http://atwar.blogs.nytimes.com/2012/02/22/pentagon-says-u-s-citizens-with-terrorism-ties-can-be-targeted-in-strikes/

February 22, 2012

Pentagon Says U.S. Citizens With Terrorism Ties Can Be Targeted in Strikes

By CHARLIE SAVAGE

WASHINGTON -- The Obama administration's top Pentagon lawyer on Wednesday said that American citizens who join Al Qaeda can be targeted for killing and that courts should have no role in reviewing executive branch decisions about whether someone has met such criteria.

"Belligerents who also happen to be U.S. citizens do not enjoy immunity where non-citizen belligerents are valid military objectives," said Jeh C. Johnson, the Defense Department general counsel, in a speech at Yale Law School.

Mr. Johnson's remarks offered an unusually comprehensive and public declaration of the Obama administration's national security legal policy views in the war against Al Qaeda and its allies. While the outlines of those views have been aired in pieces before, officials usually discuss such matters only on condition of anonymity.

In raising the targeted killing of an American citizen, Mr. Johnson emphasized that he was not talking about any particular operation. The administration has declined to discuss its killing last September of Anwar Al-Awlaki, a New Mexico-born radical Islamist cleric who died in a drone strike in Yemen that technically remains a covert operation.

Still, Mr. Johnson invoked a lawsuit filed by Mr. Awlaki's father before the killing that had sought an injunction against targeting his son, citing with approval a district judge's decision to dismiss the case and saying that targeting decisions are not suited to court review because they must be made quickly and based on fast-evolving intelligence.

"Within the executive branch the views and opinions of the lawyers on the president's national security team are debated and heavily scrutinized, and a legal review of the application of lethal force is the weightiest judgment a lawyer can make," he said. "And, when these judgments start to become easy, it is time for me to return to private law practice."

Mr. Johnson also emphasized that even though the conflict is against an unconventional force, the administration believes that it must apply conventional legal principles -- like the Geneva Conventions, international laws of armed conflict, and traditional ways of interpreting domestic wartime statutes -- in waging it.

Still, he described a broad interpretation of the authorization by Congress to use military force against the perpetrators of the Sept. 11, 2001, attacks, saying that nothing in that statute limited the ability to wage war against Al Qaeda and its allies to the so-called "hot" battlefield zone of Afghanistan.

"The legal point is important because, in fact, over the last 10 years Al Qaeda has not only become more decentralized, it has also, for the most part, migrated away from Afghanistan to other places where it can find safe haven," Mr. Johnson said.

Mr. Johnson explained that in deciding whether an armed Islamist group that is not part of Al Qaeda counts as an "associated force" -- meaning it is part of the war, so its members can be targeted or detained without trial -- the administration is using a two-part test: such a group must have aligned itself with Al Qaeda, and it must have specifically started fighting the United States and its allies.

"Thus, an 'associated force' is not any terrorist group in the world that merely embraces the Al Qaeda ideology," he said. "More is required before we draw the legal conclusion that the group fits within the statutory authorization for the use of military force passed by the Congress in 2001."

Mr. Johnson also told the Yale Law School audience that it was true that he had sometimes disagreed with the school's former dean, Harold Hongju Koh, who is now the top State Department lawyer. But he praised Mr. Koh and said it was a good thing that such lawyers were thrashing out difficult legal issues together rather than succumbing to "group think."

One of the disputes between Mr. Koh and Mr. Johnson, as reported last year by The Times, [1] was whether the United States' war against Al Qaeda extended to every member of the Islamist groups in Yemen and Somalia, or just to high-level leaders who were focused on attacking the United States rather than parochial concerns.

That dispute may have been partly settled earlier this month when a video surfaced [2] in which Ayman al-Zawahri -- who took over as Al Qaeda's leader after United States forces killed Osama bin Laden last year -- said that the Shabab, a militant Islamist group in Somalia, had formally joined Al Qaeda.

You can follow Charles Savage on Twitter at @charlie_savage.

[1] http://www.nytimes.com/2011/09/16/us/white-house-weighs-limits-of-terror-fight.html

[2] http://www.nytimes.com/2012/02/10/world/africa/somalia-rebels-join-al-qaeda.html