it will be necessary and appropriate in future circumstances.

III

Finally, with respect to pure human rights law, outside of armed conflict law, I would emphasize a couple of things.  One is that I am not especially convinced that the international human rights law of extrajudicial execution is applicable to extraterritorial actions, at least in these ways – even if one grants, as the US does not, that the International Convention on Civil and Political Rights (ICCPR), for example, applies extraterritorially.  The US government has responded to the Special Rapporteur on Extrajudicial Execution that it regards his inquiries as beyond his legal mandate because they run to armed conflict, and therefore outside of his remit.

I would add (and I haven’t double checked; perhaps the Obama administration has actually said) that even outside of armed conflict law, targeting of this kind is simply a different activity than extrajudicial execution or “disappearances” undertaken by a state against its population within its own territory.  The Special Rapporteur has been unilaterally rewriting his mandate, in my view, even beyond the armed conflict question.  I would also stress that the US remains fully committed to the view that its obligations under the ICCPR do not run extraterritorially, and that its view of the interaction of human rights law in situations of armed conflict is far, to say the least, from the ever-expansive views of academics, activists, and international officials.

IV

In this next section of this post, I go far beyond Professor Chesney’s paper; be advised.  The draft article correctly stresses necessity as an element of the decision to target; this will always be the case in any use of force situation.  But the real debate lies over the question of how close a connection one must show between Al-Awlaki, in this case, and threats of violence, particularly a temporal connection.

In that regard, I think the US standard of “active self-defense” that runs back at least to the 1980s remains the relevant standard.  A pattern of behavior by a group, including over a long run of time, with which the person is associated formally or informally is enough; it is not a specific plot or thing about to happen now – the accumulation of evidence of a threat is sufficient, and a government is not obliged to time its response to some immediate threat of violence.

Nor, in my view, is necessity some overly-stringent requirement of showing targeting as the only feasible means of dealing with the threat. I would anticipate that the human rights advocates, while perhaps being strategically careful not to deny the ability ever to target in principle, would seek to achieve the same functional result by raising the necessity bar so high that in practical terms it could never be met.  I don’t think there is any obligation to go there, and the US government should be clear about that so as to remove any possible doubt that it does not see itself as having to make any particularized showing, even internally, on that issue.

US government officials have been very clear in press articles that, while refusing to reveal specifics for obvious reasons, that Al-Awlaki is deeply implicated in operational matters of AQAP. That being the case, it removes the necessity of addressing whether Al-Awlaki’s incitement alone, whether broadcast across the internet or specific recruitment and encouragement of people to commit acts of violence, would ever be sufficient reason to target him.

I myself have a much tougher view of the incitement issue.  At some point – and Al-Awlaki’s various incitements, across the internet or to specific persons are an important case in point – we are going to have to get beyond the knee-jerk defense of Al-Awlaki and other preachers of violence as merely “expressing their protected opinions.”  We are going to have to understand that these are genuine incitements to actual violence and that they have had the effect of damaging enormously the rights of others peacefully to express themselves.  Consider the situation of Seattle cartoonist Molly Norris.  The failure of the Obama administration, the mainstream media, the political elites in this country to make an issue of credible threats – inspired by preachers of violence – against her (Norris had called for an “everyone draw Muhammed” day in defense of free speech) and the fact of the FBI advising her to go off the radar screen because of serious threats – well, it “defined deviance down” in a way that has altered the free speech rights of everyone in this country.

Meanwhile, this country went through paroxysms and spasms over purely metaphorical violence in the Tucson shooting – exquisitely analyzing everything in the most ordinary political speech of an ordinary liberal society for hidden meanings and covert intentions.  Everything, that is, except for the incitement to actual violence that is in actual plain sight.  Yes, of course, what constitutes actual incitement to actual violence is always contextual and always subject to argument.  It is always possible to overreact – but it is also quite possible to underreact, through a corrosive skepticism that treats each marginal loss of free speech rights against an implicit threat of violence as nothing in itself to worry about.

The Europeans acquiesced in this loss of free speech under the threat of violence a long time ago. David Cameron delivered a fine speech a few days ago condemning multiculturalism and calling for a “muscular” liberalism that is actually committed to actual things such as the rights of women and the right to blaspheme and criticize religions.  The problem is that British leaders always deliver fine speeches, and yet their bureaucratic elites continue along exactly the same gradual reduction in liberties as before, and always in the name of protecting rights. The UK is today jihad central because it largely externalizes the costs of its exquisitely fine internal civil liberties for jihadists and preachers of actual violence onto everyone else (as a well-connected French friend put it to me).  The Seattle cartoonist case shows that this phenomenon has arrived in the United States sooner rather than later.  Unfortunately, the response from the political elites and bureaucratic forces to which we Americans have rather foolishly committed our liberties is little different from the well-trod European path.

