As Ben says, there is a lot to talk about with respect to al-Aulaqi v. Panetta, a civil suit filed today by the ACLU and CCR in an attempt to obtain money damages for airstrikes conducted by the United States in Yemen that resulted in the deaths of three U.S. citizens (Anwar al-Aulaqi, his son, and Samir Khan). This post picks at just one of the issues raised by the suit, though I think it a very important one: Whether IHL applies to the airstrikes in question.
The suit claims that IHL should not be applied in considering the legality of these airstrikes, for U.S. actions in Yemen--including the airstrikes specifically at issue in that suit—“have taken place outside the context of armed conflict.” (Complaint ¶1) This is incorrect.
There are several distinct theories pursuant to which one might conclude that these airstrikes were part-and-parcel of an armed conflict. The most familiar (and controversial) of them turns on the familiar post-9/11 claim that there exists an armed conflict involving the United States and al Qaeda, one that it is not limited to Afghanistan but rather tracks the locations of the parties to the conflict wherever they may roam. Pursuing that line of argument of course requires establishing that AQAP either is part of al Qaeda itself or that it has joined the conflict on al Qaeda’s side. We are all pretty familiar with the debates to which all of those points give rise. I think the argument works, but my reason for posting is to point out that this is not the only argument for claiming the existence of armed conflict vis-a-vis AQAP and the airstrikes at issue in this suit.
An alternatve approach is to ask whether the US and AQAP are parties to an armed conflict standing alone, without attempting to tie in the larger al Qaeda network and fact patterns relating to it. Under this heading, there are at least two analytical paths. The more difficult of the two is to focus narrowly on the exchange of violence between the United States and AQAP, full-stop: i.e., the instances in which AQAP has attempted to kill Americans (whether here or there), and the instances in which the U.S. government has returned the favor (involving drone strikes, manned aircraft, and sea-launched missiles). I think this works as well, but my real point is to draw attention to the other pathway for this analysis, one that I think is the easiest of the three to accept. Simply put, there is and for some time has been a non-international armed conflict underway in Yemen pitting AQAP against the government of Yemen, and the United States is a party to this conflict as well. Public reports suggest we are not just providing financial and material support, but also on-the-ground training, operational guidance, and intelligence support, not to mention dozens of airstrikes. For more, see my arguments here, here, and pages 29-32 of the pdf posted here.
The bottom line is that if the district court decides to adjudicate the ACLU/CCR claim, and if it also decides not to simply defer to the executive branch’s conclusions regarding the existence of armed conflict, there still would be no need to weigh for it to weigh in on the nature and scope of the asserted existence of a conflict with al Qaeda writ large or the nature of the AQAP/al Qaeda relationship. The court could and should simply rest on the narrow theory described above, moving on with the analysis on the assumption that IHL does indeed apply. [UPDATE: For a related perspective, albeit not in connection with the ACLU/CCR suit, check out Deborah Pearlstein's observations here. See also this compendium of events from AEI.]