Al-Aulaqi  v. Obama : When Does the President Have the Legal Authority to Target a U.S. Citizen? - PowerPoint PPT Presentation

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Al-Aulaqi  v. Obama : When Does the President Have the Legal Authority to Target a U.S. Citizen?. Prof. Robert F. Turner, SJD Center for National Security Law University of Virginia School of Law Columbia Law School Federalist Society September 20, 2010.

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Al aulaqi v obama when does the president have the legal authority to target a u s citizen l.jpg

Al-Aulaqi  v. Obama: When Does the President Have the Legal Authority to Target a U.S. Citizen?

Prof. Robert F. Turner, SJD

Center for National Security Law

University of Virginia School of Law

Columbia Law School Federalist Society

September 20, 2010


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Is President ObamaAnother “George W. Bush”?


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Is President ObamaAnother George W. Bush?

Presidential signing statements


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Is President ObamaAnother George W. Bush?

Presidential signing statements

State Secrets Privilege


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Is President ObamaAnother George W. Bush?

Presidential signing statements

State Secrets Privilege

Wartime

“surge”


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Is President ObamaAnother George W. Bush?

Presidential signing statements

State Secrets Privilege

Wartime

“surge”

Detention without trial


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Is President ObamaAnother George W. Bush?

Presidential signing statements

State Secrets Privilege

Extrajudicial “targeted killings”

Wartime

“surge”

Detention without trial


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Is President ObamaAnother George W. Bush?

I’m only going to focus on the last of these right now, but I will be happy to address these other issues during Q&A or after the program.

Presidential signing statements

State Secrets Privilege

Extrajudicial “targeted killings”

Wartime

“surge”

Detention without trial


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Is President ObamaAnother George W. Bush?

I’m only going to focus on the last of these right now, but I will be happy to address these other issues during Q&A or after the program.

In his first year in office, President Obama authorized more Predator drone strikes than Bush did in 8 years.

Presidential signing statements

State Secrets Privilege

Extrajudicial “targeted killings”

Wartime

“surge”

Detention without trial


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Unmanned Dronesand “Targeted Killings”


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Al-Aulaqi  v. Obama[filed 30 August 2010]

Lawsuit filed in DC District Court on behalf of Yemeni father of U.S.-born Anwar Al-Aulaqi, who is reported by the media to be on a list of al Qaeda members who may be killed on sight.


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When Does the President Have the Legal Authority to Target a U.S. Citizen?

  • Lethal force may be used against wrongdoers to protect human life under U.S. law governing self defense and defense of others.


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When Does the President Have the Legal Authority to Target a U.S. Citizen?

  • Lethal force may be used against wrongdoers to protect human life under U.S. law governing self defense and defense of others.

That’s why the FBI has hostage rescue units

with trained snipers.


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When Does the President Have the Legal Authority to Target a U.S. Citizen?

Lethal force may be used during armed conflict when he is fulfilling his role as Commander in Chief to defeat the enemy and an American has elected to join the enemy force.


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When Does the President Have the Legal Authority to Target a U.S. Citizen?

If one of the 9/11 hijackers had been a known American citizen, that would not have immunized the plane from attack to prevent it from flying into the South Tower of the WTC, the White House or Capitol Building.


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Who is Anwar Al-Aulaqi?


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Who is Anwar Al-Aulaqi?

9/11 Report links him to two of the hijackers of American Airline

Flight 77


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Who is Anwar Al-Aulaqi?

184 innocent people died when that plane flew into the Pentagon.

9/11 Report links him to two of the hijackers of American Airline

Flight 77


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Who is Anwar Al-Aulaqi?

184 innocent people died when that plane flew into the Pentagon.

The hijackers spent many hours alone with al-Awlaki in San Diego before the attacks of 9/11.

9/11 Report links him to two of the hijackers of American Airline

Flight 77


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Who is Anwar Al-Aulaqi?

184 innocent people died when that plane flew into the Pentagon.

There is good reason to believe Awlaki at least had advance knowledge of the 9/11 attacks.

The hijackers spent many hours alone with al-Awlaki in San Diego before the attacks of 9/11.

9/11 Report links him to two of the hijackers of American Airline

Flight 77


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Who is Anwar Al-Aulaqi?

Maj. Nidal Hasan

Ft. Hood

9/11 Report ties him to two of the hijackers of American Airline

Flight 77


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Who is Anwar Al-Aulaqi?

Murdered 13, wounded 30

Maj. Nidal Hasan

Ft. Hood

9/11 Report ties him to two of the hijackers of American Airline

Flight 77


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Who is Anwar Al-Aulaqi?

Murdered 13, wounded 30

Maj. Nidal Hasan

Ft. Hood

Al-Awlaki told Hasan killing civilians was permissible and later praised his attack.

9/11 Report ties him to two of the hijackers of American Airline

Flight 77


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Who is Anwar Al-Aulaqi?

Murdered 13, wounded 30

In March 2010, al-Awlaki released a tape denouncing President Obama for trying “to portray the operation of brother Nidal Hasan as an individual act of violence from an estranged individual. . . . Until this moment the administration is refusing to release the e-mails exchanged between myself and Nidal.”

