CommentaryDuring the Barack Obama presidency, the Justice Department prepared a 16-page unsigned, undated “White Paper” that outlined the administration’s legal reasoning justifying unmanned aerial vehicle (UAV)-targeted killings of terrorism suspects if an informed high-level official decided that the target was a high-ranking al-Qaida figure or affiliate who posed an imminent threat of violent attack against the United States and that capturing him was not feasible. For a threat to be imminent, it was not necessary for a specific attack to be underway. Such an action was a lawful killing in self-defense. Most troubling was the legal position taken by the Pentagon, CIA and State Department that any limits on the government’s claimed authority were not enforceable in any judicial forum to evaluate these constitutional considerations.
No case tested President Obama’s principles as markedly as did that of Anwar al-Awlaki, the fiery preacher, born in New Mexico in 1971. In the early 2000s, al-Awlaki, who was imprisoned for 18 months in Yemen, began to forcefully embrace terrorist violence and by November 2009, when Major Nidal Malik Hasan, an army psychiatrist, was charged with opening fire at Fort Hood, killing 13 people, investigators discovered that the major was in extensive communication with al-Awlaki. The FBI identified multiple calls that turned up on laptops, al-Awlaki’s website and Facebook calling for the death of President Obama.
A detailed legal memorandum was prepared that contended that al-Awlaki was a lawful target because he was participating in the war with al-Qaida and because he was an imminent threat to US national security despite his US citizenship. On September 30, 2011, a missile strike in Yemen, a country with which the United States was not at war, killed al-Awlaki. This was the first time since the Civil War the US government, without a trial, decided to carry out the deliberate killing of an American citizen considered a wartime enemy.
President Obama, by his own insistence and guided by Senior Counterterrorism Advisor John Brennan, signed off on and personally approved every drone strike against al-Qaida in Yemen, and he had several reasons for becoming so immersed in lethal counterterrorism preparations. A student of anti-war writings of Augustine and Thomas Aquinas, the president believed that he should take moral responsibility, demonstrating striking self-confidence that his own judgment should be brought to bear on the use of drone strikes. In applying his lawyering skills to counterterrorism, it was enabling not constraining his proactive campaign against al-Qaida even to the killing of an American cleric in Yemen.
Human Rights Law, international humanitarian law and the Geneva Convention dictate that every effort must be made to arrest a suspect in accordance with the principles, necessity and proportionality of the use of force. The president in this case couldn’t continue to rely on the implied authority of the Authorization for Use of Military Force (AUMF) or the power of the commander-in-chief clause in Article II of the US Constitution to justify his actions. Unchecked unfettered power was ripe for potential abuse, regardless of whether it was Barack Obama, Donald Trump or Joe Biden.
The Trump Case
On January 3, 2020, President Donald Trump authorized a unilateral targeted military strike in Iraq against Iranian General Qasem Soleimani, who at the time was the leader of the Iranian Revolutionary Guard (IRGC). A major financier and sponsor of terrorism, he was believed to be behind attacks that resulted in the deaths of US military personnel. The main purpose of this strike was to prevent Soleimani from further supporting and initiating offensive action against US–backed interests in Iraq.
According to the Trump administration the threats posed by Soleimani’s IRGC were imminent; therefore, unilateral action was needed to protect US national security interests. Furthermore, for the first time in history, the United States labeled another country’s (Iran) military, the IRGC, a foreign terrorist organization (FTO).
The Trump administration provided two sources for legal justification in the killing of General Soleimani. The first was the power of commander-in-chief under Article II of the Constitution. Iranian offensive actions, including attacks on US diplomatic personnel and service members by the IRGC in Iraq, constituted a threat to national security interests, and Soleimani’s presence in Iraq resulted in an imminent threat to US interests there, justifying the president’s authorization of military force.
The second argument was presented by Secretary of State Mike Pompeo to the House Foreign Affairs Committee. He asserted that this targeted killing was appropriate within the guideline of the AUMF because the link between the Iranian government and terror networks, such as al-Qaida and the Houthi rebel network in Yemen, fit the guidelines for undertaking unilateral military action. The 2002 AUMF specifically authorized the use of United States armed forces against Sadam Hussein’s government in Operation Iraqi Freedom. The operative text says, “The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq.” It is not at all inappropriate to interpret the statute to authorize the president to use force to defend US national security from the threat posed by ISIS in Iraq. It is clear that the intent and application of the 2002 AUMF needed to be enforced against the Hussein regime and ISIS, not Iran and Soleimani.
