by Kevin Jon Heller
As the Washington Post notes, the Obama administration has authorized the CIA to assassinate Aulaqi wherever he is found. It is very unlikely that CIA agents qualify as lawful combatants — they don’t distinguish themselves from the civilian population, they don’t carry their arms openly, etc. So, let’s assume that CIA agents manage to kill Aulaqi in Afghanistan. I assume everyone would be okay with Afghanistan capturing and prosecuting those agents for murder? They would have no combatant’s privilege, and “self-defense” would only (at best) prohibit Afghanistan from claiming that the US committed an internationally wrongful act.
Thoughts?