In a May 2013 hearing held by the Senate Armed Services Committee on the status of the Authorization for Use of Military Force (AUMF), Senator Carl Levin asked the four Defense Department officials there testifying to send him a list of the al Qaeda-affiliated organizations that may be targeted under the AUMF’s authorization. The DOD has apparently since honored the request, but the Senator’s office is not allowed to publically release the list because it would cause “serious damage to national security” and potentially “build credibility” for those listed groups, according to a Department spokesperson. This exchange raises two serious issues. First, as Harvard Law professor Jack Goldsmith asks on The Lawfare Blog, “Why does the Armed Services Committee—which supposedly receives regular briefings from DOD about the shadow war—not know the answer to that question!?” Second, we also do not know what criteria the Administration uses to determine affiliate status and therefore the right to engage in extrajudicial killing against a particular individual or group. Even the DOD officials acknowledged affiliate groups have “murky membership…murky alliances and shifting alliances,” making it difficult to designate statuses. So, who is a lawful target of drone strikes as an “associate” of al Qaeda? The short answer seems to be: no one really knows.
Individual targets: Determined by conduct?
Officially, Administration officials consistently argue that the U.S. designates lawful targets based on their violent conduct that is aimed at U.S. interests. During the May 2013 hearing on the AUMF, an Assistant Secretary of Defense, Michael Sheehan, testified, “We make that determination based on their co-belligerent status with al Qaeda and make our targeting decisions based on that criteria rather than on the shifting nature of different groups and their affiliations.” (italics added) In theory, this approach mirrors international standards for lawful targeting. In a non-international armed conflict, an individual may be legally killed if he directly participates in hostilities or serves a “continuous combat function.” (For more on this distinction, see our piece on Combatants and Actual Combat) That criteria typically excludes financiers, propagandists, and others in similarly secondary roles, even if they actively support an armed group. In practice, however, the United States has not necessarily followed those standards for targeted killings. In 2009, the DOD placed fifty Afghan drug lords on its “Joint Integrated Prioritized Target List,” making them kill/capture targets, because they were suspected of financing the Taliban. In 2011, U.S. citizen Anwar Awlaki was killed in Yemen by a drone strike. After his death, Administration officials including President Obama began referring to him as the “Chief of External Operations” for al Qaeda in the Arabian Peninsula (AQAP), but until then, he primarily was known as a charismatic radical cleric who was especially successful at attracting Western followers because he spoke fluent English. Several individuals and organizations have questioned his status as a co-belligerent, including the ACLU and the Center for Constitutional Rights who filed suit challenging the legality of that operation under both the U.S. Constitution and international law. Determination of associate status seems to be another area where the Administration claims it follows one standard but often practices another.
In order to determine an individual’s status as a co-belligerent, it should be safe to assume that at the very least the CIA or the military knows the identity of the person it is targeting. In some cases, they do know exactly who they plan to kill with a drone; those operations are known as “personality strikes,” which typically target known terrorist leaders. However, the drone program under both Presidents Bush and Obama has also included “signature strikes,” where a target’s identity is not known but his patterns of behavior suggest he is a militant. The existence of signature strikes as a tactic seems to upend any credibility that Administration officials have in arguing that they determine lawful targets based on an individual’s status as an associate of al Qaeda or the Taliban. How is that possible if they don’t know who that person even is? During an August 2013 visit to Pakistan, Secretary of State John Kerry suggested that signature strikes there may actually end in the near future; however, a State Department spokeswoman was quick to note he was merely reiterating President Obama’s May 2013 remarks on the coming U.S. withdrawal from the AfPak region and was not offering a specific timetable. (for more on signature strikes, see our analysis here [link])
Armed Groups: Determined by affiliation?
A supplemental criterion for determining whether an individual may be lawfully targeted is his membership in an organization that has been classified to have “affiliate” status to al Qaeda—which is its own “murky” task, to use Assistant Secretary Sheehan’s word. The formal list of such organizations, which apparently exists only because of Senator Levin’s request, remains secret because the Department of Defense worries it might “inflate these organizations” and help “strengthen their ranks” to know that they have been included on such a list. Domestic authorities, including the AUMF, have been interpreted to permit the use of force against al Qaeda, the Taliban and associated forces. According to Jeh Johnson, former DOD General Counsel, “An ‘associated force,’ as we interpret the phrase, has two characteristics to it: (1) an organized, armed group that has entered the fight alongside al Qaeda, and (2) is a co-belligerent with al Qaeda in hostilities against the United States or its coalition partners.” Those standards are compatible with the requirements of the laws of armed conflict, which require an identifiable organized armed group that is engaged in collective hostilities against the opposing party in the conflict. Yet again, however, there may be a different standard in practice.
Most U.S. officials, scholars, and other observers readily acknowledge that al Qaeda in its current form is very different from the organization that existed in the 1990s and early 2000s, splintered in large part by U.S. counterterrorism operations. The core in Afghanistan and Pakistan is nearly decimated, and the organization has decentralized, operating in a “franchise” structure, with several satellite groups inspired by core al Qaeda’s ideology at least as much—and most likely more so—as they are operationally connected to it. Another characteristic of these various al Qaeda affiliates (e.g. AQAP, al Qaeda in the Islamic Maghreb, al Qaeda in Iraq, al Shabaab) is that they are more concerned with their immediate environments, launching attacks on local targets, than they are with striking the U.S. homeland. In recent piece on CNN.com titled “From Benghazi to Boston: The state of the jihad,” Peter Bergen assesses the current status of these franchise groups and concludes that, “al Qaeda affiliates and allied groups aren’t a major threat to the West.” Both domestic and international legal authorities sanctioned the use of force in response to the September 11 attacks and the entities that committed them, yet none of those organizations even existed in 2001. If these groups are more concerned with local agendas, can we legally target their members, even if they meet every standard of a combatant, just not necessarily against the United States? Similarly, if the U.S. recognizes various affiliates as distinct entities, some of which poses a more serious direct threat (AQAP) to U.S. interests than others (AQIM), can it no longer justify the conflict against al Qaeda as a single non-international armed conflict? Bear in mind, the groups discussed above can all safely be assumed to be included on the DOD’s list; what about those organizations that aren’t as famous—what standards are the DOD using to determine their status as al Qaeda affiliates?