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The President’s May 23d NDU Speech in Action: The Broader Significance of the al-Liby and Ikrima Operations [UPDATED Oct. 15]

If reported accounts thus far are accurate, the al-Liby and Ikrima capture operations last weekend are important illustrations of several things that the President and his top advisors have been stressing about the future of U.S. counterterrorism policies and practices outside areas of active hostilities–”[b]eyond the Afghan [war] theater,” as the President put it in his May 23 speech at the National Defense University.

Of course, there is no way of knowing for certain whether and to what extent the operations this past weekend were representative of what we can expect going forward.  Undoubtedly there will be a variety of different sorts of operations over time, each with its own idiosyncratic characteristics.  Even so, these two operations appear to reflect so many of the themes set forth in the President’s May 23d speech (and the accompanying Administration statements) that it’s worth stepping back to recall just what those themes were, and what we might expect the armed conflict to look like in the years to come.

In his speech, the President described a future campaign against al Qaeda and associated forces that is far more constrained than the sort of full-scale war to which we’ve become accustomed over the past twelve years.  The most significant step toward this decisive shift, of course, will be our exit from Afghanistan.  And that step will have significant implications not only for the geography, but also for the nature, of the conflict.  As a senior government official explained the morning of the President’s May speech in response to a question about “signature strikes,” the Afghan theater presents a “different context” than what we can expect to confront elsewhere.   Within that theater, “we take action against high-value al Qaeda targets, but we also take action against forces that are massing to support attacks on our troops and on coalition forces in Afghanistan.”  “[B]y the end of 2014,” however, “as we wind down the war in Afghanistan, we will not have the same need for force protection and those types of strikes that are designed to protect our forces in Afghanistan.”

In light of the coming withdrawal from Afghanistan, the President’s speech articulated a new framework for the quite different context of hostilities outside the Afghan theater, which will comprise the bulk of U.S. operations in the conflict with al Qaeda and its associated forces after 2014.  The Tripoli and Bawaare operations last weekend may offer us an important window into that future framework, since they appear to reflect several of the central principles and policies the President and his advisers have articulated.

[UPDATE: Jack Goldsmith, responding to this post, correctly notes that we were not entirely precise in describing the May 23d framework as "new"--“the President and his advisors," Jack writes, "have been expressing all or almost all of these goals, in one way or another, since 2009.”  We did not intend to suggest otherwise.  Even so, a combination of the recent shift of efforts away from the Afghan theater (with an eye to ending operations there after 2014), and the codification of standards in the Presidential Policy Guidance (PPG), means that these principles will take on even greater salience, and be applied with more regularity, in the years to come.  This is how two senior administration officials explained it in the press briefing just before the President’s speech in May, in response to a question about whether and to what extent these standards were new:

This has been an evolving process. . . .  [W]e’ve been continually sort of refining and strengthening the process by which we deal with this. . . .  [Y]ou’ll see . . . a lot of continuity in the way[s] in which we approach these things that are basically being codified in the guidance that’s been issued. . . .  The President believed that given the grave issues at stake here it was necessary to codify these guidelines so they were clear to all agencies of our government, and to the American people and the world as well. . . .   So, in some respects, this does indicate the codification of the highest standards that we have pursued in the course of the last several years.  And that is meant as a baseline to guide us going forward.

Jack also helpfully identifies an additional characteristic of the President’s preferred “paradigm” that we did not emphasize but that also warrants mention:  He points out that capture operations such as those last weekend in Libya and Somalia are unlikely to become the exclusive means of addressing terrorist threats not only because the use of lethal force will be necessary in some cases (which we discuss above), but more importantly because the U.S. “will likely continue to prefer working to assist foreign governments to deal with the terrorist threats within their borders themselves.”

This is absolutely right.  In his May 23d speech, the President placed a great deal of emphasis on building partnerships with allies to enable them to be the principal actors in interdicting terrorist threats—something that has, after all, been the primary strategy of the U.S. and European nations for decades in their counterterrorism efforts.  Moreover, the President specifically said that the U.S. will use lethal force outside the Afghan theater only “when there are no other governments capable of effectively addressing the threat”; and the White House Fact Sheet similarly provides that under the PPG, lethal force may not be used absent “[a]n assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons.”]

