Since 2001, the United States has killed as many as 4,500 people in “targeted killing” operations pursuant to its “war on terror” or “armed conflict with al-Qaeda and associated forces.”1 While thousands have been left dead and injured in the wars in Afghanistan and Iraq,2 these thousands of other killings occurred outside of those battlefields,3 and, until relatively recently, under a cloak of official—if implausible—secrecy. Even today, despite open public acknowledgement of these operations,4 the Obama administration continues to withhold basic data, including how many have been killed and where, and legal memos explaining its rationale for the power to use lethal military force worldwide.5
The first legal challenge to the targeted killing program came in 2010 after the reported authorization for the killing of a US citizen in Yemen.6 Early that year, media sources quoting anonymous officials reported that Anwar al-Aulaqi had been added to government “kill lists” maintained by the CIA and the military’s Joint Special Operations Command (JSOC), and that he was being actively pursued.7 The reports emerged in the context of an escalation in the targeted killing program more broadly. By the end of 2009, the Obama administration had conducted as many strikes in Pakistan as the Bush administration had conducted over two terms.8
Al-Aulaqi was ultimately killed in US drone strikes in Yemen on September 30, 2011, along with another US citizen, Samir Khan, and others. Two weeks later, another drone strike killed al-Aulaqi’s sixeen-year-old son, Abdulrahman al-Aulaqi, also an American citizen, as he was eating dinner outside with his teenage cousin.9
The lawsuit challenging the authorization for al-Aulaqi’s killing before it was carried out, brought by al-Aulaqi’s father acting as his next friend, raised arguments that addressed several continuing concerns with the program: the global scope of the battlefield, the standards for targeting, and the lack of adequate transparency. At its core, the suit sought to exercise a still much-needed check on a dangerous claim of executive power.
The Obama administration rationalizes its targeted killing program on the premise that, since 9/11, the United States has been in a continuous, global armed conflict with the Taliban, al-Qaeda, and associated forces, and that the United States may therefore use lethal force under the 2001 Authorization for the Use of Military Force (AUMF) and the laws of war against suspected enemies potentially wherever they may be found.10 The administration also asserts a national self-defense rationale for its targeted killing operations, which goes only to the question of whether the United States’ use of armed force violates the sovereignty of states in which targeting operations are taking place, and is distinct from the question of whether such use of armed force violates the rights of targeted individuals and bystanders.11
The lawsuit challenging the authorization for al-Aulaqi’s killing argued that armed conflict has a geographic dimension and exists only where there is intense and protracted fighting between organized armed groups12—conditions that were absent in Yemen at the time al-Aulaqi was being targeted.13 Even assuming arguendo the existence of an armed conflict between the United States and al-Qaeda that extends beyond Afghanistan, the lawsuit further argued that the particular group al-Aulaqi was said to be part of—al-Qaeda in the Arabian Peninsula (AQAP)—was not an “associated force” that could be brought within the fold of the AUMF.14
Even among experts who dispute a geographic limitation on armed conflict, there are questions about whether all the purported al-Qaeda “affiliates” and “adherents” the administration has identified as current or potential targets legitimately fall within the AUMF’s ambit.15 Administration officials have claimed or suggested AUMF authority to target so-called associated groups in at least half a dozen countries so far.16 Answers to those questions are critical, because it is the targeting of associated forces—not “core” al-Qaeda—that has driven the dramatic expansion and escalation of the targeted killing program since 2009.17
Given the argument that targeting al-Aulaqi was outside the context of armed conflict, the lawsuit argued that the appropriate legal framework for any use of lethal force against him was not the more permissible laws of war, but the narrower standards that govern law enforcement.18 Under the Constitution and International Human Rights Law, lethal force is prohibited in the absence of charge and trial, except as a last resort against a specific and imminent threat.19 The lawsuit argued that the placement of al-Aulaqi on the government’s kill lists amounted to a standing authorization to use lethal force against him, and was fundamentally inconsistent with those requirements.20
In February 2013, a Justice Department white paper discussing the authority to kill American citizens, which summarizes a still classified legal memorandum justifying the killing of al-Aulaqi, was leaked to the press.21 While the white paper identifies imminence as a criterion for targeting, it ultimately negates the requirement by stating that imminence does not require “clear evidence . . . [of] a specific attack . . . in the immediate future.”22 Moreover, the white paper makes clear that it applies only to a situation where the government believes that an individual is a “senior operational leader of an associated force;” it does not describe the outer edges of the administration’s claimed authority to use lethal force against Americans,23 and it does not at all describe the government’s claimed authority against foreign citizens, who have accounted for almost all of those killed in targeting operations.24