Maj. Nidal Hasan

Ft. Hood

Al-Awlaki told Hasan killing civilians was permissible and later praised his attack.

9/11 Report ties him to two of the hijackers of American Airline

Flight 77


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Who is Anwar Al-Aulaqi?

Umar Farouk Abdulmutallab

Christmas Day Bomber

Maj. Nidal Hasan

Ft. Hood

9/11 Report ties him to two of the hijackers of American Airline

Flight 77


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Who is Anwar Al-Aulaqi?

Reportedly said al-Awlaki was “one of his al Qaeda trainers” in planning the attack.

Umar Farouk Abdulmutallab

Christmas Day Bomber

Maj. Nidal Hasan

Ft. Hood

9/11 Report ties him to two of the hijackers of American Airline

Flight 77


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Who is Anwar Al-Aulaqi?

Reportedly said al-Awlaki was “one of his “al Qaeda trainers” in planning the attack.

Umar Farouk Abdulmutallab

Christmas Day Bomber

Maj. Nidal Hasan

Ft. Hood

Yemini official said Christmas bomber Abdulmutallab was trained and equipped with explosives in a house in Yemen “built by al-Awlaki.”

9/11 Report ties him to two of the hijackers of American Airline

Flight 77


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Who is Anwar Al-Aulaqi?

Umar Farouk Abdulmutallab

Christmas Day Bomber

Maj. Nidal Hasan

Ft. Hood

9/11 Report ties him to two of the hijackers of American Airline

Flight 77

Faisal Shahzad

Time Square

Bomber


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Who is Anwar Al-Aulaqi?

Shahzad said al-Awlaki was his “inspiration” for

the planned

attack.

Umar Farouk Abdulmutallab

Christmas Day Bomber

Maj. Nidal Hasan

Ft. Hood

9/11 Report ties him to two of the hijackers of American Airline

Flight 77

Faisal Shahzad

Time Square

Bomber


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Who is Anwar Al-Aulaqi?

“I pray that Allah destroys America and all its allies.”

- Anwar al-Aulaqi

February 2009


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Who is Anwar Al-Aulaqi?

Oh – while he isn’t big on successful women (he won’t shake hands), he has several arrests for prostitution.


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Who is Anwar Al-Aulaqi?

Umar Farouk Abdulmutallab

Christmas Day Bomber

Maj. Nidal Hasan

Ft. Hood

“… terrorist number one.”

- Rep. Jane Harmon (D-CA)

House Permanent Select Committee

on Intelligence

9/11 Report ties him to two of the hijackers of American Airline

Flight 77

Faisal Shahzad

Time Square

Bomber


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Al-Aulaqi  v. Obama[filed 30 August 2010]

The central theme to the case is that al-Aulaqi is hiding in Yemen, which is “far from any field of armed conflict.”

Indeed, the language “outside of armed conflict” is used at least a dozen times in 11 pages. The Complaint says: “The United States is not at war with Yemen, or within it.”


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Is the United States engaged in a “war” or “armed conflict” with al Qaeda and its allies?

Fundamental Question


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Is the United States engaged in a “war” or “armed conflict” with al Qaeda and its allies?

Fundamental Question

Who has authority to make that decision?

  • The UN Security Council?

  • NATO

  • Congress

  • The President

  • The U.S. Supreme Court


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Is the United States engaged in a “war” or “armed conflict” with al Qaeda and its allies?

Fundamental Question

Who has authority to make that decision?

. . . or is it the

  • The UN Security Council?

  • NATO

  • Congress

  • The President

  • The U.S. Supreme Court


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America is at warand may legally detain enemy combatants for the duration of hostilities

The UN Security Council recognized this is an Armed Conflict.

Security Council Resolution 1373

(Sept. 12, 2001)

Unanimously declared that the 9/11 attacks constituted “a threat to international peace and security” and reaffirmed “the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations . . . .”

  • AUMF 18 Sept. 2001 Public Law 107-40 [S.J. Res. 23] Congress authorized the use of military force under the War Powers Resolution;

  • Both PresidentsBush and Obama have repeatedly confirmed American is at “war.”

  • Supreme Court has said LOAC applies (Hamdi, Hamdan) and it is lawful to detain enemy combatants without trial for the duration of the conflict.


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UN Security Council Resolution 1368 Sept. 12, 2001

“The Security Council,

Reaffirming the principles and purposes of the Charter of the United Nations,

Determined to combat by all means threats to international peace and security caused by terrorist acts,

Recognizing the inherent right of individual or collective self-defence in accordance with the Charter . . . .


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UN Security Council Resolution 1368 Sept. 12, 2001

“The Security Council,

Reaffirming the principles and purposes of the Charter of the United Nations,

Determined to combat by all means threats to international peace and security caused by terrorist acts,

Recognizing the inherent right of individual or collective self-defence in accordance with the Charter . . . .

ARTICLE 51

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”

What does the UN Charter actually say about the right of “individual and collective self-defence?”


