A few hours ago at a conference on national security sponsored by Harvard Law School and the Brookings Institution (as part of a new partnership on law and security issues), the White House’s senior counterterrorism official, John Brennan, gave what Marty Lederman calls the “most comprehensive single statement of the Obama Administration’s policies and practices with respect to al Qaeda and other terrorist threats.” I agree.
Marty posts the speech at Opinio Juris, highlighting the most important parts (and adds analysis at Opinio Juris). It is worth reading, and you’ll likely hear about it in the leading papers tomorrow. Of particular interest to me was Brennan’s characterization of the nature of the conflict with Al Qaeda, in part given what I’ve written in the past few months about “how we came to debate a legal geography of war” (I’ve moved the Brennan passage below the fold).
Update: The New York Times yesterday ran an important, front-page article by Charlie Savage on apparent splits among senior lawyers in the administration over the extent of legal authority (and under what legal authority) to attack terrorists in places beyond the overt, conventional fighting in Afghanistan and parts of Pakistan. Framed as a debate between DOD General Counsel Jeh Johnson and DOS Legal Adviser Harold Koh, Savage sketches out the basic issue this way:
The debate, according to officials familiar with the deliberations, centers on whether the United States may take aim at only a handful of high-level leaders of militant groups who are personally linked to plots to attack the United States or whether it may also attack the thousands of low-level foot soldiers focused on parochial concerns: controlling the essentially ungoverned lands near the Gulf of Aden, which separates the countries.
The dispute over limits on the use of lethal force in the region — whether from drone strikes, cruise missiles or commando raids — has divided the State Department and the Pentagon for months, although to date it remains a merely theoretical disagreement. Current administration policy is to attack only “high-value individuals” in the region, as it has tried to do about a dozen times.
But the unresolved question is whether the administration can escalate attacks if it wants to against rank-and-file members of Al Qaeda in the Arabian Peninsula, based in Yemen, and the Somalia-based Shabab. The answer could lay the groundwork for a shift in the fight against terrorists as the original Al Qaeda, operating out of Afghanistan and Pakistan, grows weaker. That organization has been crippled by the killing of Osama bin Laden and by a fierce campaign of drone strikes in the tribal regions of Pakistan, where the legal authority to attack militants who are battling United States forces in adjoining Afghanistan is not disputed inside the administration.
It appears that the Brennan speech and the approval and review process are part of the resolution of those policy disputes, which Brennan (and other sources for Savage’s article) indicated are really more policy than pure law. In that regard, Brennan’s statements (below the fold) appear to support the Johnson view. Jack Goldsmith notes (at Lawfare):
Johnson appears to take the view that if the group falls under the AUMF (the domestic basis of authority), the President is legally authorized to target all its members in a country unwilling or unable to suppress them (which is the U.N. Charter requirement). And Koh appears to be arguing that international law imposes an extra condition, namely: the United States can kill a member of an affiliated group outside of Afghanistan only if the act against the individual is an act of self-defense, i.e. the U.S. can target only “individuals plotting to attack the United States.”
Johnson seems to have the better of this legal argument. If the president is authorized to use force against a terrorist group by Congress, and if the U.N. Charter’s sovereignty concerns are overcome because the nation in question is unwilling or unable to address the group’s threat to the United States, and as long as the United States complies with jus in bello restrictions on targeting (distinction, proportionality, etc.), there is no further legal requirement. The basis in international law for Koh’s additional individualized self-defense requirement is unclear. It cannot come from the Charter; self-defense there is concerned with state sovereignty only, not individual rights. Perhaps Koh thinks it comes from international human rights law. But applying international human rights law in armed conflict in this manner is not only unwarranted under international law and a fateful step for the U.S. military to take. It also appears to contradict Congress’s judgment (as interpreted by two administrations, as well as the federal courts) that the president’s military authorities extend to groups affiliated with al Qaeda.
I basically agree with Jack, and by implication, the Johnson side in this debate. I have argued for the doctrine of self-defense in international law as an additional basis for attacking non-state terrorist groups – but by way of saying that even without an armed conflict (which is not the case for the US conflict with Al Qaeda and its associated forces, in which I accept that there is an armed conflict that goes where the fighters go) the law of self-defense provides an independent ground for attack. But that “naked” self-defense view gives a further basis for armed action; not an added check on targeting in an on-going armed conflict. And I read the Brennan speech as consistent with that view, as well. Charlie Savage offers an update following the Brennan speech in the Times this morning.
