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WASHINGTON The Obama administrations legal team is split over how much
latitude the United States has to kill Islamist militants in Yemen and Somalia, a
question that could define the limits of the war against Al Qaeda and its allies,
according to administration and Congressional officials.
The dispute over limits on the use of lethal force in the region whether from
drone strikes, cruise missiles or commando raids has divided the State
Department and the Pentagon for months, although to date it remains a merely
theoretical disagreement. Current administration policy is to attack only high-value
individuals in the region, as it has tried to do about a dozen times.
But the unresolved question is whether the administration can escalate attacks
if it wants to against rank-and-file members of Al Qaeda in the Arabian Peninsula,
based in Yemen, and the Somalia-based Shabab. The answer could lay the
groundwork for a shift in the fight against terrorists as the original Al Qaeda,
operating out of Afghanistan and Pakistan, grows weaker. That organization has
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been crippled by the killing of Osama bin Laden and by a fierce campaign of drone
strikes in the tribal regions of Pakistan, where the legal authority to attack militants
who are battling United States forces in adjoining Afghanistan is not disputed inside
the administration.
But other officials insisted that the administration lawyers disagreed on the
underlying legal authority of the United States to carry out such strikes.
Its a tangled mess because the law is unsettled, Professor Chesney said. Do
the rules vary from location to location? Does the armed conflict exist only in the
current combat zone, such as Afghanistan, or does it follow wherever participants
may go? Who counts as a party to the conflict? Theres a lot at stake in these
debates.
In Pakistan, the United States has struck at Al Qaeda in part through signature
strikes those that are aimed at killing clusters of people whose identities are not
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known, but who are deemed likely members of a militant group based on patterns
like training in terrorist camps. The dispute over targeting could affect whether that
tactic might someday be used in Yemen and Somalia, too.
The Defense Departments general counsel, Jeh C. Johnson, has argued that the
United States could significantly widen its targeting, officials said. His view, they
explained, is that if a group has aligned itself with Al Qaeda against Americans, the
United States can take aim at any of its combatants, especially in a country that is
unable or unwilling to suppress them.
The State Departments top lawyer, Harold H. Koh, has agreed that the armed
conflict with Al Qaeda is not limited to the battlefield theater of Afghanistan and
adjoining parts of Pakistan. But, officials say, he has also contended that
international law imposes additional constraints on the use of force elsewhere. To
kill people elsewhere, he has said, the United States must be able to justify the act as
necessary for its self-defense meaning it should focus only on individuals plotting
to attack the United States.
The fate of detainees at Guantnamo Bay, Cuba, hangs heavily over the targeting
debate, officials said. In several habeas corpus lawsuits, judges have approved the
detention of Qaeda suspects who were captured far from the Afghan battlefield, as
well as detainees who were deemed members of a force that was merely associated
with Al Qaeda. One part of the dispute is the extent to which rulings about detention
are relevant to the targeting law.
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authorize the use of force against a list of specific groups including the Shabab, as
well as set up a mechanism to add further groups to the list if they take certain overt
acts.
A version of this article appears in print on September 16, 2011, on Page A1 of the New York edition with
the headline: At White House, Weighing Limits Of Terror Fight.
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