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UN Security Council Resolution 1368 Sept. 12, 2001

“The Security Council,

Reaffirming the principles and purposes of the Charter of the United Nations,

Determined to combat by all means threats to international peace and security caused by terrorist acts,

Recognizing the inherent right of individual or collective self-defence in accordance with the Charter . . . .

ARTICLE 51

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”


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UN Security Council Resolution 1368 Sept. 12, 2001

“if an armed attack occurs”

“The Security Council,

Reaffirming the principles and purposes of the Charter of the United Nations,

Determined to combat by all means threats to international peace and security caused by terrorist acts,

Recognizing the inherent right of individual or collective self-defence in accordance with the Charter . . . .

ARTICLE 51

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”


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UN Security Council Resolution 1368 Sept. 12, 2001

In Resolution 1373 (28 Sept. 2001), the Security Council declared that the 9/11 attacks “constitute a threat to international peace and security,” and reaffirmed “the inherent right of individual or collective self-defence as . . . recognized by the Charter of the United Nations . . . .”

“The Security Council,

Reaffirming the principles and purposes of the Charter of the United Nations,

Determined to combat by all means threats to international peace and security caused by terrorist acts,

Recognizing the inherent right of individual or collective self-defence in accordance with the Charter . . . .

This is language of the Law of Armed Conflict, not law enforcement.


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UN Security Council Resolution 1368 Sept. 12, 2001

In Resolution 1373 (28 Sept. 2001), the Security Council declared that all acts of international terrorism “constitute a threat to international peace and security,” and reaffirmed “the inherent right of individual or collective self-defence as . . . recognized by the Charter of the United Nations . . . .”

“The Security Council,

Reaffirming the principles and purposes of the Charter of the United Nations,

Determined to combat by all means threats to international peace and security caused by terrorist acts,

Recognizing the inherent right of individual or collective self-defence in accordance with the Charter . . . .

This is language of the Law of Armed Conflict, not “law enforcement.”

This is language of the Law of Armed Conflict, not law enforcement.


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America is at warand may legally detain enemy combatants for the duration of hostilities

Security Council Resolution 1373

(Sept. 12, 2001)

Unanimously declared that the 9/11 attacks constituted “a threat to international peace and security” and reaffirmed “the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations . . . .”

THIS WAS THE LANGUAGE OF ARMED CONFLICT AND NOT LAW ENFORCEMENT.

Also on September 12, 2001, the North Atlantic Council formally invoked Article 5 of the NATO Treaty, which provides:

“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all . . . .”

  • AUMF 18 Sept. 2001 Public Law 107-40 [S.J. Res. 23] Congress authorized the use of military force under the War Powers Resolution;

  • Both PresidentsBush and Obama have repeatedly confirmed American is at “war.”

  • Supreme Court has said LOAC applies (Hamdi, Hamdan) and it is lawful to detain enemy combatants without trial for the duration of the conflict.


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America is at warand may legally detain enemy combatants for the duration of hostilities

Security Council Resolution 1373

(Sept. 12, 2001)

Unanimously declared that the 9/11 attacks constituted “a threat to international peace and security” and reaffirmed “the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations . . . .”

THIS WAS THE LANGUAGE OF ARMED CONFLICT AND NOT LAW ENFORCEMENT.

Also on September 12, 2001, the North Atlantic Council formally invoked Article 5 of the NATO Treaty, which provides:

“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all . . . .”

  • AUMF 18 Sept. 2001 Public Law 107-40 [S.J. Res. 23] Congress authorized the use of military force under the War Powers Resolution;

  • Both PresidentsBush and Obama have repeatedly confirmed American is at “war.”

  • Supreme Court has said LOAC applies (Hamdi, Hamdan) and it is lawful to detain enemy combatants without trial for the duration of the conflict.

Once again, language of the Law of Armed Conflict and not “law enforcement.”


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Congress Has FormallyAuthorized the Use of Military Force


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Authorization for Use of Military ForceSeptember 18, 2001 • Public Law 107-40 [S. J. RES. 23]

“SEC. 2. . . . [T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”


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Authorization for Use of Military ForceSeptember 18, 2001 • Public Law 107-40 [S. J. RES. 23]

“SEC. 2. . . . [T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

The combined vote was

518-1


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The President (both Bush and Obama) has recognized America is at “War”


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America is at war and may legally detain enemy combatants for the duration of hostilities

On September the 11th, enemies of freedom committed an act of war against our country.

-President Bush

Sept. 20, 2001

  • UNSC Res 1368 affirmed the right of ‘self-defence” (language of armed conflict);

  • NATO declared this was an “armed attack” under Article 5 of the treaty;

  • Public Law 107-40 [S. J. RES. 23] Congress authorized the use of military force under the War Powers Resolution;

  • Both Bush and Obama administrations have said we are in a “war.”

  • Supreme Court has said LOAC applies (Hamdi, Hamdan)

This is not the “War on Poverty.”


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America is at war and may legally detain enemy combatants for the duration of hostilities

“We are at war . . . .”

