Obama's Speech Exposed A 'Fatal Flaw' Of The Drone War
The idea that al-Qaeda is now more idea than organization, however, derails the administration's justification for targeting al-Qaeda members anywhere in the world, according to Kevin Jon Heller of Opinio Juris.
The Department of Justice White Paper on the targeted killing of U.S. citizens argues that the U.S. is in a non-international armed conflict (NIAC) with "al-Qaeda and its associated forces.”
Using internationally-accepted Tadic test to identify armed conflicts, the paper argues that any U.S. operation against al-Qaeda and its associated forces — "even if it were to take place away from the zone of active hostilities" — is part of this conflict.
Heller notes that although the "global conflict" argument is valid in principle, there is a fatal flaw in the administration's argument: the White Paper "completely ignores" the organization requirement of the Tadic test.
For various groups that call themselves Al-Qaeda or associate themselves with the group to qualify as a single party, "they must – at a minimum – share a common command structure. ... different terrorist groups cannot be considered one organization simply because they share the same ideology."
Hellet highlights the fact that "even the U.S. government rejects the idea that [Al-Qaeda] is a unified organization" since it divides al-Qaeda into three tiers: (1) core al-Qaeda; (2) “small groups who have some ties to an established terrorist organization, but are largely self-directed”; and (3) “homegrown extremists’ who ‘have no formal affiliation with al Qaeda, but… are inspired by its message of violence.”
From Opinio Juris:
If those terrorist groups do not form a single organized armed group, there can be no single NIAC between the US and “al-Qa’ida and its associated forces.” And if there is no single NIAC between the United States and “al-Qa’ida and its associated forces,” the US cannot — by its own standards — justify targeting anyone who is a “senior operational commander” in one of those groups simply by citing the existence of the hostilities between the US and al-Qai’da in Afghanistan.
Consequently, Heller concludes that "the White Paper authorizes the use of lethal force against individuals whose targeting is, without more, prohibited by international law."