At some point, incitement to violence will have to be taken seriously in context as exactly what it says.  It won’t be about the metaphors of violence and war that permeate any serious liberal politics, because politics is how we sublimate into a political community and its metaphorical language what might otherwise be actual civil war.  It will be about violent Islamists like Al-Awlaki, for whom it is war, for whom it is the domination of one political community by another that is driven by both politics and a reading of religion.  Where the preachers of actual violence are within the territorial grasp of American justice, then judges can make the difficult calls of context and what it means in particular circumstances.  But in the age of the internet, there will be people – in my view Al-Awlaki is one of them – whose incitement to actual violence is utterly real, and who are capable of altering the rights and liberties of entire populations half-way around the world.  At some point – and I stress that the US government is not resting its case against Al-Awlaki as a target on these grounds – incitement by terrorists to actual violence should be sufficient to target on self-defense grounds.

V

That carries a very, very, very long ways from where Professor Chesney goes, however.  I raise this last, deliberately provocative point because it seems to me the issue that for so many defines the Al-Awlaki case. “He’s just a blogger,” as one reporter dismissively put it to me.  I think not.

But again, Professor Chesney is not going anywhere near these issues, and I apologize to him for partly hijacking discussion of his article.  But I do it in order to carry the discussion to the matter that, in my view, correctly frames the fundamental question raised by Al-Awlaki, even more than his US citizenship.  It is the one, it seems to me, that most agitates people in arguing over it.

Here is the SSRN abstract:

Anwar al-Awlaki is a dual Yemeni-American citizen who has emerged in recent years as a leading English-language proponent of violent jihad, including explicit calls for the indiscriminate murder of Americans. According to the U.S. government, moreover, he also has taken on an operational leadership role with the organization al Qaeda in the Arabian Peninsula (AQAP), recruiting and directing individuals to participate in specific acts of violence. Does international law permit the U.S. government to kill al-Awlaki in these circumstances?

Part I opens with a discussion of what we know about AQAP, about al-Awlaki himself, and about the U.S. government’s purported decision to place him on a list of individuals who may be targeted with lethal force in certain circumstances. Part II then explores objections to killing al-Awlaki founded in the U.N. Charter’s restraints on the use of force in international affairs. I conclude that a substantial case can be made, at least for now, both that Yemen has consented to the use of such force on its territory and that in any event the conditions associated with the right of self-defense enshrined in Article 51 can be satisfied. Part III then turns to objections rooted in IHL and IHRL, beginning with the question whether an attack on al-Awlaki would fall within IHL’s field of application. I conclude that the threshold of armed conflict has been crossed in two relevant respects. First, it has been crossed in Yemen itself as between AQAP on one hand and the U.S. and Yemeni governments on the other. Second, it has been crossed as well with respect to the United States and the larger al Qaeda network – and not only within the geopolitical borders of Afghanistan. Building from these premises, I then proceed to consider whether al-Awlaki could be targeted consistent with IHL’s principle of distinction. I conclude that he can be if he is in fact an operational leader within AQAP, as this role would render him a functional combatant in an organized armed group.

Should the analysis instead turn on IHRL, however, the central issue becomes the requirement of necessity inherent in IHRL’s protection for the right-to-life, and in particular the notion of temporal necessity. I conclude that this requirement is not an obstacle to attacking al-Awlaki insofar as (i) there is substantial evidence that he is planning terrorist attacks, (ii) there is no plausible opportunity to incapacitate him with non-lethal means, and (iii) there is not good reason to believe that a plausible non-lethal opportunity to incapacitate him will arise before harm to others occurs. A second question then arises, however. Must al-Awlaki be linked to a specific plot to carry out a particular attack, or is it enough that the evidence establishes that he can and will attempt or otherwise be involved in attacks in the future without specificity as to what the particulars of those attacks might be? The former approach has the virtue of clarity, yet could rarely be satisfied given the clandestine nature of terrorism. The latter approach necessarily runs a greater risk of abuse and thus perhaps justifies an especially high evidentiary threshold, but in any event it is a more realistic and more appropriate approach (particularly from the point of view of the potential victims of future terrorist attacks).

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