Strong Preference for Capture

In his May 23d speech, the President announced that “the policy of the United States is not to use lethal force when it is feasible to capture a terrorist suspect, because capturing a terrorist offers the best opportunity to gather meaningful intelligence and to mitigate and disrupt terrorist plots.”  The same point was stressed eighteen months earlier by then-Counterterrorism-Adviser John Brennan, in a speech at the Harvard Law School.  Brennan was at pains to rebut a commonly voiced assumption that because the U.S. is no longer bringing detainees to Guantanamo (and/or because we have abandoned the use of abusive interrogation techniques), it must be that the executive has resorted to a policy of using lethal force against persons who, a few years ago, it would have captured instead:

[S]ome have suggested that we do not have a detention policy; that we prefer to kill suspected terrorists, rather than capture them.  This is absurd, and I want to take this opportunity to set the record straight. . . .  I want to be very clear—whenever it is possible to capture a suspected terrorist, it is the unqualified preference of the Administration to take custody of that individual so we can obtain information that is vital to the safety and security of the American people.  This is how our soldiers and counterterrorism professionals have been trained.  It is reflected in our rules of engagement.  And it is the clear and unambiguous policy of this Administration.

Of course, there will be contexts–more so in some places than others–where capture is infeasible, for various reasons of logistics, risk to civilians, technology, diplomatic imperatives, etc.  The President described such contexts in his May 23d speech:

[D]espite our strong preference for the detention and prosecution of terrorists, sometimes this approach is foreclosed.  Al Qaeda and its affiliates try to gain foothold in some of the most distant and unforgiving places on Earth.  They take refuge in remote tribal regions.  They hide in caves and walled compounds.  They train in empty deserts and rugged mountains.  In some of these places — such as parts of Somalia and Yemen — the state only has the most tenuous reach into the territory.  In other cases, the state lacks the capacity or will to take action.  And it’s also not possible for America to simply deploy a team of Special Forces to capture every terrorist.  Even when such an approach may be possible, there are places where it would pose profound risks to our troops and local civilians — where a terrorist compound cannot be breached without triggering a firefight with surrounding tribal communities, for example, that pose no threat to us; times when putting U.S. boots on the ground may trigger a major international crisis.

Nevertheless, in that same speech the President emphasized the Administration’s unequivocal preference for capture.  Accordingly, the Presidential Policy Guidance (PPG) he issued on May 22d is said to specifically provide that an “assessment that capture is not feasible at the time of the operation” must be made “before lethal action may be taken” outside areas of active hostilities.  (And even then, lethal force may not be used absent further assessments “that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons” and that “no other reasonable alternatives exist to effectively address the threat to U.S. persons.”)

Last weekend’s operations in Libya and Somalia, both of which are reported to have been designed as capture operations, exemplify such a policy.  Indeed, Karen deYoung in the Post reports current officials as saying that the Baraawe operation, in particular, was designed within the “restrictive” guidelines of the May PPG.

Extraordinary Efforts to Avoid Civilian Casualties

“[B]efore any strike is taken,” said the President at the NDU, “there must be near-certainty that no civilians will be killed or injured — the highest standard we can set.”  According to the White House Fact Sheet issued that same day, the Presidential Policy Guidance includes the same requirement–a standard that is far more protective of civilians than even the “proportionality” requirement imposed by the law of armed conflict.  The Fact Sheet adds, moreover, that “it is not the case that all military-aged males in the vicinity of a target are deemed to be combatant,” thereby correcting an oft-reported but mistaken contrary account.

According to recent reports, the Baraawe raid–which was not even a “strike” but instead a capture operation–was called off precisely because it appeared that it might result in civilian casualties.  The armed forces acted “with tremendous care for not inflicting civilian casualties,” according to current Counterterrorism Adviser Lisa Monaco.  The Libya raid, likewise, does not appear to have resulted in any civilian casualties.

Preference for Article III Trials

Both operations last weekend were designed, at least in substantial part, to facilitate law enforcement objectives.  Abu Anas al-Liby has been indicted, and presumably will be tried, in the Southern District of New York.  Karen deYoung likewise reports that “administration officials expressed confidence that they could have brought charges against [Ikrima] in this country if he had been captured.”

The capture operations thus underscore the President’s commitment that “[l]ethal force will not be proposed or pursued as punishment or as a substitute for prosecuting a terrorist suspect in a civilian court or a military commission.”  They also reflect what John Brennan called the “strong preference of this Administration . . . to accomplish [incapacitation of persons who are threats to the American people] through prosecution, either in an Article III court or a reformed military commission,” and a decided preference for Article III trials, since “[o]ur federal courts are time-tested, have unquestioned legitimacy, and, at least for the foreseeable future, are capable of producing a more predictable and sustainable result than military commissions.”  (Current Counterterrorism Adviser Monaco reiterated this week that in such capture operations “our goal is to get intelligence, and then ultimately to prosecute the individual.”)

