Al-Aulaqi v. Obama : When Does the President Have the Legal Authority to Target a U.S. Citizen?

1. Al-Aulaqi  v. Obama: When Does the President Have the Legal Authority to Target a U.S. Citizen? Prof. Robert F. Turner, SJD Center for National Security Law University of Virginia School of Law Columbia Law School Federalist Society September 20, 2010

2. Is President ObamaAnother “George W. Bush”?

3. Is President ObamaAnother George W. Bush? Presidential signing statements

4. Is President ObamaAnother George W. Bush? Presidential signing statements State Secrets Privilege

5. Is President ObamaAnother George W. Bush? Presidential signing statements State Secrets Privilege Wartime “surge”

6. Is President ObamaAnother George W. Bush? Presidential signing statements State Secrets Privilege Wartime “surge” Detention without trial

7. Is President ObamaAnother George W. Bush? Presidential signing statements State Secrets Privilege Extrajudicial “targeted killings” Wartime “surge” Detention without trial

8. Is President ObamaAnother George W. Bush? I’m only going to focus on the last of these right now, but I will be happy to address these other issues during Q&A or after the program. Presidential signing statements State Secrets Privilege Extrajudicial “targeted killings” Wartime “surge” Detention without trial

9. Is President ObamaAnother George W. Bush? I’m only going to focus on the last of these right now, but I will be happy to address these other issues during Q&A or after the program. In his first year in office, President Obama authorized more Predator drone strikes than Bush did in 8 years. Presidential signing statements State Secrets Privilege Extrajudicial “targeted killings” Wartime “surge” Detention without trial

10. Unmanned Dronesand “Targeted Killings”

11. Al-Aulaqi  v. Obama[filed 30 August 2010] Lawsuit filed in DC District Court on behalf of Yemeni father of U.S.-born Anwar Al-Aulaqi, who is reported by the media to be on a list of al Qaeda members who may be killed on sight.

12. When Does the President Have the Legal Authority to Target a U.S. Citizen? • Lethal force may be used against wrongdoers to protect human life under U.S. law governing self defense and defense of others.

13. When Does the President Have the Legal Authority to Target a U.S. Citizen? • Lethal force may be used against wrongdoers to protect human life under U.S. law governing self defense and defense of others. That’s why the FBI has hostage rescue units with trained snipers.

14. When Does the President Have the Legal Authority to Target a U.S. Citizen? Lethal force may be used during armed conflict when he is fulfilling his role as Commander in Chief to defeat the enemy and an American has elected to join the enemy force.

15. When Does the President Have the Legal Authority to Target a U.S. Citizen? If one of the 9/11 hijackers had been a known American citizen, that would not have immunized the plane from attack to prevent it from flying into the South Tower of the WTC, the White House or Capitol Building.

16. Who is Anwar Al-Aulaqi?

17. Who is Anwar Al-Aulaqi? 9/11 Report links him to two of the hijackers of American Airline Flight 77

18. Who is Anwar Al-Aulaqi? 184 innocent people died when that plane flew into the Pentagon. 9/11 Report links him to two of the hijackers of American Airline Flight 77

19. Who is Anwar Al-Aulaqi? 184 innocent people died when that plane flew into the Pentagon. The hijackers spent many hours alone with al-Awlaki in San Diego before the attacks of 9/11. 9/11 Report links him to two of the hijackers of American Airline Flight 77

20. Who is Anwar Al-Aulaqi? 184 innocent people died when that plane flew into the Pentagon. There is good reason to believe Awlaki at least had advance knowledge of the 9/11 attacks. The hijackers spent many hours alone with al-Awlaki in San Diego before the attacks of 9/11. 9/11 Report links him to two of the hijackers of American Airline Flight 77

21. Who is Anwar Al-Aulaqi? Maj. Nidal Hasan Ft. Hood 9/11 Report ties him to two of the hijackers of American Airline Flight 77

22. Who is Anwar Al-Aulaqi? Murdered 13, wounded 30 Maj. Nidal Hasan Ft. Hood 9/11 Report ties him to two of the hijackers of American Airline Flight 77

23. Who is Anwar Al-Aulaqi? Murdered 13, wounded 30 Maj. Nidal Hasan Ft. Hood Al-Awlaki told Hasan killing civilians was permissible and later praised his attack. 9/11 Report ties him to two of the hijackers of American Airline Flight 77

24. Who is Anwar Al-Aulaqi? Murdered 13, wounded 30 In March 2010, al-Awlaki released a tape denouncing President Obama for trying “to portray the operation of brother Nidal Hasan as an individual act of violence from an estranged individual. . . . Until this moment the administration is refusing to release the e-mails exchanged between myself and Nidal.” Maj. Nidal Hasan Ft. Hood Al-Awlaki told Hasan killing civilians was permissible and later praised his attack. 9/11 Report ties him to two of the hijackers of American Airline Flight 77

