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Monday, September 24, 2012

Legal Issues Related to the Lethal Targeting of U.S. Citizens Suspected of Terrorist Activities

Jennifer K. Elsea
Legislative Attorney

The killing of Anwar Al-Awlaki and another U.S. citizen by airstrike in Yemen, although never officially attributed to U.S. military action,1 has fueled the ongoing debate about the legal propriety of targeted killings, in particular where a U.S. citizen is targeted or killed.2 While the Obama Administration has not released a detailed description of the legal rationale undergirding the targeting policy,3 some insight into the Administration’s thinking can be gleaned from speeches given by high-ranking Administration officials and government filings in a legal case brought by Awlaki’s father in an effort to enjoin military operations against his son. This memorandum is an effort to clarify the debate by providing legal background, setting forth what is known about the Administration’s position and identifying possible points of contention among legal experts and other observers, including the view from abroad.

Just over a decade ago Congress responded to the September 11 terrorist attacks by authorizing the President to use all necessary and appropriate military force to subdue those responsible as well as those who harbored the perpetrators.4 U.S. military operations began in Afghanistan the following month to drive the Taliban from power and eliminate the Al Qaeda safe haven from the territory under Taliban control. The use of armed but unmanned aerial vehicles – UAVs – also known as drones, became a new feature of warfare in the resulting conflict. As the use of UAVs has increased, so apparently has the debate about the legal propriety of their use. There seems to be wide agreement that UAVs are permissible to the same extent as any other weapon of war used in accordance with the principles of the laws of armed conflict (also known as international humanitarian law), but their remote operation from territory where no combat is taking place and the fact that they may be operated by non-military personnel raise questions about the scope of the armed conflict and who qualifies as a participant in it.

Date of Report: May 4, 2012
Number of Pages: 23
Order Number: M-050412
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