Even under the laws of war, there are constraints on the use of lethal force. In the context of armed conflict involving non-state armed groups—non-international armed conflict—the law-of-war requirement of distinction permits killing only if the target is “directly participating in hostilities.”25 Yet the administration, analogizing to situations of international armed conflict between nation states, has claimed the legal authority to kill anyone who is “part of” al-Qaeda or associated groups,26 suggesting a far broader net than the laws of war permit.27
The secrecy about the legal criteria that govern the administration’s targeting decisions was itself another issue in the lawsuit. Al-Aulaqi’s father claimed that his son’s Fifth Amendment right to due process entitled him to notice of the conduct that could subject a US citizen to killing by his government.28 Freedom of Information Act lawsuits have also been brought, seeking information about the legal standards for targeting, among other information, which the administration has continued to fight.29
The administration responded to the lawsuit by moving to dismiss it, claiming in part that judicial review would violate the separation of powers.30 In public statements, it has similarly taken the position that judicial review of its targeting decisions is inappropriate, reassuring the public that its decisions are nonetheless subject to rigorous internal review.31
The Supreme Court rejected a similar argument by the Bush administration in the case of another US citizen nearly a decade ago, in the case of Hamdi v. Rumsfeld. Yasser Hamdi was an American citizen captured in Afghanistan in 2001 and deemed by the executive to be an “enemy combatant.” When Hamdi brought a habeas corpus petition challenging the legality of his detention, the government initially argued that any judicial review of the executive’s war-time determination would be inappropriate. The Fourth Circuit rejected the government’s argument, finding that it would require the court to “embrac[e] a sweeping proposition—namely that, with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government’s say-so.”32 The Obama administration’s claim in Al-Aulaqi v. Obama was essentially no different—that its targeting decision, made pursuant to a closed unilateral process and secret standards and evidence, was entirely unreviewable. While the district court ultimately dismissed the Al-Aulaqi case on jurisdictional grounds,33 the decision was not appealed, leaving open the question of the availability of judicial review.34
Since the lawsuit, the administration has made some steps in the right direction, but the same fundamental concerns with the program remain. On May 23, 2013, President Obama gave a major national security speech in which he outlined a new policy guidance for targeting operations.35 The guidance outlines ostensibly narrower criteria for the use of lethal force “outside of areas of active hostilities”—requiring a “continuing, imminent threat,” infeasibility of capture, and a “near-certainty” that civilians will not be killed or injured.36 Exactly how these criteria are being interpreted is unknown; however, drone strikes in the weeks and months following the president’s speech make clear that the standards are, at bottom, discretionary, and that the administration’s claimed legal authority remains broader.37
In his speech, the president also made promises of greater transparency and accountability. He discussed a decision to declassify the targeting operations that killed al-Aulaqi, Samir Khan, Abdulrahman al-Aulaqi, and another American citizen, Jude Kenan Mohammed, as an effort to “facilitate transparency and debate on this issue”38 and stated that the administration would be “review[ing] proposals to extend oversight of lethal actions outside of warzones that go beyond our reporting to Congress.”39 Yet still today, the administration continues to withhold basic information about the program—not only its legal memos, but any and all data about those killed that would allow the public to evaluate its claims about the efficacy and wisdom of its actions. To date, the only available data is from non-governmental sources, and the administration has openly acknowledged only four of the thousands killed and injured.40 As for judicial review, two months after Obama’s speech, administration lawyers continued to argue that the courts should have no role at all in reviewing constitutional claims brought after the killings of al-Aulaqi, Samir Khan, and sixteen-year-old Abdulrahman al-Aulaqi.41
In his May 23 speech, the president foreshadowed a future where the United States would finally shift away from the “war on terror” paradigm of the past eleven years,42 and announced that he would ultimately seek to repeal the AUMF.43 For the present, however, he reasserted and defended the same dangerous premise of a killing program that still continues.44
1 Alice K. Ross, Covert Drone War – The Complete Datasets, Bureau of Investigative Journalism (last visited Sept. 24, 2013), www.thebureauinvestigates.com/2012/09/06/covert-drone-war-the-complete-datasets/ (estimating as many as 4,545 deaths from confirmed drone strikes and other covert operations in Pakistan, Yemen and Somalia); George W. Bush, President, United States, Address to a Joint Session of Congress and the American People (Sept. 20, 2001), available at georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010920-8.html (“Our war on terror begins with al Qaeda, but it does not end there.”); Harold Hongju Koh, “The Obama Administration and International Law,” Annual Meeting of the American Society of International Law, Washington, D.C. (Mar. 25, 2010), www.state.gov/s/l/releases/remarks/139119.htm (“[T]he United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks . . . .”).