25. Who is Anwar Al-Aulaqi? Umar Farouk Abdulmutallab Christmas Day Bomber Maj. Nidal Hasan Ft. Hood 9/11 Report ties him to two of the hijackers of American Airline Flight 77

26. Who is Anwar Al-Aulaqi? Reportedly said al-Awlaki was “one of his al Qaeda trainers” in planning the attack. Umar Farouk Abdulmutallab Christmas Day Bomber Maj. Nidal Hasan Ft. Hood 9/11 Report ties him to two of the hijackers of American Airline Flight 77

27. Who is Anwar Al-Aulaqi? Reportedly said al-Awlaki was “one of his “al Qaeda trainers” in planning the attack. Umar Farouk Abdulmutallab Christmas Day Bomber Maj. Nidal Hasan Ft. Hood Yemini official said Christmas bomber Abdulmutallab was trained and equipped with explosives in a house in Yemen “built by al-Awlaki.” 9/11 Report ties him to two of the hijackers of American Airline Flight 77

28. Who is Anwar Al-Aulaqi? Umar Farouk Abdulmutallab Christmas Day Bomber Maj. Nidal Hasan Ft. Hood 9/11 Report ties him to two of the hijackers of American Airline Flight 77 Faisal Shahzad Time Square Bomber

29. Who is Anwar Al-Aulaqi? Shahzad said al-Awlaki was his “inspiration” for the planned attack. Umar Farouk Abdulmutallab Christmas Day Bomber Maj. Nidal Hasan Ft. Hood 9/11 Report ties him to two of the hijackers of American Airline Flight 77 Faisal Shahzad Time Square Bomber

30. Who is Anwar Al-Aulaqi? “I pray that Allah destroys America and all its allies.” - Anwar al-Aulaqi February 2009

31. Who is Anwar Al-Aulaqi? Oh – while he isn’t big on successful women (he won’t shake hands), he has several arrests for prostitution.

32. Who is Anwar Al-Aulaqi? Umar Farouk Abdulmutallab Christmas Day Bomber Maj. Nidal Hasan Ft. Hood “… terrorist number one.” - Rep. Jane Harmon (D-CA) House Permanent Select Committee on Intelligence 9/11 Report ties him to two of the hijackers of American Airline Flight 77 Faisal Shahzad Time Square Bomber

33. Al-Aulaqi  v. Obama[filed 30 August 2010] The central theme to the case is that al-Aulaqi is hiding in Yemen, which is “far from any field of armed conflict.” Indeed, the language “outside of armed conflict” is used at least a dozen times in 11 pages. The Complaint says: “The United States is not at war with Yemen, or within it.”

34. Is the United States engaged in a “war” or “armed conflict” with al Qaeda and its allies? Fundamental Question

35. Is the United States engaged in a “war” or “armed conflict” with al Qaeda and its allies? Fundamental Question Who has authority to make that decision? • The UN Security Council? • NATO • Congress • The President • The U.S. Supreme Court

36. Is the United States engaged in a “war” or “armed conflict” with al Qaeda and its allies? Fundamental Question Who has authority to make that decision? . . . or is it the • The UN Security Council? • NATO • Congress • The President • The U.S. Supreme Court

37. America is at warand may legally detain enemy combatants for the duration of hostilities The UN Security Council recognized this is an Armed Conflict. Security Council Resolution 1373 (Sept. 12, 2001) Unanimously declared that the 9/11 attacks constituted “a threat to international peace and security” and reaffirmed “the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations . . . .” • AUMF 18 Sept. 2001 Public Law 107-40 [S.J. Res. 23] Congress authorized the use of military force under the War Powers Resolution; • Both PresidentsBush and Obama have repeatedly confirmed American is at “war.” • Supreme Court has said LOAC applies (Hamdi, Hamdan) and it is lawful to detain enemy combatants without trial for the duration of the conflict.

38. UN Security Council Resolution 1368 Sept. 12, 2001 “The Security Council, Reaffirming the principles and purposes of the Charter of the United Nations, Determined to combat by all means threats to international peace and security caused by terrorist acts, Recognizing the inherent right of individual or collective self-defence in accordance with the Charter . . . .

39. UN Security Council Resolution 1368 Sept. 12, 2001 “The Security Council, Reaffirming the principles and purposes of the Charter of the United Nations, Determined to combat by all means threats to international peace and security caused by terrorist acts, Recognizing the inherent right of individual or collective self-defence in accordance with the Charter . . . . ARTICLE 51 “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” What does the UN Charter actually say about the right of “individual and collective self-defence?”