-President Obama

Jan. 7, 2010

  • UNSC Res 1368 affirmed the right of ‘self-defence” (language of armed conflict);

  • NATO declared this was an “armed attack” under Article 5 of the treaty;

  • Public Law 107-40 [S. J. RES. 23] Congress authorized the use of military force under the War Powers Resolution;

  • Both Bush and Obama administrations have said we are in a “war.”

  • Supreme Court has said LOAC applies (Hamdi, Hamdan)

This is not the “War on Poverty.”


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The Supreme Court Has RecognizedAmerica is Engaged in Armed Conflict

The Supreme Court has repeatedly said LOAC applies (e.g., Hamdi, Hamdan) in the armed conflict with al Qaeda and its allies.


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Harold Koh2010 Meeting of the American Society of International Law (25 March 2010)

“[I]n this ongoing armed conflict, the United States has the authority under international law . . . to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaeda leaders who are planning attacks.”


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Harold Koh2010 Meeting of the American Society of International Law (25 March 2010)

“[S[ome] have suggested the very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and therefore lawful targets under international law.”


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Harold Koh2010 Meeting of the American Society of International Law (25 March 2010)

“[S[ome] have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.”


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Harold Koh2010 Meeting of the American Society of International Law (25 March 2010)

Note Dean Koh draws a distinction between the rights of states during armed conflict and the additional and distinct right of self-defense.

“[S[ome] have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.”


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Harold Koh2010 Meeting of the American Society of International Law (25 March 2010)

Note Dean Koh draws a distinction between the rights of states during armed conflict and the additional and distinct right of self-defense.

In Dean Koh’s view, terrorists targeted far from areas of ongoing armed conflict can best be justified as acts of self-defense.

“[S[ome] have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.”


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Harold Koh2010 Meeting of the American Society of International Law (25 March 2010)

Note Dean Koh draws a distinction between the rights of states during armed conflict and the additional and distinct right of self-defense.

In Dean Koh’s view, terrorists targeted far from areas of ongoing armed conflict can best be justified as acts of self-defense.

I don’t disagree, but I think they can also be targeted under the LOAC.

“[S[ome] have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.”


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America is at warand may legally detain enemy combatants for the duration of hostilities

Security Council Resolution 1373

(Sept. 12, 2001)

Unanimously declared that the 9/11 attacks constituted “a threat to international peace and security” and reaffirmed “the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations . . . .”

THIS WAS THE LANGUAGE OF ARMED CONFLICT AND NOT LAW ENFORCEMENT.

That same day, the North Atlantic Council formally invoked Article 5 of the NATO Treaty:

“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all . . . .”

  • The ACLU

  • Anwar Al-Aulaqi’s father.

  • President Bush

  • President Obama

  • U.S. House (420-1)

  • U.S. Senate (98-0)

  • The Supreme Court

  • UN Security Council

  • NATO

  • Harold Koh

Is America engaged in an armed conflict with al Qaeda, its members and allies?

This is not the “War on Poverty.”

  • AUMF 18 Sept. 2001 Public Law 107-40 [S.J. Res. 23] Congress authorized the use of military force under the War Powers Resolution;

  • Both PresidentsBush and Obama have repeatedly confirmed American is at “war.”

  • Supreme Court has said LOAC applies (Hamdi, Hamdan) and it is lawful to detain enemy combatants without trial for the duration of the conflict.

YOU BE THE JUDGE!


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America is at warand may legally detain enemy combatants for the duration of hostilities

Security Council Resolution 1373

(Sept. 12, 2001)

Unanimously declared that the 9/11 attacks constituted “a threat to international peace and security” and reaffirmed “the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations . . . .”

THIS WAS THE LANGUAGE OF ARMED CONFLICT AND NOT LAW ENFORCEMENT.

That same day, the North Atlantic Council formally invoked Article 5 of the NATO Treaty:

“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all . . . .”

  • The ACLU

  • Anwar Al-Aulaqi’s father.

  • President Bush

  • President Obama

  • U.S. House (420-1)

  • U.S. Senate (98-0)

  • The Supreme Court

  • UN Security Council

  • NATO

  • Harold Koh

This is not the “War on Poverty.”

  • AUMF 18 Sept. 2001 Public Law 107-40 [S.J. Res. 23] Congress authorized the use of military force under the War Powers Resolution;

  • Both PresidentsBush and Obama have repeatedly confirmed American is at “war.”

  • Supreme Court has said LOAC applies (Hamdi, Hamdan) and it is lawful to detain enemy combatants without trial for the duration of the conflict.

Laws Enforcement

War

YOU BE THE JUDGE!


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America is at warand may legally detain enemy combatants for the duration of hostilities

Security Council Resolution 1373

(Sept. 12, 2001)

Unanimously declared that the 9/11 attacks constituted “a threat to international peace and security” and reaffirmed “the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations . . . .”

THIS WAS THE LANGUAGE OF ARMED CONFLICT AND NOT LAW ENFORCEMENT.

That same day, the North Atlantic Council formally invoked Article 5 of the NATO Treaty:

“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all . . . .”

This is not the “War on Poverty.”

