From Lawfare: On the Legality of the Strike that Killed Ayman al-Zawahiri

- Click here for the article. 

. . . From a U.S. legal perspective, the core question in a case like this (involving the use of lethal force against a non-U.S. person outside the United States) involves the authority of the Biden administration to conduct the strike. As noted above, after all, many people probably have come to view the whole idea of the war on terrorism as a thing of the past, including especially inside Afghanistan given the formal U.S. withdrawal. But there is zero doubt that this is not the administration’s position. Notwithstanding the changes described above, this administration continues to maintain (like the Bush, Obama, and Trump administrations before it) that the 2001 Authorization for Use of Military Force remains operative, meaning that the only important questions from a separation-of-powers perspective are whether the AUMF applies to the organization in question and whether the individual involved is relevantly-connected to that organization. And here those are exceptionally easy questions to answer, for the AUMF’s organizational scope always has most-readily encompassed core al-Qaeda, and arguably no one alive at the time of the strike better embodied core al-Qaeda than al-Zawahiri. That the 2001 AUMF applied to this strike, in short, is not a hard question.

What of the fact that the United States withdrew its overt military presence from Afghanistan? As I discuss in more detail below, this change raised questions about the continuing relevance of the law of armed conflict as to any activities that the United States might yet conduct there, and for similar reasons it raised questions about the continuing relevance of the AUMF vis-a-vis the Taliban. But nothing about the withdrawal from Afghanistan suggested a U.S. government intent to declare an end to the AUMF’s relevance as to al-Qaeda. Indeed, the government expressly and persistently asserted its continued authority and intent to conduct “over the horizon” strikes on al-Qaeda and possible other targets, when the occasion might arise. And here was such an occasion.

How about the fact that the strike apparently was not carried out by the U.S. military, and thus almost certainly was conducted by the CIA as a Title 50 Covert Action? Nothing new about that; for nearly two decades the CIA has had authority to use lethal force for at least some counterterrorism operations, and whatever the policy merits of that institutional decision there is no serious legal argument that the CIA somehow is precluded from carrying out such strikes. To which one might respond: ah, but what of Executive Order 12333 and its famous prohibition on assassination? For starters, that prohibition is not specific to the CIA; it applies to all U.S. personnel of whatever agency, and for that matter to others acting at the behest of the United States. But more importantly: the longstanding position of the U.S. government is that it is not an assassination to use lethal force either in the context of armed conflict or otherwise when acting in self-defense in response to a threat to American lives. For more details on that, please see my 2014 article “Postwar.” There, I explain how the United States some seven years ago already had shifted from an armed conflict model to a self-defense model for lethal force outside the combat zone of Afghanistan; now, it’s just that this is true for Afghanistan too.