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Airstrikes Outside Areas of Active Hostilities: Attacks in Somalia and Questions About the Current Shape of the Policy

Robert Chesney
Monday, March 7, 2016, 4:45 PM

Just this morning, I was thinking that things have been rather quiet with respect to media coverage of U.S. operations against AQ and AQ affiliates in places like Pakistan, Yemen, and Somalia. Well...

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Just this morning, I was thinking that things have been rather quiet with respect to media coverage of U.S. operations against AQ and AQ affiliates in places like Pakistan, Yemen, and Somalia. Well...

This Saturday, a variety of U.S. aircraft (some manned, some piloted remotely) converged on an al Shabaab training camp in Somalia (the "Raso" camp) and struck a large formation of men who were gathered in the open there, killing approximately 150 of them. According to the Pentagon, the men were "scheduled to depart the camp [and] posed an imminent threat to U.S. and African Union Mission in Somalia (AMISOM) forces in Somalia."

What to make of this? Most notably, it draws attention back to the Obama Administration's 2013 announcement that it followed a policy of sharply-limiting the use of lethal force outside of "areas of active hostilities" (and as the Washington Post reminds us today, Somalia supposedly is not an area of active hostilities). Specifically, the Administration in 2013 announced that it uses force in such locations only when the following conditions are met (italics and bold added by me):

Lethal force will be used only to prevent or stop attacks against U.S. persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively. In particular, lethal force will be used outside areas of active hostilities only when the following preconditions are met:

First, there must be a legal basis for using lethal force, whether it is against a senior operational leader of a terrorist organization or the forces that organization is using or intends to use to conduct terrorist attacks.

Second, the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons. It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not pose such a threat, the United States will not use lethal force.

Third, the following criteria must be met before lethal action may be taken:

  1. Near certainty that the terrorist target is present;

  2. Near certainty that non-combatants will not be injured or killed;

  3. An assessment that capture is not feasible at the time of the operation;

  4. An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and

  5. An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons.

Finally, whenever the United States uses force in foreign territories, international legal principles, including respect for sovereignty and the law of armed conflict, impose important constraints on the ability of the United States to act unilaterally – and on the way in which the United States can use force. The United States respects national sovereignty and international law.

Was Saturday's strike on the Raso camp consistent with this policy? Perhaps, but you do have to understand what the Administration meant, all along, by "continuing, imminent threat." Rather than meaning that harm is about to occur in a literal sense, in this context it means that there is a fleeting opportunity to carry out an airstrike against a person or group of persons whom the government thinks are certain to attack at some point down the road and there is no reason to think another and more timely window of opportunity will arise in the future. Some would say that is, by definition, not imminent. At any rate, this is an interpretation the Administration (and its predecessors) have long embraced, for better or worse.

The real bite of this policy, it seems, is suppposed to flow not from the "imminence" test but, instead, the separate requirement that the anticipated harm be directed at U.S. persons in particular. Saturday's airstrikes supposedly satisfied this standard because of risk to U.S. military forces deployed in Somalia. Perhaps there was strong intelligence to the effect that the Raso camp graduates were going to target those Americans; I'm in no position to judge this. That said, I wonder how much this particular factor really matters. We are told that AMISOM forces were targeted too, after all, and we have substantial reason to believe that this is a sufficient condition for U.S. airstrikes against al Shabaab targets, no matter what the 2013 policy seems to suggest. I say that because, just eight months ago, a similar set of airstrikes conducted by the United States were defended on the ground that AMISOM forces, alone, were endangered (see Ashley Deeks, here, and me here).

Perhaps it is time for an updated account of the policy framework? Note, in that respect, that the government apparently plans to disclose a redacted version of the classified Presidential Policy Guidance document that reportedly undergirds the policies described above, in connection with FOIA litigation brought by theACLU. When that document drops, it no doubt will generate loads of media coverage. It would be a shame if the effect of that coverage was to increase the perception that the policy works in one particular way when, in fact, it work in a slightly different way now.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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