Mercury Rising 鳯女

Politics, life, and other things that matter

The law on targeted killings. bin Laden v. al-Awlaki

Posted by Charles II on May 9, 2011

I don’t pretend to be a lawyer, but I have followed legal issues long enough to have a good layman’s sense of things. The killing of bin Laden has been met by claims that it was unlawful. I recently responded to those over at Avedon Carol’s Sideshow. I wish that there had been a lawyer familiar with US and international law to critique my posts, but unfortunately the response was simply that I was obviously wrong which, of course, doesn’t help to resolve the issue at all.

Targeted killings are an important issue. The US has asserted a right to kill anyone designated by the president as a terrorist when they are overseas, including US citizens. As bad as that is, there’s little to prevent the principle from being broadened to include anyone, anywhere under, say, a Bachmann presidency. Saggy pants? Boom! Cruise missile.

Now, the assertion clearly appears to violate the Fifth Amendment, which guarantees due process, including indictment by Grand Jury, for “a capital, or otherwise infamous crime.” There is an exception for “in actual service in time of war or public danger” which one wishes the Founders had been a little more explicit about, but the protections are very broad.

The case of Anwar al-Awlaki (or al-Aulaqi) highlights the issue. Detailed discussion is contained here and here. al-Awlaki is 1) a US citizen 2) presently in Yemen, a nation with which we are not at war. He is a cleric. To the best of my knowledge, 3) he has not personally engaged in acts of violence. Instead, as I understand it, he has been declared a terrorist based on having served as a religious leader to known terrorists. 4) He has not been indicted for any offense. And 5) there is no question that the US is trying to kill and not capture him, since they are using drone attacks. The courts ruled that his father, who brought the case, had no standing. Since it’s not really practicable for al-Awlaki to file the case, this has the effect of ending any chance of due process.

By contrast, in the bin Laden case, 1) he is not a US citizen. At the time of his death, he was in Pakistan, a nation with whom we are not at war. However, 2) he had gone there from Afghanistan, a nation on which the Congress authorized the use of military force precisely because of actions by bin Laden. 3) by his own admission, he had personally commanded the commission of acts of violence, and 4) has been indicted by US Grand Juries for some of those offenses (Anbar Towers and embassy bombings). Although the US has used drone strikes against al-Qaida members, in the raid on Abbotabad, they did not use drone strikes. So, however obvious it may seem to everyone, 5) it is at present ambiguous as to whether the order was to kill or to kill only in the event he could not be captured.

So, the elements of the bin Laden case are far different. Fifth Amendment protections do not apply, since he is out of the country. Nor does the government have any duty to him, since he’s not a US citizen. Unlike al-Awlaki, bin Laden (by indictment and by admission) personally directed and facilitated acts of violence. And (as implausible as it may seem) there’s some ambiguity around whether bin Laden was killed while resisting.

There’s an additional point. Al Qaeda was indisputably the target of the Congressional Authorization to Use Military Force. It’s less clear that groups separate from Al Qaeda, but may have been inspired by them, are covered by the AUMF.

There is a dispute as to whether someone constitutes an “imminent threat.” In the case of a cleric, that’s a pretty tough case to argue. Do we want to argue that chaplains are legitimate targets? But in the case of a commander of forces (and this bears on the targeted assassination attempt against Libya’s Moammar Gaddafi), it’s a far easier case to make. The attack on Rommel did materially affect the German war effort, for example, [added] and if the Laycock commando assassination attempt had succeeded, it would have had an even greater impact.

Well, is targeted assassination a violation of international law? Murphy and Radsan say:

From the technical stance of the law, much of the controversy over targeted killing stems from the fact that it does not fit comfortably into either of two models that generally control the state’s use of deadly force: human rights law and international humanitarian law (IHL). The human rights model controls law enforcement operations generally, and it permits the state to kill a person not in custody only if necessary to prevent him from posing a threat of death or serious injury to others. IHL is that part of the laws of war that enforces minimum standards of humane treatment of individuals.16 As part of the lexspecialis of war, IHL displaces the human rights model during armed conflicts, granting the state broad authority to kill opposing combatants as well as civilians who are directly taking part in hostilities. Under this two-model dichotomy, extra-judicial, targeted killing of a person who is not an imminent threat can be legal only as permitted under IHL. However, conceding that IHL—as part of the laws of war—can apply to targeted killing might seem to grant the executive too much power to categorize suspected terrorists as combatants and then kill them off without a shred of process.

As we will show, a reasonable construction of IHL grants the executive considerable power to kill the state’s enemies. So for the sake of argument, we accept that the substantive legality of targeted killing depends on its consistency
with IHL.

I should note that Murphy and Radsan do point out that Boumedienne did extend the reach of due process to Guantanamo, blurring a clear line that had been drawn to exclude aliens in Eisentrager. However, it’s pretty clear that this would not extend to a fugitive like bin Laden, unless he had surrendered himself, since the US does not control Abbotabad. They propose that if the Executive has a clear standard of deciding who is to be targeted and who not, then that satisfies any implication of Boumedienne.

Now, if bin Laden was targeted out of revenge, it would have been illegal under international law. However, since he was a fugitive from justice, this is impossible to prove or disprove.