  • AUMF 18 Sept. 2001 Public Law 107-40 [S.J. Res. 23] Congress authorized the use of military force under the War Powers Resolution;

  • Both PresidentsBush and Obama have repeatedly confirmed American is at “war.”

  • Supreme Court has said LOAC applies (Hamdi, Hamdan) and it is lawful to detain enemy combatants without trial for the duration of the conflict.


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Old Thinking About“Battlefields” and Armed Conflict


Old thinking l.jpg

Old Thinking

There was a time when soldiers would routinely mass on opposite sides of a “battlefield” and charge towards each other until one side retreated or had been destroyed.


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Old Thinking


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Old Thinking


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Where Is the “Battlefield”in the Struggle Against al Qaeda?


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

In June 1996 it was in Saudi Arabia.


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

In August 1998 it was in Kenya


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

. . . and Tanzania


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Where Is the “Battlefield”in the Struggle Against al Qaeda?


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

The U.S.S. Cole was attacked in October 2000 in Yemen.


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

Anyone who says there is not a “war” going on in Yemen is out of touch with reality.

The U.S.S. Cole was attacked in October 2000 in Yemen.


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

Anyone who says there is not a “war” going on in Yemen is out of touch with reality.

The U.S.S. Cole was attacked in October 2000 in Yemen.


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

Anyone who says there is not a “war” going on in Yemen is out of touch with reality.

The U.S.S. Cole was attacked in October 2000 in Yemen.

Our assistance to the Government of Yemen against al Qaeda is by CONSENT and thus fully lawful under international law.


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Where Is the “Battlefield”in the Struggle Against al Qaeda?


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

In 2001 it was here in

New York City


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Where Is the “Battlefield”in the Struggle Against al Qaeda?


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

Quick Hypothetical:


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

Quick Hypothetical: You are the NSC Legal Adviser and have just been told United Flight 175 is about to hit the south tower with more than 50 American citizens on board.


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

Do you tell the President New York City is not a “battlefield” and he can’t order the “extrajudicial killing” of American citizens?

Quick Hypothetical: You are the NSC Legal Adviser and have just been told United Flight 175 is about to hit the south tower with more than 50 American citizens on board.


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

Do you tell the President New York City is not a “battlefield” and he can’t order the “extrajudicial killing” of American citizens?

While you are on hold trying to get a legal opinion from the ACLU . . . .

Quick Hypothetical: You are the NSC Legal Adviser and have just been told United Flight 175 is about to hit the south tower with more than 50 American citizens on board.


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

Do you tell the President New York City is not a “battlefield” and he can’t order the “extrajudicial killing” of American citizens?

. . . or to get through to a federal judge . . .

While you are on hold trying to get a legal opinion from the ACLU . . . .

Quick Hypothetical: You are the NSC Legal Adviser and have just been told United Flight 175 is about to hit the south tower with more than 50 American citizens on board.


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

Do you tell the President New York City is not a “battlefield” and he can’t order the “extrajudicial killing” of American citizens?

. . . or to get through to a federal judge . . .

While you are on hold trying to get a legal opinion from the ACLU . . . .

Quick Hypothetical: You are the NSC Legal Adviser and have just been told United Flight 175 is about to hit the south tower with more than 50 American citizens on board.

Time runs out!


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

Do you tell the President New York City is not a “battlefield” and he can’t order the “extrajudicial killing” of American citizens?

. . . or to get through to a federal judge . . .

While you are on hold trying to get a legal opinion from the ACLU . . . .

Quick Hypothetical: You are the NSC Legal Adviser and have just been told United Flight 175 is about to hit the south tower with more than 50 American citizens on board.

Time runs out!


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

Since 9/11, we have seen attacks in London, . . .


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

Since then, we have seen attacks in London, Madrid . . .


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

. . . And many other places around the world.


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

. . . And many other places around the world.

In many if not most of them, al-Awlaki’s name has come up during the investigation.


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

  • In modern war, the “battlefield” is where you find the enemy.


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

  • In modern war, the “battlefield” is where you find the enemy.

  • With al Qaeda, that may be Afghanistan, Pakistan, Yemen, Somalia, or virtually anywhere else in the world.


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Where Is the “Battlefield”in the Struggle Against al Qaeda?

  • In modern war, the “battlefield” is where you find the enemy.

  • With al Qaeda, that may be Afghanistan, Pakistan, Yemen, Somalia, or virtually anywhere else in the world.

This is nothing new.


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During World War IICongress Declared War Against Germany


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During World War IICongress Declared War Against Germany

But when Hitler sent Rommel to fight in North Africa, we responded by sending Patton.


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During World War IICongress Declared War Against Germany

But when Hitler sent Rommel to fight in North Africa, we responded by sending Patton.


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During World War IICongress Declared War Against Germany

But when Hitler sent Rommel to fight in North Africa, we responded by sending Patton.


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During World War IICongress Declared War Against Germany

Congress did not “declare war” against the countries of

North Africa.

But when Hitler sent Rommel to fight in North Africa, we responded by sending Patton.


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During World War IICongress Declared War Against Germany

Congress did not “declare war” against the countries of

North Africa.

