WASHINGTON — The Obama administration’s 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-Qaida and its allies, according to administration and congressional officials.
The debate, according to officials familiar with the deliberations, centers on whether the United States may take aim at a handful of high-level leaders of militant groups who are personally linked to plots to attack the United States or whether it may also attack the thousands of low-level foot soldiers focused on parochial concerns: controlling the essentially ungoverned lands near the Gulf of Aden, which separates the countries.
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 focus on “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-Qaida in the Arabian Peninsula, based in Yemen, and the Somalia-based al-Shabab.
The answer could lay the groundwork for a shift in the fight against terrorists as the original al-Qaida, operating out of Afghanistan and Pakistan, grows weaker. That organization has 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 U.S. forces in adjoining Afghanistan is not disputed inside the administration.
One senior official played down the disagreement Thursday, characterizing it as a difference in policy emphasis, not legal views. Defense Department lawyers are trying to maintain maximum theoretical flexibility, while State Department lawyers are trying to reach out to European allies who think that there is no armed conflict, for legal purposes, outside of Afghanistan, and that the United States has a right to take action elsewhere only in self-defense, the official said.
But other officials insisted that the administration lawyers disagreed on the underlying legal authority of the United States to carry out such strikes.
Robert Chesney, a law professor at the University of Texas, Austin, who specializes in the laws of war, said the dispute reflected widespread disagreement about how to apply rules written for traditional wars to a conflict against a splintered network of terrorists — and fears that it could lead to an unending and unconstrained “global” war.