The Biden Case
On August 3, 2022, President Joe Biden authorized the CIA drone strikes that killed Ayman al-Zawahiri in Afghanistan. Zawahiri was a critical advisor to Osama bin Laden and considered a mastermind in the planned devastating attack on the United States on September 11, 2001.
Zawahiri took over al-Qaida as its leader in 2011, after US forces killed bin Laden in Pakistan. In that role, al-Zawahiri continued to call for violent attacks against the United States and its allies. In the past year US intelligence located Zawahiri, who had relocated from Pakistan to Kabul in Afghanistan. He and his family’s activities were monitored, and once he arrived at a safe house, he developed a routine pattern of life with daily habits. The actual strike took out only Zawahiri on a balcony without harming his wife or children.
The legal justification for taking out al-Zawahiri was provided by National Security Advisor Jake Sullivan, who said that Zawahiri was playing an active role at a strategic level and directing al-Qaida and continuing to pose a severe threat against the United States and American citizens everywhere. The president stressed that the Taliban was not worried ahead of the strike, adding that Zawahiri’s presence in the country was a direct violation of the Doha Agreement, which the United States and the Taliban signed in 2020 under President Trump. That agreement provided assurances to the international community that the Taliban would not allow Afghan territory to be used by terrorists to threaten the security of other nation states.
As in our prior two cases, despite the justification offered by President Biden for taking action, there are clearly issues as to whether Zawahiri posed an imminent threat to the national security interests of the United States. The International Covenant on Civil and Political Rights (ICCPR), to which the United States is a ratified party, emphasizes the inherent right to life without distinction of any kind, including for persons suspected or convicted of even the most serious crimes.” There also exists the requirement of the Geneva Conventions and the US War Crimes Act, which emphasizes that a targeted killing is lawful only when deemed necessary to protect life and no other means is available to protect life.
It is also argued that the drone strike killing Zawahiri violated the War Powers Resolution covering three circumstances under which President Biden can introduce US Armed Forces into hostilities. The first is a congressional declaration of war, which has not occurred since World War II. Second, in a national emergency created by attack on the United States, its territories, possessions or armed forces. Third, where there is specific statutory authorization, such as the AUMF. Though Zawahiri was indeed instrumental in the 9/11 attack, the key question to consider in 2022 is whether he posed a continuing imminent threat to our national security that warranted his assassination rather than seeking his arrest and prosecution under United States law.
I would agree that Zawahiri was a legitimate target under the AUMF of 2001 because he was the one “responsible for the recent attacks launched against the United States.” The problem is that the AUMF has been interpreted too broadly to go after specific targets globally that do not pose a direct imminent threat to our homeland. It has been the basis for US military involvement in over 85 countries and allows the president to use his unfettered power to attack without seeking approval from Congress. We have witnessed four presidents, Bush, Obama, Trump and now Biden, target specific leading actors in al-Qaida, ISIS and related terrorist organizations, and, in the process, they have also killed countless civilians.
As I have consistently argued, Congress has to reassert its position in all matters related to war and peace. If national security issues are unilaterally decided by the president, Congress, by default, is fully implicated due to its failure to restrain the executive by law or accepted norms. It is incumbent on Congress to repeal the outdated AUMFs and replace them with new legislation that permits the president to carry out the constitutional duty of protecting national security while creating a system that requires internal/congressional oversight, consultations and approval. The execution of a new AUMF would preserve the United States’ role as a leader in the global fight against terror, while further ensuring separated governmental power as proper checks and balances, which is vital to the proper functioning of our political system.
Though the focus has shifted under Biden to conflicts with Russia and China and we are not overly consumed with the threat of jihad terrorism in the post 9/11 period, the fact remains that al-Qaida is a legitimate concern, as are other terrorist groups that have and will splinter and regroup after our two-plus decades war on terrorism.
Dr. Leonard Cutler is a professor of political science and public law at Siena College in upstate New York. His research and scholarship have focused on national security policy and the American presidency. Additionally, he has provided testimony to the United States Congress and the Obama Administration on human rights and unlimited detention.
Suggested citation: Leonard Cutler, Targeted Killing of Avowed Terrorists: Three US Presidents and Three Cases in Point, JURIST – Academic Commentary, August 17, 2022, https://www.jurist.org/commentary/2022/08/leonard-cutler-targeted-killing-of-terrorists/.
This article was prepared for publication by Hayley Behal, JURIST Commentary Co-Managing Editor. Please direct any questions or comments to her at commentary@jurist.org
