There has been lots of commentary already on the newly-released (but heavily-redacted) OLC opinion, so I’ll focus mine on a key point I haven’t yet seen made.

The OLC memo bases much of its analysis on the assumption, apparently based on facts that have been redacted in the publicly-released version, that Anwar al Aulaqi was lawfully targetable under Congress’s 2001 Authorization for the Use of Military Force.

The memo puts it this way:

Based upon the facts represented to us, moreover, the target of the contemplated operation has engaged in conduct as part of that organization that brings him within the scope of the AUMF. High-level government officials have concluded, on the basis of al-Aulaqi’s activities in Yemen, that al-Aulaqi is a leader of AQAP whose activities in Yemen pose a “continued and imminent threat” of violence to United States persons and interests. Indeed, the facts represented to us indicate that al-Aulaqi has been involved, through his operational and leadership roles within AQAP, in an abortive attack within the United States and continues to plot attacks intended to kill Americans from his base of operations in Yemen. The contemplated DoD operation, therefore, would be carried out against someone who is within the core of individuals against whom Congress has authorized the use of necessary and appropriate force.

But what if “the core of individuals against whom Congress has authorized the use of necessary and appropriate force” no longer exists? Even if we accept that there can be “associated forces” in a non-international armed conflict, or NIAC (a concept which itself is disputable), how can there be forces “associated” with a core group that no longer exists, at least not in the way it did when force against it was originally authorised? 

Perhaps this was a closer call in 2010, when this memo was written. But since then, President Obama and others in his administration have repeatedly referred to “al Qaeda core” – the group the US went to war against in 2001 – as “decimated”. It follows, then, that the United States cannot merely declare, without further explanation, that the armed conflict extends to an insurgent group in another country, such as AQAP, that claims ideological affiliation with a “core” group that essentially no longer exists. This position ignores settled international law.

Under International Humanitarian Law, or IHL, an armed conflict only exists if hostilities are taking place between a state and another state, or between a state and a clearly defined non-state group with a central command and control structure. To constitute an armed conflict, hostilities must reach a level of intensity that is more than sporadic acts of terrorism.

The International Committee of the Red Cross (ICRC) has written extensively on this question in recent years, and said: “Non-international armed conflicts are protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State [party to the Geneva Conventions]. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organization.”

According to a 2008 Opinion Paper of the ICRC: “In order to distinguish an armed conflict, in the meaning of common Article 3, from less serious forms of violence, such as internal disturbances and tensions, riots or acts of banditry, the situation must reach a certain threshold of confrontation.” The two relevant criteria are the intensity of the hostilities and the organization of the parties.

Hostilities reach a minimum level of intensity when, for example, “hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces.”

Non-governmental groups will be considered “parties to the conflict” only if “they possess organized armed forces,” such as forces that operate “under a certain command structure and have the capacity to sustain military operations.”

To determine whether, when and where the United States is in an armed conflict, therefore, it is critical to understand who are the individual groups that might constitute “associated forces,” what is their connection to al Qaeda and/or the Taliban, whether there is a central command and control structure, and what level of hostilities exist between them and the United States.

As U.S. officials have acknowledged repeatedly, al Qaeda has splintered into many different branches and affiliates, revealing a growing decentralization of al Qaeda and its ideology since 9/11, and particularly since the death of Osama bin Laden in 2011. Although a variety of groups across Africa and the Middle East have taken up violent jihad, their targets are mostly local governments, or other governments in the region. Most are not targeting the United States or other Western countries and do not have close ties to a central al Qaeda organization, or “al Qaeda core.” Rather, many share a general ideology, and in some cases have adopted the widely-recognized brand name of “al Qaeda” for purposes of terrorizing a local population and government.

Charles E. Berger, National Intelligence Fellow at the Council on Foreign Relations and Assistant Special Agent-in-Charge of the Federal Bureau of Investigation, calls it “a loose coalition of separate terrorist groups with their own individual causes.”

Because these disparate groups do not operate under a centralized command and control structure, they cannot be considered one coordinated party to the armed conflict with the United States, for purposes of applying the laws of war. AQAP, then, cannot be an “associated force” of this splintered group that could plausibly fall within the scope of the 2001 AUMF.

None of this is to say that AQAP is not a dangerous group, or that other “affiliates” or ideological sympathizers of al Qaeda are not also dangerous, if not to the United States than to other countries and thousands of people around the world. But that does not necessarily mean that the United States is in an armed conflict with them – or should be. If the danger posed by any of those affiliates to the United States is sufficiently grave that we want to go to war with them, the President will need to make that case to the American people and to Congress, and seek the necessary authorization. He can’t just keep adding every new threat onto an old law that, certainly by the time the United States withdraws its combat troops from Afghanistan, will be, essentially, defunct.

As well it should be. War is an exceptional circumstance that may have been appropriate after the massive scale of the 9/11 attacks, but is not a productive response to every terrorist threat around the world. The United States can support other governments in their fights against AQAP, Boko Haram, ISIS and any others terrorist or insurgent groups by supporting their law enforcement and security services, and by constructive diplomatic engagement. The U.S. government also has plenty of authority to arrest anyone who has participated in terrorist acts against us, and to partner with foreign governments to stop those with terrorist plans. When a lethal terrorist act against the United States is truly imminent, and an arrest is impossible, then the United States can use lethal force (with drones or otherwise) to stop it, without being in a state of armed conflict. But the United States cannot justify the killings of individuals abroad – be they American citizens or foreigners – merely by calling them a member or leader of an “associated force” of al Qaeda. That’s an abuse of both domestic and international law.

Whether Anwar al-Aulaqi could have been justifiably killed as posing an “imminent threat” to the United States is another matter, and one which this heavily-redacted OLC memo does not answer.

As many others have pointed out, this memo raises more questions than it answers. Its release, although an important step forward as a matter of transparency, underscores why it’s so important for the Obama administration to release the rest of the legal memos pertaining to its targeted killing program.

For as David Cole aptly noted earlier on this blog, “When the world sees the United States killing thousands of people by remote control, and at the same time refusing even to acknowledge that it is doing so, the world justifiably fears the worst.”  The release of this one legal memo did nothing to solve that problem.