International Law

Tools and Tradeoffs: Putting Out a Draft for Comments

By Benjamin Wittes
Wednesday, February 13, 2013, 5:23 PM

My colleague at Brookings, Daniel Byman, and I have written a lengthy paper on the different tools the United States uses in going after citizens abroad believed to have allied themselves with the enemy. The paper is still a draft, but given the controversy over the White Paper, we thought was quite timely. Since one of the great things about Lawfare is the incredible expertise of its readership, we thought we might benefit from comments and suggestions from the Lawfare community. The paper is entitled, "Tools and Tradeoffs: Confronting U.S. Citizen Terrorist Suspects Abroad."

The paper is not principally a work about law, though it obviously has significant legal elements. Rather, it is an attempt to survey the bewildering array of authorities and powers the United States has deployed against its citizens when they are believed to have allied themselves with Al Qaeda or its associated forces overseas and to try to look at the costs and benefits of the various tools at the disposal of the United States.

As I say, the paper is still very much a draft and we will undoubtedly make changes before we publish the final version, so comments, suggestions, corrections, and howls of rage are all welcome--as are examples we may have missed in our attempts to identify the universe of cases relevant to the study.

Here's the introduction:

By its very name, the Hellfire missile promises to visit Biblical wrath upon those on its receiving end. On September 30, 2011, it delivered just that to Anwar al-Awlaki, the U.S.-born preacher and an operational leader of Al Qaeda in the Arabian Peninsula, who had plotted repeated attacks from his hideout in Yemen. The same strike also took out Samir Khan, another U.S. national and propagandist for Awlaki’s organization. A separate strike a few weeks later killed Awlaki’s teenaged son, also an American citizen. The latter two appear to have been collateral damage in strikes aimed at others. Awlaki, by contrast, was not. He was specifically targeted with lethal force by a government, his own government, which had semi-publicly sought his death for months—tracking him across Yemen even as it fended off litigation by his family to remove him from the U.S. government’s targeting list.

Long before the Awlaki killing, the Obama administration had put the Bush administration’s drone program on steroids, killing hundreds of suspected militants with near-constant strikes in the tribal areas of Pakistan. Awlaki, however, was not just another dead terrorist. Because of his U.S. citizenship, his killing moved the Obama administration into an uncharted realm for counterterrorism. His seemingly straightforward killing masked innumerable complexities, and, perhaps more than any single operation, it illustrated the jump between the pre-9/11 and post-9/11 worlds. Once upon a time, Attorney General Janet Reno had fretted about whether the United States had the legal authority to kill the Saudi terrorist Osama bin Ladin, who had never set foot in the United States, but who had publicly declared war on it—demonstrating his grim intentions by planning the bombings of U.S. embassies in Africa and the USS Cole. By contrast, in killing Awlaki, the Obama administration targeted a U.S. citizen—one who had never been proven in any court to have been directly responsible for actual deaths—and has actively resisted judicial supervision. Indeed, the administration has insisted in court that such targeting could not be reviewed, either before the strike or after—and that it cannot be forced to release publicly the memoranda that lay out its legal rationale for undertaking the strike.

The Obama administration carried out the strike not against a member of the core of Al Qaeda, but against a member of an affiliated group that had not even existed on September 11, 2001, meaning that the Obama administration was emphasizing the expanded the field of battle—a field expanded both geographically and conceptually—even though Obama had criticized the Bush administration for having had too expansive a concept of the War on Terror.

Yemen itself, meanwhile, was both ally and enemy, helping the United States fight terrorism at times, while at other times tolerating—or even directly aiding—jihadists bent on killing Americans. And while the killing led to condemnation from human rights groups that it “violates both U.S. and international law”—some of whom had earlier brought an unsuccessful lawsuit to prevent it from happening—it barely caused a ripple of protest among the American people.  More Americans agree that “terror suspects who are U.S. citizens” should “be deliberately killed by U.S. forces” than favor granting these suspects “the constitutional right given to U.S. citizens to be tried in a court of law.” If anything, the strike made President Obama more popular at a time when the stagnating American economy showed his presidency’s popularity at a low ebb.

The Awlaki strike, however, is only one of a diverse array of approaches the United States has taken towards U.S. citizens abroad who align themselves with the enemy and travel abroad to wage war. This relatively small group of people has provoked, in addition to drone strikes, a treason indictment, other terrorism prosecutions in federal courts, detention under military law, imprisonment in allied countries, and a number of instances of what we might call tolerance—a decision that the individual in question just does not merit any serious effort at either an arrest or a kill. The handful of American jihadists active overseas against the United States present special challenges in counterterrorism, because they are comparatively free, relative to citizens actually inside the United States, to integrate themselves into enemy forces. Those who stay at home, by contrast, may find it difficult to make contact with the enemy despite their earnest desire to do so. At the same time, U.S. citizens also enjoy certain legal rights vis-a-vis the U.S. government and consequent expectations of free travel and government protection both domestically and overseas that non-citizens do not enjoy. In essence, citizens like Awlaki are potentially the most dangerous terrorists—in part because the array of U.S. policy tools to defeat them is comparatively restrictive and has gaps, while policy towards them is inconsistent.

For Al Qaeda and associated movements, however, such Americans present both a blessing and a risk. For propaganda purposes, they enable Al Qaeda to play up its appeal and underscore its claim to be a global organization. And the cultural and personal connections these Americans have to their home make them more effective propagandists and recruiters—and as operators, potentially better able to avoid suspicion. However, Americans often do not fit in neatly with the locals, not understanding the language and culture. In addition, there is always the chance that an American might be uncommitted and thus easily suborned upon his return—or perhaps even a spy from the start. Successful terrorist groups are often paranoid ones, and trust of an American would come slowly.

In this paper, we look at American citizens abroad who join the jihadist cause. We do not consider those—like Jose Padilla or Najibullah Zazi—who returned to the United States and were captured domestically. Though such people raise some of the same issues as Americans who remain abroad, the ability to capture them domestically makes them analytically distinct in critical respects and at key moments. Rather, our focus here is on Americans who travel overseas to join the enemy and either do not attempt to return or have not yet done so—and with whom the United States must thus contend while they remain abroad.

For policymakers, American jihadists in foreign countries present several tricky policy problems compared with similar foreign terrorists. Very few scholars and commentators argue for judicial review of targeting decisions with respect to strikes on Al Qaeda leaders in general, for example. But the Awlaki case has spawned multiple calls for judicial review when the government targets a U.S. citizen. U.S. nationals are also far more politically difficult to hold in long-term military detention than are non-citizens, and the courts tend to show a greater interest in and solicitude for their cases. What’s more, they are not eligible for trial before military commissions. A few, like Awlaki, are operationally active at a senior level, enabling an administration to claim that they pose an imminent threat; but others are propagandists, engaging in behavior that is insidious but arguably more protected legally. So the options for handling U.S. nationals supporting terrorists abroad tend to be starker. As a practical matter, there are only four: In narrow legal circumstances, as in Awlaki’s case, the United States can target them with lethal force. When American forces manage to capture them, trial in federal court is a virtual certainty. Sometimes, the United States can assist the government of the country they have ensconced themselves to prosecute on their own. Beyond that, however, authorities—although they never quite say this—have to tolerate the activities of such people. These different tools each involves tradeoffs, some of them obvious and some of them subtle.