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Are the Benghazi Attackers Lawfully Targetable?

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Thursday, May 1, 2014 at 1:36 PM

Over at Foreign Policy, Dan Lamothe reports that Rep. Duncan Hunter will introduce legislation on May 7 that would authorize the Executive Branch to target the individuals who attacked the U.S. diplomatic facilities in Benghazi.  Hunter apparently would amend the 2001 AUMF to include the Benghazi attackers as lawful targets.  The idea of cracking open the AUMF raises all sorts of political complications and domestic legal questions, but Hunter’s proposal would raise very serious international law questions as well.

Although there was (notoriously) much confusion originally about who attacked the U.S. facilities on September 11, 2012, the United States now believes that the attackers were members of Ansar al Sharia (AAS).  According to the State Department, AAS has at least three chapters: Benghazi, Derna, and Tunisia.  The United States seems to have concluded that while AAS in Tunisia is “ideologically aligned with al Qaeda and tied to its affiliates, including AQIM,” AAS’s chapters in Benghazi and Darna are not forces associated with al Qaeda.  Indeed, the Chairman of the Joint Chiefs, General Martin Dempsey, told Congress that AAS is not covered by the 2001 AUMF.  Hence Rep. Hunter’s bill.

That bill is likely to face hurdles.  But what if it passes?  The United States then would have the domestic authority to target those who attacked its diplomatic facilities in 2012.  But unless the United States believed that those individuals pose an imminent threat of armed attack against the United States, it is very hard to see how such attacks would be consistent with international law.

It is plausible to treat the events of September 11, 2012 as an armed attack on the United States.  Any use of force by the United States in self-defense would have to meet the requirements of necessity, proportionality, and immediacy.  Targeting the attackers alone would be proportional, but it is hard to see how the use of force is – at this stage – necessary unless, as noted above, the attackers have another plot against U.S. interests well in train and are poised to execute it.  (Part of this inquiry would also require the United States to ask whether the government of Libya was unwilling or unable to suppress the plot itself.)  Further, the response to an armed attack requires an element of immediacy; the response must come within a reasonable time frame after the attack.  In this case, it has been 19 months since the attack; a U.S. response that targeted the attackers would hardly be “immediate.”  In short, without intelligence about additional, imminent threats, it would violate international law to target the Benghazi attackers using lethal force.

Of course, just because Congress authorizes such force, the President need not undertake military activities to the outer bounds of that authorization. An AUMF covering the Benghazi perpetrators would create a stronger domestic law predicate for action, but would not satisfy international law requirements and thus would not serve as a sufficient legal predicate for acting.  If it is clear from congressional debate that Congress doesn’t understand or respect this point, it might exacerbate allies’ concerns about U.S. respect for international law in our domestic politics

To date, the United States does not seem to have conducted or attempted to conduct lethal military operations against the Benghazi attackers.  Instead, it has offered $10 million for information that could lead to the capture of those attackers, and has filed criminal charges against several individuals for their involvement in the attacks.  A law enforcement approach like this one is on much stronger grounds as a matter of international law.

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