This is actually related to the preference for capture, and reflects legal developments since 2001:  Under current law, as amended in the wake of the September 11 attacks, the same conduct that would justify a capture or the use of lethal force against an al Qaeda leader outside areas of active hostilities would almost certainly also be sufficient to render that individual culpable for federal law offenses, including material support to a terrorist organization.  Accordingly, an Article III trial will more often be a possible–indeed, a preferred–objective of many such capture operations, at least in those cases where there is sufficient admissible evidence from intelligence that can be declassified and/or from other sources.

Preference for Military Operations

In a press briefing the morning of the President’s May 23d speech, a senior Administration official disclosed that the Presidential Policy Guidance expresses a “preference that the United States military have the lead for the use of force not just in war zones like Afghanistan, but beyond Afghanistan, where we are fighting against al Qaeda and its associated forces.”  Such a preference might be valuable, among other reasons, because within the federal government it is our armed forces who have the most robust training in, and longstanding experience in the observance of, humanitarian law.

If the news reports are accurate, the armed forces did, in fact, take the lead in the Tripoli and Baraawe operations last weekend.

A Continuing Focus on al Qaeda, and Reliance Upon the AUMF

According to the Post, “U.S. officials said both operations were lawful under war powers that Congress granted the executive branch after the Sept. 11, 2001, terrorism attacks”–i.e., pursuant to the September 2001 AUMF.  As Marty explained in his previous post, the executive has concluded that al-Liby is a member of al Qaeda.  And as Ryan Goodman elaborated, it is very possible the Administration has concluded that Ikrima is, too.  If so, then the Baraawe raid would be consistent with the President’s earlier report to Congress that “[i]n a limited number of cases, the U.S. military has taken direct action in Somalia against members of al-Qa’ida, including those who are also members of al-Shabaab, who are engaged in efforts to carry out terrorist attacks against the United States and our interests.”

These operations thus reflect the likelihood that the continuing focus of the U.S.’s use of force, at least outside the Afghan theater, is on al Qaeda itself–along with AQAP in Yemen, an organization that the government has determined “is an organized armed group that is either part of al-Qaeda, or is an associated force, or co-belligerent, of al-Qaeda.”

To be sure, the President would undoubtedly assert authority, derived from statutes other than the AUMF, to capture and bring to trial non-AUMF-covered individuals, as well, when they are alleged to have violated criminal laws.  But from all that appears, the President has not asserted any constitutional authority to use long-term military detention or lethal force as a means of self-defense against any group that has not previously attempted to attack the United States or U.S. persons (an assertion that could raise significant constitutional questions).

Focus on Interdicting Future Threats to U.S. Persons

The President announced in May that, outside areas of active hostilities, “the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons. . . .  [I]f a terrorist does not pose such a threat, the United States will not use lethal force.”

Such lethal force will not be used, in other words, in order to retaliate for past attacks (which the law of war forbids), nor even to prevent future attacks on non-U.S. persons.

It’s not clear that either of the Saturday operations was subject to this demanding standard–not, anyway, if they were designed as capture operations, as appears to be the case.  Although anonymous U.S. officials have stated that both al-Liby and Ikrima posed threats to the U.S., it is not clear whether there was a determination that such threats were “continuing” and “imminent.”  And perhaps that–along with the assessment that capture was feasible, and the desire to secure valuable intelligence–explains in part why these were designed as capture operations in the first instance.

It is striking, nevertheless, that both of these operations appear to have been designed to prevent future threats to U.S. persons.  Many of the early reports about the Somalia operation assumed that it was a reaction to the al-Shaabab attack last month on the Westgate shopping mall in Nairobi, or undertaken because of Ikrima’s alleged close association with the al-Qaeda planners of the 1998 bombing of the U.S. embassies in Kenya and Tanzania.  According to Karen deYoung’s story, however, “administration officials, speaking about intelligence matters on the condition of anonymity, said neither of those events was the justification for the attempted raid.”  Of course, such past attacks can be evidence of an individual’s or group’s intents and capabilities respecting future strikes.  But in this case, the raid “was not conducted based on the Westgate Mall attack,” according to Lisa Monaco.

