Raha Wala On the Al-Aulaqi Killing

Raha Wala of Human Rights First writes in with the following objections to my analysis of the Anwar Al-Aulaqi killing:

I don’t know if killing Aulaqi was legal because I don’t know what factual basis there was for it. But I do know that Ben’s criteria for justifying an extrajudicial killing are far from accurate under established principles and rules of international law. In justifying Al Aulaqi’s killing, Ben notes that he’s 1) part of the enemy as defined by the AUMF; 2) has been on notice that he’s regarded as such; 3) has not attempted to surrender; 4) is believed to be playing an active, operational role in attacks against the United States; and 5) is camped out in a country that’s unable to exercise civilian authority to deal with him.  Readers of his post could come away thinking that this list constitutes sufficient legal justification for a lethal targeting operation, but it doesn’t.  Some of the criteria on Ben’s list are irrelevant and others seriously confuse the required analysis. First, with respect to the scope of the AUMF.  Assuming that Al Aulaqi was considered “part of” the enemy forces within the AUMF, that does not itself authorize a targeted killing operation against him.  The scope of the AUMF and the scope of the ongoing armed conflict(s) are two different things, and it’s a serious analytical mistake to conflate them.  But even assuming that Al Aulaqi was part of an enemy force that’s a party to an ongoing armed conflict with the United States, there are rules of engagement under international law and domestic implementing law that constrain the use of force.  That brings me to the other criteria that Ben offers. With respect to notice, I’m not aware of any legal sources that suggest that notice needs to be provided to a valid military target prior to an attack (there are issues with respect to notice due to civilians in certain use of force contexts, but those issues don’t apply here).  Likewise, providing notice isn’t likely to help in securing legal justification for the attack in this situation (though it could in other contexts). On the issue of surrender, again, the fact that Al Aulaqi had not made an attempt to surrender doesn’t appear to be particularly relevant in my mind.  Of course, had he offered to surrender, the United States would have been prohibited from killing him under the laws of war or other applicable laws. Regarding Yemen’s inability or unwillingness to exercise civilian law enforcement authority, that’s a question that speaks more to jus ad bellum use of force considerations than to whether the United States is permitted to specifically target Al Aulaqi.  In other words, while it may have been necessary for the government to do the “unwilling or unable” analysis, doing so would not have been sufficient to justify the targeted killing.  The aforementioned rules of engagement would still apply. This brings me to Al Aulaqi’s purported “active, operational” role in Al Qaeda.  This is the criteria that comes closest to actually addressing the legal justification for the targeted killing operation.  In order to be able to target an individual under the law of armed conflict, he needs to be directly participating in hostilities, or serving in a continuous combat function with an armed group party to the conflict.  As mentioned, I don’t know if Al Aulaqi met that criteria, but I will say that merely having an “active, operational” role in al Qaeda wouldn’t cut it.  Cooks play active, operational roles in armed groups, as do financiers.  Neither, without a more direct connection to actual hostilities, can be targeted for killing under the laws of war.  I’ll leave to others to determine whether Al Aulaqi met the threshold requirements.

Two quick points in response. First, the post to which Raha is responding was not about the international law of targeting; it was about due process. There is some overlap between the two bodies of law, but they are not the same thing. So while I agree with Raha that notice and opportunity to surrender are irrelevant for purposes of international law, they are not irrelevant at all for due process purposes, in my view. Second, I did not list the factors to which Raha objects as general "criteria justifying an extrajudicial killing." I listed them, rather, as the features of Al-Aulaqi's case that cumulatively make me comfortable with his targeting as a due process matter.