40. UN Security Council Resolution 1368 Sept. 12, 2001 “The Security Council, Reaffirming the principles and purposes of the Charter of the United Nations, Determined to combat by all means threats to international peace and security caused by terrorist acts, Recognizing the inherent right of individual or collective self-defence in accordance with the Charter . . . . ARTICLE 51 “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”

41. UN Security Council Resolution 1368 Sept. 12, 2001 “if an armed attack occurs” “The Security Council, Reaffirming the principles and purposes of the Charter of the United Nations, Determined to combat by all means threats to international peace and security caused by terrorist acts, Recognizing the inherent right of individual or collective self-defence in accordance with the Charter . . . . ARTICLE 51 “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”

42. UN Security Council Resolution 1368 Sept. 12, 2001 In Resolution 1373 (28 Sept. 2001), the Security Council declared that the 9/11 attacks “constitute a threat to international peace and security,” and reaffirmed “the inherent right of individual or collective self-defence as . . . recognized by the Charter of the United Nations . . . .” “The Security Council, Reaffirming the principles and purposes of the Charter of the United Nations, Determined to combat by all means threats to international peace and security caused by terrorist acts, Recognizing the inherent right of individual or collective self-defence in accordance with the Charter . . . . This is language of the Law of Armed Conflict, not law enforcement.

43. UN Security Council Resolution 1368 Sept. 12, 2001 In Resolution 1373 (28 Sept. 2001), the Security Council declared that all acts of international terrorism “constitute a threat to international peace and security,” and reaffirmed “the inherent right of individual or collective self-defence as . . . recognized by the Charter of the United Nations . . . .” “The Security Council, Reaffirming the principles and purposes of the Charter of the United Nations, Determined to combat by all means threats to international peace and security caused by terrorist acts, Recognizing the inherent right of individual or collective self-defence in accordance with the Charter . . . . This is language of the Law of Armed Conflict, not “law enforcement.” This is language of the Law of Armed Conflict, not law enforcement.

44. America is at warand may legally detain enemy combatants for the duration of hostilities Security Council Resolution 1373 (Sept. 12, 2001) Unanimously declared that the 9/11 attacks constituted “a threat to international peace and security” and reaffirmed “the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations . . . .” THIS WAS THE LANGUAGE OF ARMED CONFLICT AND NOT LAW ENFORCEMENT. Also on September 12, 2001, the North Atlantic Council formally invoked Article 5 of the NATO Treaty, which provides: “The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all . . . .” • AUMF 18 Sept. 2001 Public Law 107-40 [S.J. Res. 23] Congress authorized the use of military force under the War Powers Resolution; • Both PresidentsBush and Obama have repeatedly confirmed American is at “war.” • Supreme Court has said LOAC applies (Hamdi, Hamdan) and it is lawful to detain enemy combatants without trial for the duration of the conflict.

45. America is at warand may legally detain enemy combatants for the duration of hostilities Security Council Resolution 1373 (Sept. 12, 2001) Unanimously declared that the 9/11 attacks constituted “a threat to international peace and security” and reaffirmed “the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations . . . .” THIS WAS THE LANGUAGE OF ARMED CONFLICT AND NOT LAW ENFORCEMENT. Also on September 12, 2001, the North Atlantic Council formally invoked Article 5 of the NATO Treaty, which provides: “The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all . . . .” • AUMF 18 Sept. 2001 Public Law 107-40 [S.J. Res. 23] Congress authorized the use of military force under the War Powers Resolution; • Both PresidentsBush and Obama have repeatedly confirmed American is at “war.” • Supreme Court has said LOAC applies (Hamdi, Hamdan) and it is lawful to detain enemy combatants without trial for the duration of the conflict. Once again, language of the Law of Armed Conflict and not “law enforcement.”

46. Congress Has FormallyAuthorized the Use of Military Force

47. Authorization for Use of Military ForceSeptember 18, 2001 • Public Law 107-40 [S. J. RES. 23] “SEC. 2. . . . [T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

48. Authorization for Use of Military ForceSeptember 18, 2001 • Public Law 107-40 [S. J. RES. 23] “SEC. 2. . . . [T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” The combined vote was 518-1

49. The President (both Bush and Obama) has recognized America is at “War”

50. America is at war and may legally detain enemy combatants for the duration of hostilities On September the 11th, enemies of freedom committed an act of war against our country. -President Bush Sept. 20, 2001 • UNSC Res 1368 affirmed the right of ‘self-defence” (language of armed conflict); • NATO declared this was an “armed attack” under Article 5 of the treaty; • Public Law 107-40 [S. J. RES. 23] Congress authorized the use of military force under the War Powers Resolution; • Both Bush and Obama administrations have said we are in a “war.” • Supreme Court has said LOAC applies (Hamdi, Hamdan) This is not the “War on Poverty.”