In [Yemen and Somalia], the State Department has argued, the United States may — as a matter of self-defense — lawfully kill high-level militants who are involved in plots to attack the United States, but not low-level militants who are focused on parochial concerns. The Defense Department has argued that it can attack members of Al Qaeda and its allies, although the dispute has remained latent so far because the policy has been to strike at only “high-value individuals.”
In his speech, Mr. Brennan initially suggested that he leaned toward the Pentagon’s view of the legal question, although subsequently made more ambiguous comments.
“The United States does not view our authority to use military force against Al Qaeda as being restricted solely to ‘hot’ battlefields like Afghanistan,” he said. “Because we are engaged in an armed conflict with Al Qaeda, the United States takes the legal position that — in accordance with international law — we have the authority to take action against Al Qaeda and its associated forces without doing a separate self-defense analysis each time.”
Still, he added, “That does not mean we can use military force whenever we want, wherever we want. 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.”
During a question period afterward, he drew a distinction between members of two groups in the region — Al Qaeda in the Arabian Peninsula, which is based in Yemen, and the Somalia-based Shabab — who are intent on attacking America, and those who are focused on local concerns. It was the former, he said, that the United States “will take action” against.
He also criticized The New York Times article for portraying the deliberations as a “great debate,” saying it was appropriate for lawyers to “actively and rigorously debate the law” so that policy makers could know the boundaries within which they can make decisions.
Below the fold is the relevant section of John Brennan’s Friday night speech at Harvard:
Nature and geographic scope of the conflict
First, our definition of the conflict. As the President has said many times, we are at war with al-Qa’ida. In an indisputable act of aggression, al-Qa’ida attacked our nation and killed nearly 3,000 innocent people. And as we were reminded just last weekend, al-Qa’ida seeks to attack us again.
Our ongoing armed conflict with al-Qa’ida stems from our right—recognized under international law—to self defense.
An area in which there is some disagreement is the geographic scope of the conflict. The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to “hot” battlefields like Afghanistan. Because we are engaged in an armed conflict with al-Qa’ida, the United States takes the legal position that —in accordance with international law—we have the authority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis each time.
And as President Obama has stated on numerous occasions, we reserve the right to take unilateral action if or when other governments are unwilling or unable to take the necessary actions themselves.
That does not mean we can use military force whenever we want, wherever we want. 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.
Others in the international community—including some of our closest allies and partners—take a different view of the geographic scope of the conflict, limiting it only to the “hot” battlefields. As such, they argue that, outside of these two active theatres, the United States can only act in self-defense against al-Qa’ida when they are planning, engaging in, or threatening an armed attack against U.S. interests if it amounts to an “imminent” threat.
In practice, the U.S. approach to targeting in the conflict with al-Qa’ida is far more aligned with our allies’ approach than many assume. This Administration’s counterterrorism efforts outside of Afghanistan and Iraq 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. Practically speaking, then, the question turns principally on how you define “imminence.”
We are finding increasing recognition in the international community that a more flexible understanding of “imminence” may be appropriate when dealing with terrorist groups, in part because threats posed by non-state actors do not present themselves in the ways that evidenced imminence in more traditional conflicts. After all, al-Qa’ida does not follow a traditional command structure, wear uniforms, carry its arms openly, or mass its troops at the borders of the nations it attacks. Nonetheless, it possesses the demonstrated capability to strike with little notice and cause significant civilian or military casualties.
Over time, an increasing number of our international counterterrorism partners have begun to recognize that the traditional conception of what constitutes an “imminent” attack should be broadened in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.
The convergence of our legal views with those of our international partners matters. The effectiveness of our counterterrorism activities depends on the assistance and cooperation of our allies—who, in ways public and private, take great risks to aid us in this fight. But their participation must be consistent with their laws, including their interpretation of international law.
Again, we will never abdicate the security of the United States to a foreign country or refrain from taking action when appropriate. But we cannot ignore the reality that cooperative counterterrorism activities are a key to our national defense. The more our views and our allies’ views on these questions converge, without constraining our flexibility, the safer we will be as a country.
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