nationalsecuritylaw Center for Constitutional Rights et al v. Obama et al. (N.D. Cal. Jan. 31, 2011) (dismissing suit)

February 3, 2011

* Center for Constitutional Rights et al v. Obama et al. (N.D. Cal. Jan. 31, 2011) (granting summary judgment to defendants)

A lawsuit initiated by CCR against the Bush Administration back in 2006 was dismissed on Monday by Judge Vaughn Walker in a 22-page opinion posted here. The plaintiffs argued that the warrantless/terrorist surveillance program undertaken by the Bush Administration may have resulted in illegal monitoring of the phones of CCR’s attorneys, and that this resulted in various constitutional and statutory violations. Judge Walker’s opinion sided with the government in concluding that the plaintiffs lack standing to assert their claims.

nationalsecuritylaw “A Ticking Time Bomb: Counterterrorism Lessons from the U.S. Government’s Failure to Prevent the Fort Hood Attack” Senate Homeland Security and Governmental Affairs Committee (Feb. 3, 2011)

February 3, 2011

* "A Ticking Time Bomb: Counterterrorism Lessons from the U.S. Government’s Failure to Prevent the Fort Hood Attack" Senate Homeland Security and Governmental Affairs Committee (Feb. 3, 2011)

The Senate HSGA Committee has completed its investigation of the government’s handling of information relating to Major Nidal Hasan prior to the Fort Hood attack on November 5, 2009. The report was released today, and is available here. The report proceeds in three parts. Part I is background relating to the aims of the investigation and to the homegrown radicalization issue. Part II is a review of what the government knew prior to the attack and how that information was handled. Part III provides recommendations concerning DOD, FBI, and interagency practices. The key findings and recommendations are posted in an Annex at the end of the document.

nationalsecuritylaw Chesney on al-Awlaki, AQAP, targeted killing, and international law

February 3, 2011

* Forthcoming Scholarship

Who May Be Killed? Anwar Al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force

Robert Chesney (University of Texas)
Yearbook of International Humanitarian Law (forthcoming 2011)

Anwar al-Awlaki is a dual Yemeni-American citizen who has emerged in recent years as a leading English-language proponent of violent jihad, including explicit calls for the indiscriminate murder of Americans. According to the U.S. government, moreover, he also has taken on an operational leadership role with the organization al Qaeda in the Arabian Peninsula (AQAP), recruiting and directing individuals to participate in specific acts of violence. Does international law permit the U.S. government to kill al-Awlaki in these circumstances?

Part I opens with a discussion of what we know about AQAP, about al-Awlaki himself, and about the U.S. government’s purported decision to place him on a list of individuals who may be targeted with lethal force in certain circumstances. Part II then explores objections to killing al-Awlaki founded in the U.N. Charter’s restraints on the use of force in international affairs. I conclude that a substantial case can be made, at least for now, both that Yemen has consented to the use of such force on its territory and that in any event the conditions associated with the right of self-defense enshrined in Article 51 can be satisfied. Part III then turns to objections rooted in IHL and IHRL, beginning with the question whether an attack on al-Awlaki would fall within IHL’s field of application. I conclude that the threshold of armed conflict has been crossed in two relevant respects. First, it has been crossed in Yemen itself as between AQAP on one hand and the U.S. and Yemeni governments on the other. Second, it has been crossed as well with respect to the United States and the larger al Qaeda network—and not only within the geopolitical borders of Afghanistan. Building from these premises, I then proceed to consider whether al-Awlaki could be targeted consistent with IHL’s principle of distinction. I conclude that he can be if he is in fact an operational leader within AQAP, as this role would render him a functional combatant in an organized armed group.

Should the analysis instead turn on IHRL, however, the central issue becomes the requirement of necessity inherent in IHRL’s protection for the right-to-life, and in particular the notion of temporal necessity. I conclude that this requirement is not an obstacle to attacking al-Awlaki insofar as (i) there is substantial evidence that he is planning terrorist attacks, (ii) there is no plausible opportunity to incapacitate him with non-lethal means, and (iii) there is not good reason to believe that a plausible non-lethal opportunity to incapacitate him will arise before harm to others occurs. A second question then arises, however. Must al-Awlaki be linked to a specific plot to carry out a particular attack, or is it enough that the evidence establishes that he can and will attempt or otherwise be involved in attacks in the future without specificity as to what the particulars of those attacks might be? The former approach has the virtue of clarity, yet could rarely be satisfied given the clandestine nature of terrorism. The latter approach necessarily runs a greater risk of abuse and thus perhaps justifies an especially high evidentiary threshold, but in any event it is a more realistic and more appropriate approach (particularly from the point of view of the potential victims of future terrorist attacks).

Comments and criticisms are welcome.

nationalsecuritylaw United States v. Abu Ali (4th Cir. Feb. 1, 2011) (affirmining life sentence)

February 3, 2011

* United States v. Abu Ali (4th Cir. Feb. 1, 2011)

As you may recall, Abu Ali originally was convicted on charges stemming from involvement with an al Qaeda cell in Saudi Arabia (including a plot to assassinate the President) and lost on his appeal of that conviction. The government had cross-appealed his original thirty-year sentence and prevailed, with the court on remand imposing a life sentence. In a per curiam, unpublished opinion released on Tuesday, a Fourth Circuit panel (Traxler, Wilkinson, and Motz) has now affirmed that life sentence.