12 November 2022
“Religious liberty is an international problem…and as I think back I also think ahead, and I wonder what historians may say centuries from now about the contribution of the United States to World Civilization?”
U.S. Supreme Court Justice Samuel Alito, 2022 Notre Dame Religious Liberty Summit in Rome, 21 July 2022.
"انت فين والحب فين"
ام كلثوم
“I would purge my language of hyperbole; of its eagerness to analyze the levels of wickedness; ranking them; calculating their higher or lower status among others of its kind.”
Tony Morrison, “The Dead of September 11”, Vanity Fair, November 2011.
“The phrase and the agenda that grew out of it caught on, and from 9/11 onward, the administration used its pulpit to propagate several new premises.”
Samantha Power, “Our War on Terror”, New York Times, 29 July 2007.
“If 9/11 was indeed the onset of World War III, we have to understand what this war is about. We're not fighting to eradicate ‘terrorism.' Terrorism is just a tool. We're fighting to defeat an ideology: religious totalitarianism.”
Thomas Friedman, “The Real War: The Generals Don’t Wear Stars”, New York Times, 27 November 2001. (emphasis added – MD).
“Panic in the face of danger is an understandable human response…Yet, his key proposals are disconnected from real politics.”
Martha Minow, 2006.[1]
“On September 11, 2001, 19 men armed with knives, box-cutters, mace, and pepper spray penetrated the defences of the most powerful nation in the world. They inflicted unbearable trauma on our people and turned the international order upside down. We ask each of you to remember how you felt that day—the grief, the enormous sense of loss. We also came together that day as a nation—young and old, rich and poor, Republicans and Democrats. We all had a deep sense of hurt. We also had a deep sense of purpose. We knew what we had to do, as a nation, to respond. And we did.
…
As we detail in our report this was…above all, a failure of imagination.”
Public Statement Release of 9/11 Commission Report, The Hon. Thomas H. Kean and the Hon. Lee H. Hamilton, July 22, 2004.
“There is no plan…As always, protect yourselves, watch each other’s backs.”
World Trade Center film, 2006.[2]
“Guantanamo had been selected over other possibilities…because the administration wanted a place that would be ‘the legal equivalent of outer space’”
Lisa Hajjar, The War in Court: Inside the Long Fight against Torture (University of California Press, 2022), p.32.
Introduction
On 1 August 2022 American President Joe Biden announced the killing of Ayman Al-Zawaheri in Kabul, Afghanistan. He was a leading ideological figure in Al-Qaeda organization that operated in some impoverished countries. The U.S. government attributed to this organization the execution of the 11 September 2001 attacks in New York, Pennsylvania, and at the Pentagon, as well as other attacks such as the bombing of the U.S. embassy in Kenya in 1998.[3] Although initially blamed on Muslim perpetrators,[4] the 1995 Oklahoma City Bombing was carried out by others.[5]
Insisting to reproduce his country’s political mythology, raising few eyebrows, instigating yawning and shocking none Biden claimed stutteringly that the distant victim of his order to kill who occupied a distinct technological space was “deeply involved in the planning of the 9/11 attacks”. The purpose of this essay is to demonstrate the illegality of killing Mr. Al-Zawaheri, irrespective of 9/11 attacks’ true nature.[6]
From an international law perspective, the illegality of Biden’s order to kill is glaring. Al—Zawaheri posed no real or imminent danger to the United States. The paramilitary strike executed by the CIA in a distant country is not an act of self-defense. As a civilian member of an alleged armed group, Al-Zawaheri was not taking direct part in hostilities. The American kill has no foundation in international law.