But when Hitler sent Rommel to fight in North Africa, we responded by sending Patton.

We fought the enemy where we found him.


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During World War IICongress Declared War Against Germany

And that included in occupied FRANCE!

Congress did not “declare war” against the countries of

North Africa.

But when Hitler sent Rommel to fight in North Africa, we responded by sending Patton.

We fought the enemy where we found him.


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The Significance ofAl-Aulaqi’s  U.S. Citizenship


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Historically, joining the armed forces of a foreign state engaged in hostilities against the United States would lose U.S. citizenship

8 U.S.C. § 1481(3)(A)


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Historically, joining the armed forces of a foreign state engaged in hostilities against the United States would lose U.S. citizenship

Today there must be clear evidence of an intent to give up citizenship.

8 U.S.C. § 1481(3)(A)


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Historically, joining the armed forces of a foreign state engaged in hostilities against the United States would lose U.S. citizenship

Today there must be clear evidence of an intent to give up citizenship.

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

Al-Awlaki is certainly guilty of treason.

8 U.S.C. § 1481(3)(A)


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Historically, joining the armed forces of a foreign state engaged in hostilities against the United States would lose U.S. citizenship

Today there must be clear evidence of an intent to give up citizenship.

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

8 U.S.C. § 1481(3)(A)


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Ex parte Quirin317 U.S. 1, 37-38 (1942)

“Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.”


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Ex parte Quirin317 U.S. 1, 37-38 (1942)

“Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.”

Quirin was cited with authority by both majority and dissenting justices in Hamdi, Hamdan, and other post-9/11 cases.


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“Are Drone Strikes Murder?”National Journal, Jan. 9, 2010

Mehsud was killed “in Pakistan, a country with which the United States is not at war.”

“Are Drone Strikes Murder?”National Journal, Jan. 9, 2010


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“Are Drone Strikes Murder?”National Journal, Jan. 9, 2010

“[T]he skeptics’ complaints boil down to some basic questions . . . . Chief among them is whether a state of armed conflict—usually a prerequisite for the legal use of violent force—actually exists in the places outside Afghanistan where the United States is using drones to kill its enemies.”


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Authorization for Use of Military ForceSeptember 18, 2001 • Public Law 107-40 [S. J. RES. 23]

Congress authorized the use of armed force against organizations and “persons,” not just countries.

“SEC. 2. . . . [T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”


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Authorization for Use of Military ForceSeptember 18, 2001 • Public Law 107-40 [S. J. RES. 23]

By the National Journal’s logic, it would have been illegal for the U.S. military to attack Gen. Rommel’s forces in North Africa during WW II!

“SEC. 2. . . . [T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”


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“Are Drone Strikes Murder?”National Journal, Jan. 9, 2010

“There simply is no right to use military force against a terrorist suspect far from any battlefield.”

- Mary Ellen O’Connell

University of Notre Dame

Law School


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“Are Drone Strikes Murder?”National Journal, Jan. 9, 2010

“There simply is no right to use military force against a terrorist suspect far from any battlefield.”

- Mary Ellen O’Connell

University of Notre Dame

Law School

This is absolutely

ABSURD!!


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“Are Drone Strikes Murder?”National Journal, Jan. 9, 2010

International law has always permitted attacking enemy military forces during war wherever they could be found – including sleeping in tents far from any “battlefield.”

“There simply is no right to use military force against a terrorist suspect far from any battlefield.”

- Mary Ellen O’Connell

University of Notre Dame

Law School

This is absolutely

ABSURD!!


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Predators Are As Legal as Artillery, Helicopters, or Rifles


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Predators Are As Legal as Artillery, Helicopters, or Rifles

If you use any weapon to deliver a chemical or biological weapon or against a hospital or other protected target, it can be illegal.


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Predators Are As Legal as Artillery, Helicopters, or Rifles

But there are many things about the Predator that make it more desirable under international law.

If you use any weapon to deliver a chemical or biological weapon or against a hospital or other protected target, it can be illegal.


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Predators Are As Legal as Artillery, Helicopters, or Rifles

But there are many things about the Predator that make it more desirable under international law.

If you use any weapon to deliver a chemical or biological weapon or against a hospital or other protected target, it can be illegal.

The operator has access to a tremendous amount of information, and can actually see his target as he fires the missile – greatly reducing the risks of poor intelligence and collateral damage.


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Predators Are As Legal as Artillery, Helicopters, or Rifles

But there are many things about the Predator that make it more desirable under international law.

If he sees children in his monitor, he can decide not to fire the missile.

If you use any weapon to deliver a chemical or biological weapon or against a hospital or other protected target, it can be illegal.

The operator has access to a tremendous amount of information, and can actually see his target as he fires the missile – greatly reducing the risks of poor intelligence and collateral damage.


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Predators Are As Legal as Artillery, Helicopters, or Rifles

But there are many things about the Predator that make it more desirable under international law.

If he sees children in his monitor, he can decide not to fire the missile.

If you use any weapon to deliver a chemical or biological weapon or against a hospital or other protected target, it can be illegal.

The Hellfire missile is far more discriminating than artillery or gravity bombs, which makes collateral damage far less likely.

