Ayman al-Zawahiri

In the culmination of a manhunt that lasted almost 21 years, the U.S. government appears to have located and killed Ayman al Zawahiri.

And so, until recently, there would have been little doubt that a drone strike in Afghanistan would be analyzed through the law of armed conflict lens. But now the United States has withdrawn its armed forces from Afghanistan, and thus the argument for applying the law of armed conflict to the use of force there now must rest on the same grounds as when the United States periodically does the same in, say, Somalia. That is, the argument rests on the more-general claim that the armed conflict with al-Qaeda continues to exist and continues to be global in its scope (albeit subject to U.N. Charter limitations in practical terms, as mentioned above). For starters, that prohibition is not specific to the CIA; it applies to all U.S. personnel of whatever agency, and for that matter to others acting at the behest of the United States. But more importantly: the longstanding position of the U.S. government is that it is not an assassination to use lethal force either in the context of armed conflict or otherwise when acting in self-defense in response to a threat to American lives. Through most of that time, however, the situation with respect to operations in Afghanistan was common ground: almost everyone agreed that there was an armed conflict there. The U.S. position has long been that the law of armed conflict framework applies wherever U.S.-al-Qaeda interactions occur, rather than just in particular geographic zones. But all of this matters only if the law of armed conflict still governs the U.S.-al-Qaeda relationship. How about the fact that the strike apparently was not carried out by the U.S. military, and thus almost certainly was conducted by the CIA as a Title 50 Covert Action? Nothing new about that; for nearly two decades the CIA has had authority to use lethal force for at least some counterterrorism operations, and whatever the policy merits of that institutional decision there is no serious legal argument that the CIA somehow is precluded from carrying out such strikes. From a U.S. legal perspective, the core question in a case like this (involving the use of lethal force against a non-U.S. person outside the United States) involves the authority of the Biden administration to conduct the strike. The clearest part of the analysis involves proportionality: the precision of the strike plainly complied with the principle of proportionality, showing a remarkable degree of concern for the welfare of bystanders. In the face of all this, and with considerable success in dismantling al-Qaeda over the years, it is no wonder that the “war on terrorism” began to seem… Notwithstanding the changes described above, this administration continues to maintain (like the Bush, Obama, and Trump administrations before it) that the 2001 Authorization for Use of Military Force remains operative, meaning that the only important questions from a separation-of-powers perspective are whether the AUMF applies to the organization in question and whether the individual involved is relevantly-connected to that organization. What follows is a roadmap to some of the key questions I assume they considered, and projections of how they likely analyzed them.