by Travis Normand

If you haven’t see the post that I re-blogged from Prof. Robert Chesney’s site, please take a look at it first.  The follow quote comes from his post.

U.S. Attorney Bharara said, “The pleas of these two avowed supporters of al Qaeda is a chilling reminder of the threat of homegrown terrorists and the unwavering vigilance that must be exercised so they can be thwarted – as they were in this case. It is also a reminder of the commitment that we share with our law enforcement partners to identify, prosecute and punish those who would do harm to the United States and its citizens.”

Beginning in 2007, El-Hanafi and Hasanoff conspired with others to support and receive assignments from al-Qaeda. In November 2007, Hasanoff received approximately $50,000 from a co-conspirator (CC-1), with the understanding that at least a portion of the money would be used to support the terrorist organization. In February 2008, El-Hanafi traveled to Yemen, where he met with two members of al-Qaeda. While in Yemen, El-Hanafi swore an oath of allegiance to al-Qaeda, received instructions from al-Qaeda on operational security measures, and received assignments to perform for al-Qaeda. Also while in Yemen, El-Hanafi instructed the members of al-Qaeda on how to communicate covertly over the Internet in a manner that would avoid law enforcement detection.

After El-Hanafi returned from Yemen, Hasanoff also swore allegiance to al-Qaeda. About three months later, in May 2008, El-Hanafi met with CC-1 in Brooklyn to discuss CC-1 also joining al-Qaeda, and Hasanoff and El-Hanafi subsequently had additional discussions with CC-1 about joining al-Qaeda. During the same approximate time period, El-Hanafi purchased a subscription for a software program that enabled him to communicate securely with others over the internet.

El-Hanafi and Hasanoff also helped finance the terror group by regularly sending money to al-Qaeda through international wire transfers and through couriers. El-Hanafi and Hasanoff also were interested in fighting with al-Qaeda in Afghanistan, Iraq and other locations abroad, and they discussed traveling to engage in jihad, although they never succeeded in participating in armed conflict.

After a  cursory reading of the article and opinion, I would say that El-Hanafi was a full member of al-Qaeda.  Therefore, while he may never have actually participated in a “fire fight,” he is still a party to the armed conflict that the US is currently involved in with al-Qaeda.  One must remember that the LOAC deals with status based targeting and not conduct based targeting.

With this view in mind, El-Hanafi would be a lawful military target no matter where he was found. While it is definitely possible for him to be arrested and prosecuted via the criminal justice system (as was done here); the real debate hovers around the issue of whether or not the US Military could have used deadly force against him as a measure of first resort.