Targeted Killing: Drones

How Does the President's Policy on Lethal Force Apply in Yemen Today?

By Robert Chesney
Wednesday, November 20, 2013, 6:00 AM

Long War Journal reports an airstrike on three AQAP fighters in Hadramout, Yemen, earlier today.  By LWJ's count, this would be strike number 23 for the year (suggesting 2013 might fall short of 2012's high of 42 strikes, but still far north of 2011's 10 strikes).  I mention this in part because the numbers are interesting in and of themselves (they certainly must be considered in confronting the question whether there is a situation of armed conflict in Yemen as to which the United States is a party, separate and apart from claims of a boundary-less global conflict with al Qaeda and its associated forces).  But my main reason for writing about it now is to draw attention to the question of how these airstrikes relate to the Obama administration's much-discussed policy framework for the use of lethal force in counterterrorism operations.

As readers will recall, President Obama in May 2013 gave a speech at the National Defense University addressing this topic (see here for Ben and Ken's remarkable treatment in their book Speaking the Law), and the White House issued a "fact sheet" that same day spelling out the policy in more particular terms.  There are several important policy constraints mentioned in the fact sheet for the use of force "outside areas of active hostilities" (notably including a strong preference for capture when feasible), but I wish to draw attention to one in particular:  "the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons."  Does that constraint apply to strikes in Yemen, and if so how is it being interpreted?

Consider three possible answers:

Answer 1:  The administration considers Yemen to be an "area of active hostilities," akin to Afghanistan, such that this particular policy constraint does not apply (thus leaving in place the background claim that there is a context of armed conflict authorizing the use of force to the extent permitted by LOAC).

Answer 2:  The administration does not consider Yemen to be an area of active hostilities, so the policy applies...and was satisfied by today's strike because it targeted a specific person (or persons) who was linked to operational planning targeting US persons.

Answer 3: Same as Answer 2, except that that the targeted person(s) was not personally linked to specific plotting against US persons, but rather was (no more and no less than) an AQAP leadership figure at a time when AQAP as a whole (or perhaps a relevant subpart of AQAP, ala al Shabaab?) is understood to be generally committed to attacking US persons if and when possible.

So which is it?  I have no idea.  Perhaps none of the above.  But if it is one of these three options, it sure would be interesting to know which it is.  Answer 2, I think, would be the least controversial in terms of consistency with how the president's speech has been read and understood.  Answer 1, in contrast, might be surprising insofar as some observers assume that the only "area of active hostilities" is Afghanistan at this point.  It seems to me that hostilities in Yemen are pretty active as well, but at any rate this approach might genuinely surprise some reasonable observers.   And Answer 3 might also be surprising insofar as reasonable observers understood the policy to require something more individualized, along the lines of Answer 2.  At any rate, we should hear more from the administration regarding which (if any) of these models best describes our current posture toward drone strikes in Yemen; it is not an issue that is going away.