Although America’s post 9/11 “war on terror” had lost much of its captivating allure domestically and internationally the quest for counter-terrorism activity by the American military establishment and the CIA continued. Two mysterious and heinous explosions in Afghanistan carried out during the unstable withdrawal of American forces from the country reinvigorated the anti-terrorism fever.[7]
Killing Ayman Al-Zawaheri
Triumphantly obscure Biden declared after killing Al-Zawaheri:
Now justice has been delivered and this terrorist leader is no more. We make it clear again tonight. No matter how long it takes, no matter where you hide, if you are a threat to our people, the United States will find you and take you out.[8]
American intelligence agencies, particularly the CIA, tracked Al-Zawaher in Afghanistan for months. CIA’s Director William Burns advised Biden to carry out the illegal killing of a remote and unthreatening individual. According to the New York Times:
American agencies tracked down al-Zawaheri in Kabul earlier this year and then spent months determining that it really was him hiding out in a house in a crowded section of the Afghan capital. After receiving authorization from Mr. Biden a week ago, the C.I.A. fired two Hellfire missiles and killed al-Zawaheri on a balcony of the house…[9]
CBS’s Norah O’Donnel revealed that CIA’s Director Burns approached Biden in July 2022 and obtained his approval to kill Al-Zawaheri. Burns stated during the interview with O’Donnel that he felt a measure of justice had been realized because of this para-military operation.[10]
Structurally, the CIA is a civilian organization that conducts paramilitary activities outside the confines of the American military. It is subject to the authority of the American president pursuant to articles 104A(a) and (b) of the 1947 National Security Act. The CIA’s budget is part of classified governmental funding to America’s intelligence agencies.[11]Its paramilitary activities in Afghanistan have been more than controversial.[12] In 2012 CIA’s General Counsel Stephen Preston claimed during a lecture at Harvard Law School that the organization is committed to the rule of law.[13] Its always covert and destructive role is well understood in American political and diplomatic circles, receiving constant documentation and representation in the country’s dominant cultural performances.[14]The known activities of the CIA are captured by international law.
Illegality of Ayman Al-Zawaheri’s Killing
Use of force by states in their international behavior is limited to an act of self-defense pursuant to article 51 of the United Nations Charter. Targeting of individual civilians allegedly members of a purported non-state armed group is not prohibited if the individual is directly participating in hostilities and for that duration only.
Despite an American doctrinal attempt to expand the notion of self-defense in light of the 9/11 attacks, the overwhelming consensus remains that applying the use of force under this paradigm requires to demonstrate necessity and proportionality:
But the vast majority of other states remained firmly attached to a narrow conception of self-defense. This long-standing disagreement between states on interpretation of the UN Charter seemed beyond resolution, and states accordingly sought to avoid doctrinal dispute by appealing to doctrines, such as necessity and proportionality, on which there was universal agreement where at all possible. It is likely that this approach will survive the impact of 9/11.[15]
No necessity was present, nor proportionality applied by the killing of Al-Zawaheri who was faced only with the lethal option. He posed no immediate danger to the United States from Kabul, Afghanistan. The question of proportionality is moot and not triggered because the necessity requirement has not been met. In any event, no attempts were made to resort to a less lethal option given the capabilities of the American military and C.I.A. and the nature of the targeted person. This analysis is valid if indeed Al-Qaeda performed the 9/11 attacks. It is only solidified if someone else bring about the heinous and coordinated attacks in three locations in the United States, including at the Pentagon.
Al-Zawaheris is considered a civilian member of Al-Qaeda organization, one that has provided it with ideological inspiration, not tactical or strategic combat advice. Further, there is no evidence that shortly before and until his killing he was directly involved in hostilities against American forces. The statements of both American President Biden and CIA’s Director Burns recalled the 9/11 attacks as the reason for his elimination.
Al-Zawaheri enjoyed therefore international law’s protection of immunity from attack as a civilian. Targeting Al-Zawaheri and killing him in the process is a gross violation of international law by the American president Biden, CIA’s Director Burns, and the actual CIA official who launched the missiles that caused the death.[16]
Biden’s order to kill Al-Zawaheri based on Burns’s advice, and its execution amounts to an assassination banned by international law and American regulations.[17] It is yet another serious American international crime that ought to be documented, investigated, and prosecuted.
American President Biden and CIA's Director Burns. Source: CNN.
[1] The Emergency Constitution in the Post-September 11 World Order: The Constitution as Black Box During National Emergencies: Comment on Bruce Ackerman’s Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism”, 75 Fordham Law Review, pp.593, 597 (2006).
[2] See also Zero Dark Thirty film, 2012 (“There is just us…do you really believe this story, Usama Bin Laden?”).
