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US Military’s Ambiguous Definition of a ‘Legitimate’ Target

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US Air Force personnel practice tactical operations for a MQ-1 Predator drone at Holloman Air Force Base in New Mexico, US // Photo Credit: US Air Force

Commentary by Gregory Johnsen

After three months of no official drone strikes in Yemen, the United States carried out its first strike of 2019 on New Year’s Day. Five days later, on January 6, President Donald Trump tweeted that the US had killed the target of that strike: Jamal al-Badawi, the “leader” of the attack on the USS Cole in 2000.

The US military quickly confirmed the strike, writing that: “Jamal al-Badawi was a legacy al-Qaeda operative in Yemen involved in the USS Cole bombing.” Indeed, in 2003 a US grand jury had indicted both al-Badawi and Fahd al-Quso for their role in the attack, which killed 17 US sailors. At the time, both men had recently escaped from a Yemeni prison, something al-Badawi would manage to pull off a second time in 2006. But while it was clear that Fahd al-Quso eventually rejoined what would become known as al-Qaeda in the Arabian Peninsula (AQAP) – he appeared in the group’s branded videos and spoke on behalf of AQAP – the public evidence for al-Badawi is less clear. (Fahd al-Quso was killed in a US drone strike in 2012.)

In 2007, al-Badawi turned himself in to Yemeni authorities in exchange for a loose house arrest. Then Yemeni President Ali Abdullah Saleh told a visiting US counterterrorism official not to worry. Al-Badawai, he said, is “under my microscope.” Saleh explained that al-Badawi had “promised to give up his terrorism and I told him that his actions damaged Yemen and its image; he began to understand.”

Washington was not impressed, and quickly cut off aid to Yemen, which forced Saleh to relent and, at least officially, re-arrest al-Badawi. In practice all this meant was that al-Badawi was summoned to the prison anytime a US delegation was scheduled to visit. As soon as the delegation was gone, al-Badawi was free to walk out the back door.

Still, it is this history as well as the fact that al-Badawi, unlike al-Quso, never publicly rejoined al-Qaeda that has raised questions about the January 1 strike. Was al-Badawi an active member of AQAP? Did he present an imminent threat to the US, or was this simply a retaliatory strike based solely on his involvement in the USS Cole attack?

On Twitter, Jack Goldsmith, a Harvard law professor and former head of the Office of Legal Counsel for George W. Bush’s administration, pointed to the military’s use of the phrase “legacy al-Qaeda operative.” If ‘legacy’ means ‘former’, he wrote, “then the strike would raise tricky issues under domestic and (international) law.”

Robert Chesney, a law professor at the University of Texas, suggested that the military may be using “legacy” to refer to “core” al-Qaeda as opposed to one of its franchises. But the truth, as is often the case with the US drone program, remains unclear.

The al-Badawi drone strike also raises another and perhaps even more important question. At a time when AQAP is gaining a significant number of local recruits, helped in part by Yemen’s multiple ongoing wars: Is it ever possible to leave the group? Or, to put it another way, in the eyes of the US, is it ‘once an al-Qaeda member always an al-Qaeda member?’

This has been an issue for the US in Yemen before, and it will be an issue again. In January 2017, shortly after taking office, President Trump authorized a Navy SEAL raid on a village in the Yakla region of Yemen. As a PBS documentary revealed last month, a single family, the al-Dhahab family, was at the center of that raid. Some members of the family belonged to al-Qaeda, some did not, and some claimed to have once belonged to the organization and since left. But which were which? Which bearded guy with a gun was a member of al-Qaeda and which was merely a tribesman defending his home? And in such a chaotic environment how is the US to determine who is, and who is not, a legitimate target?

The UN estimates that AQAP now numbers between 6,000 and 7,000 members, many of whom are local fighters who have joined up less out of a desire to be part of the global jihad than to combat one of the group’s many local enemies: Houthis, Hadi’s government, Saudi Arabia, and the UAE. Determining which of these recruits is a threat to US interests and which is not is a challenging task. But it is an essential one for the US in Yemen. Draw a narrow enough circle and the US can both pressure AQAP and limit civilian casualties, but create too broad a target list and the US will be carrying out drone strikes in Yemen for years to come.

Dr. Gregory D. Johnsen is a non-resident fellow at the Sana’a Center for Strategic Studies where he focuses on al-Qaeda, the Islamic State and armed groups in Yemen. Prior to joining the Sana’a Center, Dr. Johnsen served on the Panel of Experts on Yemen for the United Nation Security Council. He is the author of ‘The Last Refuge: Yemen, al-Qaeda, and America’s War in Arabia’.