2 Watson Institute for International Studies, Over 300,000 Killed by Violence, $4 Trillion Spent and Obligated, Costs of War (last visited Sept. 24, 2013), costsofwar.org/ (finding that as many as 134,000 Iraqi civilians, 19,013 Afghan civilians, and 6,656 US troops have died in the wars in Iraq and Afghanistan).
3 See John O. Brennan, Assistant to the President for Homeland Sec. & Counterterrorism, The Ethics and Efficacy of the President’s Counterterrorism Strategy (Apr. 30, 2012), www.wilsoncenter.org/event/the-efficacy-and-ethics-us-counterterrorism-strategy (discussing targeted killing operations by the United States “beyond hot battlefields like Afghanistan”); Letter from Eric Holder, Attorney General, to the Honorable Patrick J. Leahy, Chairman of the Committee on the Judiciary (May 22, 2013), available at www.justice.gov/slideshow/AG-letter-5-22-13.pdf (acknowledging that four American citizens were killed by US drone strikes “outside of areas of active hostilities” in Yemen and Pakistan in 2011).
4 See, e.g., Brennan, supra note 3. (“Yes, in full accordance with the law, and in order to prevent terrorist attacks on the United States and to save American lives, the United States Government conducts targeted strikes against specific al-Qaida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones.”).
5 See Brief for Defendants-Appellees, New York Times Co. et al., v. Dep’t of Justice et al., (2nd Cir. pending) (Nos. 13-442 & 13-445), 2013 WL 3171502 [hereinafter Defendants Brief].
6 See Complaint, Al-Aulaqi v. Obama, 727 F.Supp.2d 1 (D.D.C. 2010) (No. 10- 1469) 2010 WL 3478666 ¶ 1.
7 Dana Priest, U.S. military teams, intelligence deeply involved in aiding Yemen on strikes, Wash. Post (Jan. 27, 2010), www.washingtonpost.com/wp-dyn/content/article/2010/01/26/AR2010012604239_pf.html (reporting that Anwar Al-Aulaqi had been added to “a shortlist of U.S. citizens” that the Joint Special Operation Command was specifically authorized to kill); Greg Miller, Muslim cleric Aulaqi is 1st U.S. citizen on list of those CIA is allowed to kill, Wash. Post (Apr. 7, 2010), www.washingtonpost.com/wp-dyn/content/article/2010/04/06/AR2010040604121.html?hpid=moreheadlines.
8 Ross, supra note 1 (estimating 51 total drone strikes in Pakistan between 2004–2009 under President Bush, and 52 total drone strikes in Pakistan in 2009 under President Obama). Of 371 total reported U.S. drone strikes in Pakistan from 2004–2013, 320 were under President Obama. Id.
9 A second lawsuit was brought in 2012 after the killings of Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi, which is pending at the time of writing. Al-Aulaqi v. Panetta, No. 12-cv-1192 (D.D.C. 2012) (unreported).
10 See, e.g., Brennan, supra note 3.
11 See Human Rights Council, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, ¶ 44, UN Doc A/HRC/14/24/Add.6, 14th sess. (2010) (“[E]ven if the use of inter-state force is offered as justification for a targeted killing, it does not dispose of the further question of whether the killing of the particular targeted individual or individuals is lawful.”).
12 Reply Memorandum in Support of Plaintiff’s Motion for a Preliminary Injunction and in Opposition to Defendants’ Motion to Dismiss, Al-Aulaqi v. Obama, 727 F.Supp. 1 (D.D.C. 2010) (No. 10-1469) 2010 WL 4974323 (discussing the criteria for armed conflict under Prosecutor v. Tadic, Case No. IT-94-1-T) [hereinafter Plaintiff’s Reply Memorandum]; Declaration of Mary Ellen O’Connell, Al-Aulaqi v. Obama, 727 F.Supp. 1 (D.D.C. 2010) (No. 10-1469), ccrjustice.org/files/Declaration%20of%20Mary%20Ellen%20O%27Connell%2010-08-2010.pdf ¶¶ 11, 13 (discussing the criteria for armed conflict and the territorial limits of armed conflict).
