U.S. enters murky legal ground with strike in Yemen

W By Esther Schrader and Henry Weinstein

wASHINGTON – In striking a close associate of Osama bin Laden dead in Yemen, the Bush administration has entered a murky area of international law and demonstrated it will use more aggressive and controversial tactics to defend American interests abroad than the U.S. has historically employed.

When a Hellfire laser-guided missile screamed out of an unmanned Predator drone and straight into a car carrying Qaed Sinan Harithi on Sunday, the United States may have violated international law, or maybe not. The answer depends on whether the Yemeni government acceded to the strike, international law experts said Monday.

But the attack clearly placed the Bush administration outside the bounds of actions previous U.S. administrations have acknowledged taking to defend American interests overseas.

“Where we have refrained from doing this in the past, it’s been the judgment of the U.S. that killing our enemies abroad is a very foolish thing to do,” said Alfred P. Rubin, a former Pentagon counsel and a professor of law and diplomacy at Tufts University.

“After all, the Soviets killed their enemies abroad, and the Iranians have tried to do the same thing against (author) Salman Rushdie. We decided a long time ago that this was not a wise thing to do. It was not consistent with our vision of where the world should be going. But now we apparently have changed our minds.”

Since the Sept. 11 attacks, blamed on bin Laden’s al-Qaida network, the Bush administration has steadfastly argued that the United States is at war with the terrorist group, wherever its tentacles reach.

However, the United Nations charter forbids intervention in the internal affairs of another country with which a nation is not at war. So unless Yemen agreed to the strike, the United States acted in violation of the U.N. charter.

Defense Secretary Donald H. Rumsfeld said Monday that Yemen has been acting in close cooperation with the United States in the war on terrorism, but did not say whether the Yemeni government was aware of and had permitted Sunday’s strike.

Beyond the question of Yemeni involvement lies the deeper question of defining war. The Bush administration says that it is engaged in a worldwide war against terrorists that is far more than rhetorical, and that it views attacks on suspected terrorists as military strikes against combatants.

“It shows they are not looking at this in a law enforcement context but in a military one. And in a military conflict, you shoot to kill the enemy,” said Suzanne Spaulding, former executive director of the National Commission on Terrorism, a former lawyer for both the CIA and the Senate Intelligence Committee, and chair of the American Bar Association’s standing committee on law and national security.

Robert K. Goldman, a professor of international law at American University’s Washington College of Law, said the situation presents a new paradigm because most of the laws that have evolved about war involve hostilities between countries.

“If you assume the U.S. can be at war against nonstate actors,” Goldman said, members of al-Qaida “are combatants who are susceptible to direct attack at all times.”

“The basic premise is that the U.S. regards itself as at war with al-Qaida. That being the case, it regards members of al-Qaida as combatants engaged in war against the U.S.”

But the United States is not at war with Yemen. In seeking out and killing its avowed enemies anywhere it finds them, without arresting, charging and trying them first, critics of such a strike say it mirrors the “extra-judicial executions” that have been used by the Israeli government in response to terrorist attacks.

“If we go down this path, we might find ourselves in the same position that Israel is in,” Rubin said. “We can target terrorists too if we like. But I don’t think it’s brought very much peace to the Middle East, and I don’t think it’s going to bring very much peace to the U.S. either.”

While some may consider the attack in Yemen an assassination, Goldman said it was different from U.S. attempts decades ago to kill foreign leaders. Those led President Ford to promulgate an executive order prohibiting political assassinations; it has been in force since 1976.

“This is not an assassination. The U.S. is not in a situation of peace with these people. This is not putting poison into Castro’s toothpaste,” Goldman said. “My view is the administration has a strong argument based on the doctrine of self-defense and the continuing threat from al-Qaida.”

M. Cherif Bassiouni, professor of international law at DePaul University in Chicago, who headed the U.N. Security Commission investigating war crimes in the former Yugoslavia, said the most appropriate comparison would be if a U.S. drug agent “wasted” a narcotics trafficker rather than arresting him and putting him on trial.

Bassiouni said that any living relatives of those killed might be able to sue U.S. officials who approved or participated in the attack under the Alien Tort Claims Act. He said the CIA could not be sued as an entity because it has governmental immunity.

The attack “is a dangerous precedent,” Bassiouni said. “The biggest danger is something that is intangible. It suddenly puts governments at the same level as terrorists. If we come down from the moral heights and start wallowing in the same mud as the terrorists, we have lost our legitimacy and we can no longer marshal the claim of moral authority for us and immorality for them.”

In recent years, the United States has attacked targets in countries that it was not at war with, although such strikes apparently did not target specific individuals. In 1998, for instance, the Clinton administration used cruise missiles to destroy a pharmaceutical factory in Sudan that it claimed was involved in chemical-weapons production.

Although military lawyers have taken on an increasingly prominent role in vetting U.S. strikes on a range of targets, it is unclear what role they may have played in Sunday’s attack in Yemen. In previous cases, the United States has refrained from killing individuals on the advice of lawyers.

For instance, in October 2001, a Predator drone targeted Taliban leader Mullah Mohammed Omar at the start of the war on Afghanistan, but military lawyers could not decide whether he could be struck, officials have said. Its missiles were ultimately fired near him, but not to kill him.

In May, a CIA Predator attacked Afghan warlord Gulbuddin Hekmatyar near Kabul, missing him but killing some followers. Hekmatyar had offered rewards for anyone who killed U.S. troops. The former Afghan prime minister is said by U.S. counterterrorism officials to be loosely associated with al-Qaida.