JURIST Guest Columnist Morris Davis of Howard University School of Law says the recent killing of Anwar al-Awlaqi highlights the fact that the CIA drone program violates the law of war because it is a civilian institution, lacking combatant immunity…

I have been critical of President Barack Obama’s embrace and expansion of the national security policies he inherited from President George W. Bush and it is deeply disappointing that he seems to have forgotten the shortcomings he condemned during the campaign and in his first few months in office. JURIST Contributing Editor Jeffrey Addicott was correct when he argued in a recent article, Anwar al-Awlaqi and the Law of War, that President Obama has shown “a failure in leadership” that “does tremendous damage to the US commitment to abide by the proper rule of law.” I do not, however, agree with Addicott’s rationale.

In a nutshell, Addicott argues that anyone can see that the killing of Anwar al-Awlaqi was “perfectly legal” and he ridicules President Obama for his failure to explain to the American people and the world that killing al-Awlaqi was legally justified by the 2001 Authorization for the Use of Military Force (AUMF) and the law of war. The fact that not everyone has his perfect clarity shows it is not really that simple.

On September 12, 2001, President Bush submitted a proposal to Congress to authorize a military response to the 9/11 attacks. On September 14, 2001, the Senate voted 98-0 and the House voted 420-1 to pass the AUMF as a joint resolution “authoriz[ing] the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.”

There are two significant points related to the AUMF that Addicott ignores. First, the AUMF authorized the use of military force, period. Reports on the drone strike against Anwar al-Awlaqi in Yemen say that it was conducted by the CIA, a civilian agency made up of civilian employees and civilian contractors. The US Armed Forces operate a military-run drone program, but military force did not kill al-Awlaqi. Second, Congress purposefully limited the scope of the president’s authority to use force. President Bush’s proposed resolution [PDF] contained language that would have allowed him to engage those responsible for 9/11 and also take action “to deter and pre-empt any future acts of terrorism or aggression against the United States.” Congress removed the latter provision from the final joint resolution. As Senate Majority Leader Tom Daschle explained, “Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.”

Few if any of the 518 members of Congress who voted for the AUMF in September 2001 could have imagined that they were conferring legal justification more than a decade later for a CIA conducted civilian missile strike on a US citizen (who was an imam at a DC area mosque, the Muslim chaplain for George Washington University, and a religious scholar consulted regularly by major news organizations at the time the AUMF passed) in Yemen several months after Osama Bin Laden was killed. The al-Awlaqi scenario appears to be closer to the power President Bush had proposed that was deliberately rejected by Congress.

Similarly, Addicott’s explanation of what the law of war permits is on the mark, but his application to the killing of al-Awlaqi glosses over some genuine issues by focusing solely on the status of the target of the attack and ignoring the status of the attackers. Generally, the deliberate killing of another human being is considered murder unless some legal justification provides immunity. The law of war does just that by extending combatant immunity to lawful combatants who kill in the course of armed conflict, provided they comply with the law of war, as JURIST contributor Geoffrey Corn noted a May 2006 article entitled War Crimes and the Limits of Combatant Immunity. The CIA’s civilian employees and civilian contractors are not lawful combatants and are not entitled to combatant immunity. As the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions Philip Alston reported [PDF]:

[I]ntelligence personnel do not have immunity from prosecution under domestic law for their conduct. They are thus unlike State armed forces which would generally be immune from prosecution for the same conduct (assuming they complied with [international humanitarian law] requirements). Thus, CIA personnel could be prosecuted for murder under the domestic law of any country in which they conduct targeted drone killings, and could also be prosecuted for violations of applicable US law.

The law of war provides lawful combatants with immunity from responsibility for collateral damage that occurs when they conduct legitimate attacks on legitimate military objectives. That includes immunity from responsibility for civilians killed in the course of a proper attack on a legitimate military target. Addicott’s article focuses solely on the killing of al-Awlaqi and fails to mention that three others died in the attack. He also fails to explain how the law of war immunizes CIA civilians for killing other civilians — what would be collateral damage in the course of a legitimate military attack by lawful combatants — in the absence of combatant immunity.

The concern over using civilian CIA personnel to conduct combat operations is not inconsequential. A primary objective of the law of war is to limit the effects of war, particularly the effects on civilians and civilian objects. A fundamental law of war principle is distinction, which mandates uniforms or other distinctive markings to clearly denote combatants. The failure to comply with the principle of distinction, a fundamental requirement for lawful combatancy, is one of the reasons the US cites for classifying enemy detainees as unlawful combatants rather than prisoners of war.

The importance of the combatant-civilian distinction was apparent when the Pentagon prepared the latest version of the Manual for Military Commissions [PDF], the rulebook for the trials of some of the alleged unlawful enemy combatants at Guantanamo Bay. The 2007 version of the Manual for Military Commissions, which made rules implementing the Military Commissions Act of 2006, said that “[f]or the accused to have been acting in violation of the law of war, the accused must have taken acts as a combatant without having met the requirements for lawful combatancy.” It went on to add that such persons “do not enjoy combatant immunity because they have failed to meet the requirements of lawful combatancy under the law of war.” That language was removed when the current manual was drafted because of concerns among senior US government officials that the language on lawful combatancy and combatant immunity could be viewed as an acknowledgment that CIA civilian drone operators are committing war crimes.

Whether it is operating simultaneous military and civilian drone programs or using a Pakistani medical doctor, who had special protected status under the law of war as medical personnel, to acquire information on Bin Laden (who was a legitimate military objective), the US undermines the law of war by blurring the intended bright line separating combatants from civilians. The ability to bend the law to what we want it to be at any given moment diminishes us and our commitment to abide by the proper rule of law. That truly is a failure in leadership.

Morris Davis is a Professor of Law at Howard University School of Law and serves as the Executive Director and Counsel of the Crimes of War Education Project. He was the chief prosecutor for the military commissions at Guantanamo Bay, Cuba, from 2005 to 2007. He was a US Air Force judge advocate for 25 years and retired as a Colonel in October 2008. He also served as a senior specialist in national security at the Congressional Research Service.

Suggested citation: Morris Davis, Combatant Immunity and the Death of Anwar al-Awlaqi, JURIST – Forum, Oct. 17, 2011, http://jurist.org/forum/2011/10/morris-davis-anwar-al-awlaqi.php.