13 See Declaration of Bernard Haykel, Al-Aulaqi v. Obama, 727 F.Supp. 1 (D.D.C. 2010) (No. 10-1469), www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&cad=rja&ved=0CCwQFjAA&url=http%3A%2F%2Fccrjustice.org%2Ffiles%2FDeclaration%2520of%2520Bernard%2520Haykel%252010-08-2010.pdf&ei=PgFCUoKZEuTAigKpgoHoBQ&usg=AFQjCNGnXsFPwMItcmvuAwbUamcPtQ4Dxw&sig2=n_i5qjp5qssCkja-eakzuQ (discussing al-Qaeda in the Arabian Peninsula); see Declaration of Mary Ellen O’Connell, supra note 12, at ¶ 15 (concluding that the United States was not engaged in armed conflict in Yemen during the relevant period).
14 Plaintiff’s Reply Memorandum, supra note 12.
15 See Brennan, supra note 3 (identifying al-Shabaab in Somalia, AQAP in Yemen, al-Qaeda in the Islamic Maghreb (AQIM) in North and West Africa, and Boko Haram in Nigeria as “affiliates” and “adherents” of al-Qaeda that threaten the United States). At a Senate Armed Services Committee hearing on the AUMF in May 2013, the DOD Acting General Counsel acknowledged that the AUMF could also be read to authorize lethal force against “associated forces” in Mali, Libya, and Syria. Oversight: The Law of Armed Conflict, the Use of Military Force, and the 2001 Authorization for the Use of Military Force: Hearing Before the S. Comm. on Armed Services, 113th Cong. 15 (2013) (statement of Robert Taylor) available at armed-services.senate.gov/Transcripts/2013/05%20May/13-43%20-%205-16-13.pdf [hereinafter Oversight: The Law of Armed Conflict]; see id. at 9 (Assistant Secretary of Defense for Special Operations and Low-Intensity Conflict stating that it would be “difficult for the Congress to get involved in trying to track the designation of which are the affiliate forces.”).
16 See Brennan, supra note 3; Oversight: The Law of Armed Conflict, supra note 15.
17 See Brennan, supra note 3 (discussing the diminishing capacity of “al-Qaida core,” but the active threat from its “affiliates” and “adherents”); Media Conference Call, Office of the Director of National Intelligence, Background briefing on the state of Al-Qaida (Apr. 27, 2012) (available at www.dni.gov/index.php/newsroom/speeches-and-interviews/99-speeches-interviews-2012/563-background-briefing-on-the-state-of-al-qaida-media-conference-call 2 (Deputy Director Robert Cardillo discussing “a movement that will be more decentralized” due to the weakening of al-Qaeda, where “regional al-Qaida affiliates [will conduct] the bulk of the terrorist attacks.”).
18 Plaintiff’s Reply Memorandum, supra note 12.
19 See id.
20 See id.
21 Michael Isikoff, Justice Department memo reveals legal case for drone strikes on Americans, NBC News (Feb. 4, 2013), investigations.nbcnews.com/_news/2013/02/04/16843014-justice-department-memo-reveals-legal-case-for-drone-strikes-on-americans?lite.
22 Lawfulness of a Lethal Operation Directed Against a US Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force, at 7-8 (Nov. 8, 2011); see Appendix A. The white paper also identifies “infeasibility” of capture as another loosely defined criterion. Id.
23 Id. at 1 (“The paper does not attempt to determine the minimum requirements necessary to render such an operation lawful; nor does it assess what might be required to render a lethal operation against a U.S. citizen lawful in other circumstances, including an operation against . . . a U.S. citizen who is not a senior operational leader of such forces.”).
24 See Letter from Eric Holder, supra note 3 (openly acknowledging the deaths of four U.S. citizens in targeted killing operations “outside of areas of hostilities”).
25 See Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 3, Aug. 12, 1949, 75 U.N.T.S. 31; see Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, art. 3, Aug. 12, 1949, 75 U.N.T.S. 85; see Convention Relative to the Treatment of Prisoners of War, art. 3, Aug. 12, 1949, 75 U.N.T.S. 135; see Convention Relative to the Protection of Civilian Persons in Time of War, art. 3, Aug. 12, 1949, 75 U.N.T.S. 287; see Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, art. 13, June 8, 1977, 1125 U.N.T.S. 3; see Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, ICRC 27 (2009), www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf (“In non-international armed conflict, organized armed groups . . . consist only of individuals whose continuous function it is to take a direct part in hostilities.”).
26 See Brennan, supra note 3 (“[I]ndividuals who are part of al-Qaida or its associated forces are legitimate military targets. We have the authority to target them with lethal force just as we target [sic] enemy leaders in past conflicts, such as Germans and Japanese commanders during World War II.”).