The bottom line here is that the killing without due process of bin Laden–and any other person, US citizen or not, who is outside of territory controlled by the United States– is legal, and the State–using the so-called State Secrets privilege– does not have to answer for it. The lack of due process is dangerous and shocking. But no one should argue that the killing of bin Laden was illegal under either US or international law. For that matter, bin Laden received due process under the Clinton Administration. By failing to surrender himself, he made himself a dangerous fugitive from justice. Under American law, it is not at all unusual for dangerous fugitives to be shot and killed on the basis that they were resisting arrest. And it takes almost nothing at all for a court to conclude that they were resisting.

For what it’s worth, I believe that capturing and trying bin Laden would have been infinitely preferable to killing him. In the eyes of his comrades, he’s now a martyr, and that martyrdom will fuel even more revenge killing. But no one listens to me, not even the Sideshow regulars.
Added: Gareth Porter tells me that I should have no optimism that the death of bin Laden will promote peace.

The idea that U.S. policy is now on the road to an “endgame” in Afghanistan glosses over a central problem: the publicly expressed U.S. determination to keep a U.S. combat presence in Afghanistan indefinitely is not an acceptable condition to the Taliban as a basis for negotiations.

A shame, since the only thing to really celebrate about the death of bin Laden, aside from the fact that he won’t be able to plot any more attacks against Americans or brag about getting away with past attacks, is that it might lead the US to be willing to depart. Since no one has shown me how killing bin Laden will raise anyone from the dead, there is therefore very little to celebrate.
Added: For a contrary point of view, see Cohn (member of the faculty at Thomas Jefferson School of Law, and a prolific writer on international law and human rights). She says,

Osama bin Laden and the “suspected militants” targeted in drone attacks should have been arrested and tried in U.S. courts or an international tribunal. Obama cannot serve as judge, jury and executioner. These assassinations are not only illegal; they create a dangerous precedent, which could be used to justify the targeted killings of U.S. leaders.

I agree with the first sentence, disagree with the claim of illegality as it relates to bin Laden in the last, and would emphasize that the fear that a president might usurp judicial powers (as appears to have happened with al-Awlaki) is why targeted killings should be opposed.

6 Responses to “The law on targeted killings. bin Laden v. al-Awlaki”

  1. Spot said

    I promised myself I wasn’t going to get into this issue and have been faithful to the promise well, until now.

    The post discusses the legal regimes and considerations well. I think bin Laden was clearly a combatant. As such, he was fair game to be killed, unless he surrendered or was otherwise rendered hors de combat.

    Reports on what he did or did not do are still sketchy, maybe intentionally so. Apparently, he definitely did not wave a white flag out the window and come out with his hands up.

    Again, based on reports, his wife was a combatant, and it is probably reasonable for the commandos to conclude every one in a room is a combatant if one of the people is. The only curious thing is that bin Laden’s wife was only wounded, while he was killed.

    • Charles II said

      Recognizing an issue as one for which there is no profit in engaging is great wisdom for a dog, Spot. For a human, too, for that matter. I hope that my post on the legality may educate a few people as to the status of the law and help us to have more intelligent conversations about other cases.

      The case of al-Awlaki is particularly important, because I have seen no evidence that he personally engaged in violence. He is accused of having counseled some of the 911 hijackers and of having known about the crime in advance. If incitement alone is a capital crime whose sentence can be carried out on the say-so of a president, there may well be pastors and priests associated with the anti-abortion movement who are equally deserving of death.

      While slippery slope arguments are usually not persuasive, this case does appear to create troubling precedents. Putting the power of life and death into the hands of one man makes him a monarch, and it was in part for the misuse of judicial power by a monarch that we severed our ties with Britain.

      • Most of the lawyers I know are in Spot’s corner. The question of whether it was a moral thing to do is up for debate; the question of whether it was legal seems to be on far firmer ground.

      • Charles II said

        I have invited Marjorie Cohn to comment, PW. I think this is an important issue for people who care about human rights to get right, precisely because (a) the case is weak when applied to bin Laden and (b) asserting that the government has no right to kill bin Laden seems to (and probably does) put an impossible burden on the government.

        This matters if one wants to speak to the broad mass of people, who see the simple issues of putting soldiers’ lives at risk, and may not see the complex issues of how granting leaders power may lead to unforeseen abuses, including tyranny.

        Also, I don’t think the question of morality is actually of much interest. What should be debated is whether capturing and trying terrorists as criminals is more effective at combating terrorism than killing them is. I strongly believe that exposing the venality of terrorism–including state terrorism–is important to reducing the attraction of it. People are drawn to organized violence through notions like honor and holiness. In the cold light of reality, it is much more like the dank backroom of the butcher shop, reeking of corruption. If people signing up for terrorism came to see it as more like the butcher shop than the altar of God, they might be less inclined to do it.

      • jo6pac said

        Most of the lawyers I know are in Spot’s corner.

        After ww11 they didn’t do this and the criminals were way beyond this one or any one else at this time except Amerika. I really don’t care who winning the vote on this it’s WRONG.

        Thanks Charles

      • Charles II said

        I mentioned Rommel, Jo, because there is a parallel with bin Laden. The Allies did attempt to assassinate Rommel during a time of war. He was an enemy commander and therefore fair game on or off the battlefield (they did not, however, try to assassinate him when he was with his wife and child).

        The difference between the killing of bin Laden and what happened at the end of World War II is two-fold. At the end of World War II, the war criminals were in custody, no longer able to do harm. However, in Japan, a number of war criminals were executed.

        The morality of the killing of bin Laden hinges in part on facts we don’t have, specifically, what level of threat the soldiers in the compound felt. I do think that killing him in the presence of his family was a wrong against his family.

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