[3] The bombing of the U.S. embassy in Kenya, recalls a similar one in Beirut, Lebanon detonated in 1983. Watching and listening to American President Ronald Reagan talk about this bombing, it is difficult not to conclude who actually committed this atrocity: (112) President Reagan’s Radio Address to the Nation on the Bombing of the US Embassy on April 23, 1983 - YouTube
[4] See, for example, Larry Stammer et al, “American Muslims Feel Sting of Accusations in Bombings Wake”, Los Angeles Times, 22 April 1995. See also Adam Liptak, “Supreme Court Sides with F.B.I. in Case on Spying on Muslims”, New York Times, 4 March 2022.
[5] See F.B.I., Oklahoma City Bombing, Oklahoma City Bombing — FBI. See also F.B.I., Wall Street Bombing 1920, Wall Street Bombing 1920 — FBI
[6] See Carol Rosenberg, “U.S. Releases Guantanamo’s Oldest Prisoner”, New York Times, 29 October 2022 (“The United States has released the U.S. military’s oldest prisoner of the war on terror, a 75-year-old businessman who was held for nearly two decades as a suspected sympathizer of Al Qaeda but was never charged with a crime.”); Carol Rosenberg, “Trial Guide: The Sept. 11 Case at Guantanamo Bay”, New York Times, 11 October 2022 (“The defendants are accused of directing or training the hijackers or helping provide them money or assistance with travel. They were captured in 2002 and 2003, held incommunicado in a secret C.I.A. prison network and transferred to Guantánamo in September 2006 for trial.”); Carol Rosenberg, “Sept. 11 Case Awaits Biden Administration’s Reply on Plea Deal”, New York Times, 23 October 2022 (“The judge did not describe the issues that are being discussed. But people with knowledge of the negotiations have said the defense is seeking a pledge from the government that Khalid Shaikh Mohammed, who is accused of masterminding the attacks, and the others will not be held in solitary confinement. The men, who were secretly held for three and four years in C.I.A. “black site” prisons, have also asked the government to establish a civilian torture treatment program for them.”).
[7] Mark Mazzeti et al, “Amid Afghan Chaos, C.I.A. Mission That Will Persist for Years”, New York Times, 27 August 2021. Biden’s National Security Adviser Jake Sullivan’s statement on another mysterious bombing, this time in Somalia dated 30 October 2022, failed to shock American observers. The bombing killed many and seemed to target the Somali Minister of Education: Statement by National Security Advisor Jake Sullivan on the Terrorist Attack in Somalia | The White House. Similar American apathy can be identified after the U.S. military’s declaration of a perpetrator-less and symbolic bombing of its base in Japan: Martin Pengelly, “Pentagon confirms explosion at Sagami US military depot in Japan”, The Guardian, 24 August 2015.
[8] Peter Baker et al, “The strike in Kabul was the first U.S. attack in Afghanistan since American forces left last year”, New York Times, 1 August 2022.
[9] Peter Baker et al, “The strike in Kabul was the first U.S. attack in Afghanistan since American forces left last year”, New York Times, 1 August 2022.
[10] CBS Sunday Morning, “Spy-craft on display: A museum of CIA secrets”, 2 October 2022 (starting at 05:48), Spycraft on display: A museum of CIA secrets - CBS News
[11] See “The Black Budget: Top secret U.S. intelligence funding”, Washington Post, 29 August 2013.
[12] Andrew Quilty, “The CIA’s Afghan Death Squads”, The Intercept, 18 December 2020; James Risen, “A War’s Epitaph”, The Intercept, 26 August 2021.
[13] Remarks of the Honorable Stephen Preston – General Counsel of the Central Intelligence Agency, “CIA and the Rule of Law”, Harvard Law School, 10 April 2012.
[14] Oliver Boyd Barret et al, Hollywood and the CIA: Cinema, Defense and Subversion (Routledge, 2011).
[15] Christine Gray, International Law and the Use of Force (Oxford University Press, 2008)(3rd ed.), p.166.
[16] See Nils Melzer, Direct Participation in Hostilities Under International Humanitarian Law (ICRC, 2009), pp.27-36; 41-68.
[17] See Matthew Spurlock, “The Assassination Ban and Targeted Killings”, Just Security, 5 November 2015. The American act also constitutes a violations of Afghanistan’s sovereignty and territorial integrity.
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