In his February 2012 remarks, DOD General Counsel Johnson said the AUMF remains the "bedrock" of the military's domestic legal authority, adding that it only covers the use of force against al-Qaeda and "associated forces," and not all terrorists. Notably, Johnson reaffirmed the administration's prerogative to kill targets "without a geographic limitation," including "belligerents who also happen to be U.S. citizens."
Speaking at Northwestern University in March 2012, Attorney General Holder elaborated on the targeting of U.S. citizens abroad (i.e., Anwar al-Awlaki), stating that such individuals may be killed by U.S. forces, but are still protected under the Fifth Amendment's Due Process Clause--albeit a consideration that "takes into account the realities of combat." Holder added that it would be lawful to target a U.S. citizen if the individual poses an imminent threat, capture is not feasible, and the operation would be executed in observance of applicable laws of war.
In yet another major policy speech one month later, White House Chief Counterterrorism Adviser Brennan specifically addressed the standards by which the administration authorizes lethal strikes on al-Qaeda outside Afghanistan. Steps in the process include: deciding if the target is a significant threat to U.S. interests; being cognizant of state sovereignty issues; having high confidence in the target's identity and that innocent civilians will not be harmed; and, finally, engaging in an additional review process if the individual is a U.S. citizen.
CFR's Matthew C. Waxman says the ongoing challenge for the Obama administration has been to balance several opposing imperatives: asserting broad war powers, while assuring critics that they are limited; justifying actions that remain covert; and promoting government transparency, while protecting sensitive intelligence programs.
Philip Alston, the former UN special rapporteur on extrajudicial, summary, or arbitrary executions, condemns the U.S. claims of self-defense as overly expansive, stating that "if other states were to claim the broad-based authority that the United States does, to kill people anywhere, anytime, the result would be chaos." Waxman says that while the strike on bin Laden would normally be a violation of state sovereignty, the U.S. government "is well within its rights" to use force on foreign soil without consent if there is an overriding necessity of self-defense.
CFR national security expert John B. Bellinger says the law is in need of a significant update. "The 2001 AUMF is more than ten years old now and getting a little long in the tooth--still tied to the use of force against the people who planned, committed, and or aided those involved in 9/11," he says. "The farther we get from [targeting] al-Qaeda [e.g., al-Shabaab in Somalia], the harder it is to squeeze [those operations] into the AUMF."
What Methods of Targeted Killing Does the United States Employ?
Targeted attacks launched from unmanned aerial vehicles, or drones, have ballooned under the Obama administration. A study undertaken by the New American Foundation reports that in his first two years of office, President Obama authorized nearly four times the number of strikes in Pakistan as President Bush did in his eight years. The report, which relies solely on media accounts of attacks, claims that some 291 strikes have been launched since 2009, killing somewhere between 1,299 and 2,264 militants, as of January 2013. Alternate reports also document the escalation in drone strikes in recent years, but the accounting of militant and civilian deaths can vary widely depending on the source.
Traditionally the CIA has managed the bulk of U.S. drone operations outside recognized war zones, such as in Pakistan, while the Defense Department (DOD) has commanded operations in established theaters of conflict, such as in Iraq, Afghanistan, and Libya. But in some instances, the drone operations of both the CIA and DOD are integrated, as in the covert drone campaign in Yemen.