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The OLC’s Drone Memo and International Law’s Ascendance

The long-awaited release of the redacted July 16, 2010 OLC memo is anticlimactic in important respects. Much is still unknown to the point that it is difficult, if not impossible, to evaluate significant parts of the legal reasoning. The foundation of the OLC’s constitutional due process analysis may be located in an earlier memo. Facts about Anwar al-Aulaqi’s role and activities in AQAP, and how the administration ascertained such evidence, are redacted—making it difficult to assess international legal questions about targeting. Analysis of the CIA’s domestic legal authorities is redacted—making it difficult to evaluate the so-called “public authority justification” as applied to that agency. There is still a lot we don’t know.

That is one of the reasons why I don’t fully understand some of the more extreme statements about the memo. That includes the New York Times Editorial Board’s statement that “the memo turns out to be a slapdash pastiche of legal theories — some based on obscure interpretations of British and Israeli law — that was clearly tailored to the desired result.” The Center for Constitutional Rights statement, in my view, also crosses the line calling the reasoning “gross distortions of law.”

I imagine some of the more extreme criticisms boil down to the irreducible disagreement between the view that the US is in an armed conflict (a state of war) with Al Qaeda and the view that it isn’t. If one accepts, however, the former viewpoint, the memo has greater value—much greater—than these criticisms suggest.

I have raised my own concerns about various administration positions on targeted killings (examples: here, here, here), and I have raised concerns about criticisms of the administration as well (examples: hereherehere). In reviewing this particular memo, I want to use this post to highlight some of the memo’s “hidden value,” including how it places principled legal constraints on warfighting and covert action while taking into account legitimate national security concerns under the Constitution.

And here’s the bottom line: the memo stands for a strong proposition that domestic authorization and federal criminal statutes require compliance with international law.

That’s the forest. Now let’s look at the trees…

If you listen only to the loudest critics, you might miss the fact that the memo supports the following propositions.

1. International law in domestic law

International law is a determinant of domestic legal authority – and, not only that, but for both agencies involved (see e.g., the Charming Betsy analysis). Moreover, CIA officers must, according to the memo, comply with international law to avoid criminal liability (the “public authority justification”). That includes not just treaty law but customary international law (for public international law wonks: the memo quotes the Martens clause!). In this specific circumstance, the law of armed conflict was relevant. In another, it might be international human rights law that determines whether covert action is legally authorized and criminally liable. (And see #4 below for how the memo suggests that human rights law also applies to al-Aulaqi’s case.)

2. Limits on the global battlefield

The memo injects what might become understood as a limiting principle for the geographic scope of the conflict with Al Qaeda. Admittedly, the memo does not define the outer boundary, but it does suggest that the authorization to use lethal force may apply only in areas with a significant presence and staging ground for enemy forces and from where attacks against the United States are launched. As part of the definition of the geographic boundaries of the non-international armed conflict, the memo states:

“… according to the facts related to us, AQAP has a significant and organized presence, and from which AQAP is conducting terrorist training in an organized manner and has executed and is planning to execute attacks against the United States. Finally, the targeted individual himself, on behalf of that force, is continuously planning attacks from that Yemeni base of operations against the United States …. Taken together, these facts support the conclusion that the DoD operation would be part of the non-international armed conflict the Court recognized in Hamdan.”

Note: This analysis also involves one of the most surprising parts of the memo. The White Paper had suggested that the constitutional analysis rested on the fact that al-Aulaqi was outside of an area of active hostilities. On that reading, al-Aulaqi received greater constitutional protections because he was located away from a hot battlefield. On the contrary, the OLC memo (at least the redacted version) never invokes the concept of areas of active hostilities (which may have appeared in the White Paper as an amalgamation of standards elsewhere). The OLC memo instead takes the position that lethal force is appropriate because al-Aulaqi was located at a terrorist base of active operations against the United States. That is, the lethal force might not have been appropriate if he were located outside of that zone of hostilities (at least that would have to be decided in a separate case, because the memo does not reach the issue). The important point is that the OLC memo potentially flips that reading of the White Paper on its head.

3. Law-of-armed conflict restrictions on self-defense

Some commentators have suggested that under international law the United States can rely on pure self-defense as an independent legal justification for lethal force against Al Qaeda and other terrorist organizations free from the restrictions of the Geneva Conventions and Hague rules that regulate belligerents in armed conflict (“jus in bello”). The memo helps put the brakes on that potentially radical proposition. Citing an Advisory Opinion of the International Court of Justice, the memo states the following proposition:

“Fundamental law-of-war norms are applicable even where military force might be employed outside the context of an armed conflict, such as when using powerful weapons in an act of national self-defense” (FN. 36)

4. International human rights law

Some commentators suggest the memo gave short shrift to international human rights law. I read it differently. I believe none of the administration officials’ speeches—even including Harold Koh’s—mention international human rights law, let alone state that it applies to targeted killings. Indeed, it would be a most difficult task to get such a proposition through the interagency process, no matter what one’s personal position. The OLC memo, however, arguably finesses this. In a footnote, the memo suggests that international human rights law may apply—and that if it did, it would have to be satisfied in order to avoid application of the domestic criminal law here. It also quotes from the US submission to the International Court of Justice in the Nuclear Weapons Advisory Opinion. For those of us who follow those international legal issues closely, that citation is something of a rebuke to those who strongly oppose the application of human rights law in armed conflict. The memo subtly demonstrates that the US official position, in the ICJ proceedings, accepted the application of the International Covenant on Civil and Political Rights in armed conflict—with the caveat that the US took the position that the Covenant’s definition of “arbitrary” deprivation of life would be determined by reference to the law of armed conflict. (The ICJ agreed with the US position, and the caveat too.) That is less than I would have liked, but it is still momentous.

5. Miscellaneous

Finally, the memo makes several other similar moves:

The memo adopts a position that undermines the prosecution of Omar Khadr as an unprivileged belligerent (FN. 44).  That is, the memo flatly rejects the view that unprivileged belligerency is a violation of the laws of war.

The memo implicitly embraces the test of a non-international armed conflict that includes the organizational capacity of the opposing party (p. 27).

The memo affirmatively cites the International Committee of the Red Cross standard for membership in an armed group (FN. 28), and suggests that the memo’s approach is consistent with the ICRC’s framework.

The memo states flatly that CIA members do not have combatant immunity (p. 44).

*  *  *

The NYT said the memo was “clearly tailored to the desired result.” Were that true, it would be a result quite contrary to the one the Times presupposes.

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About the Author

is co-editor-in-chief of Just Security. Ryan is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. Follow him on Twitter (@rgoodlaw).