The operator has access to a tremendous amount of information, and can actually see his target as he fires the missile – greatly reducing the risks of poor intelligence and collateral damage.


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Predators Are As Legal as Artillery, Helicopters, or Rifles

But there are many things about the Predator that make it more desirable under international law.

If he sees children in his monitor, he can decide not to fire the missile.

If you use any weapon to deliver a chemical or biological weapon or against a hospital or other protected target, it can be illegal.

The reduced risk to the American operator is also a plus to some of us.

The Hellfire missile is far more discriminating than artillery or gravity bombs, which makes collateral damage far less likely.

The operator has access to a tremendous amount of information, and can actually see his target as he fires the missile – greatly reducing the risks of poor intelligence and collateral damage.


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The Predator Works(NPR web site)

“Mehsud, who was accused by the Pakistani government of many deadly attacks, including the 2007 assassination of former Prime Minister Benazir Bhutto, had threatened the U.S. mainland.”


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It is NOT“Assassination”

Wash. Post, 1990


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“Assassination”

Murder committed for hire . . . A murder committed treacherously or by stealth or surprise, or by lying in wait.”

- Black’s Law Dictionary


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“Assassination”

“The murder of a person by lying in wait for him and then killing him, particularly the murder of prominent people from political motives, e.g., the assassination of President Kennedy.”

- Oxford Companion to Law (1980)


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“Assassination”

“The murder of a person by lying in wait for him and then killing him, particularly the murder of prominent people from political motives, e.g., the assassination of President Kennedy.”

- Oxford Companion to Law (1980)

Lawful acts of self-defense are not “murder”


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During the American RevolutionWe Intentionally Targeted British Officers and Indian Guides


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The Killing of Adm. Yamamoto

April 18, 1943, President Roosevelt sent 18 U.S. Navy P-38 aircraft to intercept an aircraft carrying Japanese Navy Commander-in-Chief Admiral Isoroku Yamamoto—who masterminded the Pearl Harbor attack in 1941—and shoot him down. That was a lawful military operation and not “assassination.


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Belligerent’s Privilegein Armed Conflict

Soldiers during armed conflict may kill the enemy without being guilty of murder or homicide.


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Belligerent’s Privilegein Armed Conflict

Soldiers during armed conflict may kill the enemy without being guilty of murder or homicide.

Or getting approval from a judge or jury.


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Are Terrorists LikeOsama Bin Laden Lawful Targets?

  • If evidence is clear they are engaged in an ongoing use of lethal force against the United States or a State requesting our aid;

  • If we cannot easily apprehend for trial or deter;

  • If our operation does not otherwise violate international law;

  • Yes, terrorist leaders are lawful targets.

See Robert F. Turner, In self-defense, U.S. has right to kill bin Laden, USA Today, Oct. 26, 1998.


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I look forward to taking questions when Mr. Manesfinishes his rebuttal.


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EXTRA SLIDES

  • The following slides were not used in this presentation.


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“Assassinations” and “Targeted” or “Extrajudicial” Killings by UAV Predator Drones


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Harold Koh2010 Meeting of the American Society of International Law

A brief and perhaps ironic digression.

In October 1990, I wrote the lead article in the Washington Post Outlook Section arguing that Saddam Hussein was a lawful target in Operation Desert Storm.


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Harold Koh2010 Meeting of the American Society of International Law

In October 1990, I wrote the lead article in the Washington Post Outlook Section arguing that Saddam Hussein was a lawful target in Operation Desert Storm.


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Harold Koh2010 Meeting of the American Society of International Law

In October 1990, I wrote the lead article in the Washington Post Outlook Section arguing that Saddam Hussein was a lawful target in Operation Desert Storm.

SecDef Dick Cheney had just fired the Chief of Staff of the Air Force for publicly stating that if Saddam did not withdraw Iraqi forces from Kuwait, we would intentionally target him if we had to use force to protect Kuwait.


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Harold Koh2010 Meeting of the American Society of International Law

We will discuss the “assassination” issue later, but I should note there was remarkably little criticism of my reasoning at the time (to my great surprise).

In October 1990, I wrote the lead article in the Washington Post Outlook Section arguing that Saddam Hussein was a lawful target in Operation Desert Storm.

SecDef Dick Cheney had just fired the Chief of Staff of the Air Force for publicly stating that if Saddam did not withdraw Iraqi forces from Kuwait, we would intentionally target him if we had to use force to protect Kuwait.


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Harold Koh2010 Meeting of the American Society of International Law

We will discuss the “assassination” issue later, but I should note there was remarkably little criticism of my reasoning at the time (to my great surprise).

In October 1990, I wrote the lead article in the Washington Post Outlook Section arguing that Saddam Hussein was a lawful target in Operation Desert Storm.

SecDef Dick Cheney had just fired the Chief of Staff of the Air Force for publicly stating that if Saddam did not withdraw Iraqi forces from Kuwait, we would intentionally target him if we had to use force to protect Kuwait.

Shortly after the war, DCI Bill Webster assured me they would have bombed Saddam in an instant had they been able to locate him with any confidence.