Compliance with International Law, Including Sovereignty Norms

In his May speech, the President specified that “[c]apture operations,” in particular, are conducted “only against suspects who may lawfully be captured or otherwise taken into custody by the United States and only when the operation can be conducted in accordance with all applicable law and consistent with our obligations to other sovereign states.”  The White House Fact Sheet stated more categorically that “whenever the United States uses force in foreign territories, international legal principles, including respect for sovereignty and the law of armed conflict, impose important constraints on the ability of the United States to act unilaterally—and on the way in which the United States can use force. The United States respects national sovereignty and international law.”

As Marty noted in a previous post, a capture of an individual in another nation, for the purpose of bringing that person to trial on criminal charges, can raise a serious issue under customary international law if it is done without the consent of the host nation.  As a comment to Section 432(2) of the Restatement (Third) of the Foreign Relations Law of the United States explains, “[i]t is universally recognized, as a corollary of state sovereignty, that officials in one state may not exercise their functions in the territory of another state without the latter’s consent.”  Therefore the prosecuting state ordinarily must resort to asking the host state to extradite the individual, or to otherwise cooperate in bringing him before the criminal tribunal.  This does not mean that an abduction by the prosecuting state invariably violates international law:  As reflected in the President’s National Strategy for Counterterrorism (see page 6), it is the position of the United States that “[w]hen other countries are unwilling or unable to take action against terrorists within their borders who threaten the United States, they should be taken into U.S. custody and tried in U.S. civilian courts or by military commissions.”

Neither the ordinary sovereignty restriction, however, nor the unable/unwilling test, comes into play if the host nation consents to the abduction.  The Somali government apparently was informed in advance of the Ikrima operation and did not object.  As for the al-Liby operation, although Libya’s interim government is now demanding an explanation from the U.S. for what it is calling a “kidnapping,” it appears that “after months of lobbying by American officials, the Libyans consented to the United States operations,” at least “as long as they could protest in public.”  (Lisa Monaco also stated this week that “we always consult with nations with whom we have strategic relationships, as we do with the government of Libya.”)

In her recent post, Meg Satterthwaite suggests that, wholly apart from sovereignty concerns, if al-Liby is not brought before a judge “without delay,” the U.S. will violate his human rights under international law.  Meg appears to be relying primarily, although not exclusively, on Article 9.4 of the International Covenant on Civil and Political Rights (ICCPR), which provides that “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”

If al-Liby were being held solely on the basis of the criminal charges against him, then presumably he would be presented to a federal judge within days, consistent with Article 9.4.  But we assume he has not yet been formally arrested for the alleged criminal offenses.  Instead, he has been placed in law-of-war detention, at least for the time being, based on the government’s determination that he a “senior al-Qaida member.”  Does Article 9 of the ICCPR limit the authority of states in an armed conflict to detain members of enemy forces in order to incapacitate them in the conflict?  Almost certainly not.

The relationship between the ICCPR and the international humanitarian law that governs the conduct of armed conflict is complex (and contested).  The most recent view of the United States (see paragraph 507 of its Fourth Periodic Report on the ICCPR) is that although “[d]etermining the international law rule that applies to a particular action taken by a government in the context of an armed conflict is a fact-specific determination, which cannot be easily generalized,” and “the applicable rules for the protection of individuals and conduct of hostilities in armed conflict are typically found in international humanitarian law,” it remains the case that “international human rights law and the law of armed conflict are in many respects complementary and mutually reinforcing.”  To similar effect, the position of the U.N. Human Rights Commission with respect to Article 9 of the ICCPR, in particular (see paragraph 67 here), is that “article 9 [of the Covenant] applies also in situations of armed conflict to which the rules of international humanitarian law are applicable,” and that while the more specific rules of IHL “may be especially relevant for the purposes of the interpretation of article 9, both spheres of law are complementary, not mutually exclusive.”

Whatever the exact, “complementary” relationship might be between the ICCPR and IHL, we think it is safe to say that the ICCPR is not fairly construed to require prompt presentment before a judge for all detainees in an armed conflict, a norm that would be inconsistent with virtually all historical state practice.  The remaining question, then, is whether the fact that al-Liby is also subject to a pending indictment somehow limits the authority of the U.S. to detain him under the law of war without prompt judicial presentment.  We haven’t looked into this question, but we think it is safe to say that the United States is unlikely to construe the ICCPR to establish such an exception to the ordinary norms of detention in an armed conflict.

 

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About the Authors

is Distinguished Visitor from Practice at the Georgetown University Law Center. She served as Deputy Assistant and Deputy Counsel to the President, and Legal Adviser to the National Security Council.

is a Professor at the Georgetown University Law Center.