27 See Gabor Rona, Thoughts on Brennan’s Speech, Opinio Juris, May 2, 2012, opiniojuris.org/2012/05/02/thoughts-on-brennans-speech/ (objecting to Brennan’s claim as a “sweeping and incorrect claim of who is targetable under international law . . . .”).
28 Plaintiff’s Reply Memorandum, supra note 12.
29 See Defendants Brief, supra note 5.
30 Opposition to Plaintiff’s Motion for Preliminary Injunction and Memorandum in Support of Defendants’ Motion to Dismiss, Al-Aulaqi v. Obama, 727 F.Supp. 1 (D.D.C. 2010) (No. 10-1469) 2010 WL 3863135 (arguing that the plaintiff’s constitutional claims should be dismissed under the political question doctrine, in part because the court does not have constitutional authority to review the claims).
31 See Jeh Johnson, General Counsel, Department of Defense, National Security Law, Lawyers, and Lawyering in the Obama Administration (Feb. 22, 2012), available at www.cfr.org/defense-and-security/jeh-johnsons-speech-national-security-law-lawyers-lawyering-obama-administration/p27448 (“[C]ontrary to the view of some, targeting decisions are not appropriate for submission to a court.”); Eric Holder, Attorney General, Attorney General Eric Holder Speaks at Northwestern University School of Law (Mar. 5, 2012), available at www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1203051.html (asserting that “‘[d]ue process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security.”).
32 Hamdi v. Rumsfeld, 296 F.3d 278, 283 (4th Cir. 2002), vacated, 542 U.S. 507 (2004). The Supreme Court went even further, affirming that the Judiciary retained a role in reviewing Hamdi’s detention, but holding that such review should be fuller than the limited review prescribed by the Fourth Circuit in order to be meaningful. Hamdi v. Rumsfeld, 542 U.S. 507, 535 (2004).
33 Al-Aulaqi v. Obama, 727 F.Supp. 2d 1, 35, 52 (D.D.C. 2010) (granting the government’s motion to dismiss on the basis of standing and the political question doctrine).
34 The question of judicial review is at issue in the pending case of Al-Aulaqi v. Panetta, which challenges the constitutionality of the killings of Anwar Al-Aulaqi, Samir Khan and Abdulrahman Al-Aulaqi. See Al-Aulaqi v. Panetta, No. 12-cv-1192 (D.D.C. 2012) (unreported).
35 Barack Obama, President, United States, Remarks by the President at the National Defense University (May 23, 2013), available at www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-national-defense-university.
36 Office of the Press Secretary, U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities (May 23, 2013); see Appendix A.
37 See Greg Miller, Obama administration authorized recent drone strikes in Yemen, Wash. Post (Aug. 6, 2013) articles.washingtonpost.com/2013-08-06/world/41107162_1_u-s-embassy-u-s-drone-activity-yemeni-government-officials (reporting that the “new rules . . . allow for strikes to resume in response to an elevated threat.”); Mark Mazetti and Mark Landler, Despite Administration Promises, Few Signs of Change in Drone Wars, N.Y. Times (Aug. 2, 2013), www.nytimes.com/2013/08/03/us/politics/drone-war-rages-on-even-as-administration-talks-about-ending-it.html?pagewanted=all (reporting that “there is little public evidence of change” in the administration’s strategy) .
38 See Letter from Eric Holder, supra note 3 (openly acknowledging that American citizens Anwar Al-Aulaqi, Samir Khan, Abdulrahman Al-Aulaqi, and Jude Kenan Mohammed were killed by the United States “outside of areas of active hostilities”).
39 Obama, supra note 35.
40 See Letter from Eric Holder, supra note 3.
41 See Transcript of Oral Argument, Al-Aulaqi v. Panetta, (No. 12-1192) (D.D.C. 2013) (unreported) (D.D.C. 2013), available at www.ccrjustice.org/files/Transcript%20of%20July%2019,%202013,%20Oral%20Argument%20on%20Defendants%E2%80%99%20Motion%20to%20Dismiss.pdf (argument on the defendants’ motion to dismiss Fourth and Fifth Amendment claims on behalf of Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi for their deaths by U.S. drone strikes on September 30, 2013, and October 14, 2013).
42 Obama, supra note 35 (stating that “this war [against al Qaeda], like all wars, must end,” and that the current threat of terrorism “closely resembles the types of attacks we faced before 9/11.”).
43 Id. (stating that he would “engag[e] Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.”).
44 Id. (stating that we are at war with al-Qaeda and its affiliates).