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Jus Ad Bellum Issues

  • Aggression

  • Self-Defense

  • State Responsibility

  • Consent


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Aggression

Article 2(4)

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”


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Self-Defense

Article 51

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. . . .”


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Jus In Bello Issues

  • Lawful Weapons?

  • Lawful Targets?

  • Lawful Shooters (USAF vs. CIA)?


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Are Terrorists LikeOsama Bin Laden Lawful Targets?

  • If evidence is clear they are engaged in an ongoing use of lethal force against the United States or a State requesting our aid;

  • If we cannot easily apprehend for trial or deter;

  • If our operation does not otherwise violate international law;

  • Yes, terrorist leaders are lawful targets.


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By What Theory Are TheyLawful Targets?

  • International law permits that which is not prohibited (Lotus Case, PCIJ, 1927);

  • Most laws govern State responsibility to other States;

  • Necessary self defense is an exception to prohibitions against using lethal force;

  • No treaty or custom protects terrorists as a class;

  • Terrorists are humani generis hostes (“common enemies of man”) like pirates and slave-traders.

  • As [unprivileged] “belligerents” they are lawful targets.


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U.N Security CouncilResolution 1189 (1998)

“The Security Council, . . .

Convinced that the suppression of acts of international terrorism is essential for the maintenance of international peace and security, and reaffirming the determination of the international community to eliminate international terrorism in all its forms and manifestations; . . .

Calls upon all States to adopt, in accordance with international law and as a matter of priority, effective and practical measures for security cooperation, for the prevention of such acts of terrorism, and for the prosecution and punishment of their perpetrators.


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“Assassinations byUAV Predator Drones

We are killing the enemy’s leaders (those responsible for the war), reducing the need to kill more low-level fighters, and greatly minimizing collateral damage – all while keeping our own people out of harm’s way.

I think that’s GREAT!

More Predator attacks have occurred under President Obama than during two terms under George W. Bush.


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“Are Drone Strikes Murder?”National Journal, Jan. 9, 2010

Mehsud was killed “in Pakistan, a country with which the United States is not at war.”


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The Predator Works(NPR web site)

He was the top leader of the Taliban umbrella group, TTP, an alliance of five Taliban groups in Pakistan controlling thousands of fighters.

“[Baitullah] Mehsud, who was accused by the Pakistani government of many deadly attacks, including the 2007 assassination of former Prime Minister Benazir Bhutto, had threatened the U.S. mainland.”


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The Predator Works(NPR web site)

“[Baitullah] Mehsud, who was accused by the Pakistani government of many deadly attacks, including the 2007 assassination of former Prime Minister Benazir Bhutto, had threatened the U.S. mainland.”

He was killed by Predator drone, August 5, 2009.


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The Predator Works(NPR web site)

Collateral damage was minimal – reportedly including his wife and bodyguards.

“[Baitullah] Mehsud, who was accused by the Pakistani government of many deadly attacks, including the 2007 assassination of former Prime Minister Benazir Bhutto, had threatened the U.S. mainland.”

Killed by Predator drone, August 5, 2009.


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It is not “Extrajudicial Killing”or “Murder”

  • Constitution vest Commander-in-Chief power in President

  • 18 Sept. 2001—Congress authorize use of armed force against al Qaeda and Taliban in AUMF, Public Law 107-40 [S.J. Res. 23]

  • Judges don’t travel around battlefields telling soldiers or commanders who can be killed.


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It is not “Extrajudicial Killing”or “Murder”

  • Constitution vest Commander-in-Chief power in President

  • 18 Sept. 2001—Congress authorize use of armed force against al Qaeda and Taliban in AUMF, Public Law 107-40 [S.J. Res. 23]

  • Judges don’t travel around battlefields telling soldiers or commanders who can be killed.

Virtually all killing during war is “extrajudicial,” but still lawful.


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“Are Drone Strikes Murder?”National Journal, Jan. 9, 2010

“Critics . . . say that so little is known about how decision makers create target lists and minimize collateral deaths, it’s impossible to say whether the administration is following the law.”


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“Are Drone Strikes Murder?”National Journal, Jan. 9, 2010

So we should start publicizing our war plans to be read by the enemy to keep the ACLU happy?

“Critics . . . say that so little is known about how decision makers create target lists and minimize collateral deaths, it’s impossible to say whether the administration is following the law.”


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“Are Drone Strikes Murder?”National Journal, Jan. 9, 2010

So we should start publicizing our war plans to be read by the enemy to keep the ACLU happy?

“Critics . . . say that so little is known about how decision makers create target lists and minimize collateral deaths, it’s impossible to say whether the administration is following the law.”

What will they do when they learn we permit soldiers to shoot the enemy on the battlefield without judicial or ACLU supervision?


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Al-Aulaqi  v. Obama[filed 30 August 2010]

Relief is sought on basis of:

  • Fourth Amendment “unreasonable seizure”;

  • Fifth Amendment deprivation of life without due process of law;

  • Alien Tort Statute “extrajudicial killing”’

  • Fifth Amendment due process failure to give notice.


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