Let’s Call Killing al-Awlaki What It Is — Murder

by Kevin Jon Heller

The Obama administration has been savagely criticized for authorizing the CIA to use lethal force against Anwar al-Awlaki, a US citizen who is allegedly a member of al-Qaeda in Yemen.  Glenn Greewald, for example, has described the decision — justifiably — as “unbelievably Orwellian and tyrannical.”  To date, however, critics have ignored what I think is perhaps the most important point: An American who kills an American outside of the United States is guilty of murder.  Not political murder.  Not figurative murder.  Legal murder.

18 USC 1119:

(a) Definition.— In this section, “national of the United States” has the meaning stated in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(22)).

(b) Offense.— A person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113.

The foreign-murder statute has to be the starting point of any analysis of the Obama adminstration’s decision to authorize the CIA to kill al-Awlaki.  If the CIA does kill him — and even if it doesn’t; see below — any CIA operative involved in the killing who is American is presumptively a murderer.  The only questions would be (1) whether for some reason 18 USC 1119 would not apply, and (2) whether the CIA operative would have a plausible defense if he was charged with murder in federal court.

1. Does 18 USC 1119 Apply?

There are three possible arguments as to why the foreign-murder statute would not apply.  The first is that, if al-Awlaki were killed on the battlefield — i.e., during an armed conflict — US criminal law, including 18 USC 1119, would be displaced by international humanitarian law (IHL).  That might be the case, for example, if an American CIA operative killed al-Awlaki in Afghanistan, which qualifies as an international armed conflict.  Even in such a situation, however, IHL would protect a CIA operative only if he qualified as a lawful combatant.  If he qualified as a lawful combatant, he would possess a combatant’s privilege to kill.  But if he did not qualify as a lawful combatant, he would not be privileged to kill and killing al-Awlaki could be prosecuted in federal court under US criminal law — under 18 USC 1119 in particular.

Whether an American CIA operative would qualify as a lawful combatant in Afghanistan is a complex question.  I take it as a given that an operative who directly killed al-Awlaki, such as a CIA sniper, would not qualify as a lawful combatant.  I doubt many CIA field operatives carry their arms openly and distinguish themselves from the civilian population.  The more difficult situation would be one in which a CIA operative killed al-Awlaki remotely, using a drone.  Personally, I don’t believe the issue of whether someone qualifies as a lawful combatant depends upon the weapon he uses in combat. If the person who uses the weapon does not qualify as a lawful combatant, it should make no difference how high-tech his weapon is.  But I could be convinced otherwise.

This argument, of course, depends upon the assumption that al-Awlaki would be killed in the context of armed conflict.  If he was killed outside of an armed conflict — in Yemen, for example — IHL would not apply and thus would not displace US criminal law.  Which leads us to the second possible explanation of why 18 USC 1119 does not apply: because Obama has authorized the CIA to kill al-Awlaki.  That explanation seems implicit in much of the media’s coverage of the Obama administration’s decision; I have yet to see any reporter ask why Obama believes he has the legal authority to order Americans killed, given that 18 USC 1119 specifically criminalizes such killings.  The argument, however, is deeply problematic — and eerily reminiscent of debates over the Bush administration’s authorization of torture. The Bush administration argued that Bush had the authority as Commander-in-Chief to ignore the federal torture statute, 18 USC 2340; the Obama administration seems to now be arguing, albeit implicitly, that Obama has the authority as Commander-in-Chief to ignore the foreign-murder statute.  As Glenn constantly and rightly points out, progressives can’t have it both ways: if Bush could ignore the torture statute, Obama can ignore the foreign-murder statute; if Bush could not, Obama cannot.

There is, finally, a third possible argument, one that was recently made by the Center for American Progress: namely, that the Authorization to Use Military Force (AUMF) permits the CIA to kill al-Awlaki wherever he is found.  But that argument is no more convincing than the second argument: although Congress could repeal or amend 18 USC 1119, it cannot simply authorize the President to ignore the statute or authorize the CIA to violate it.  Again the torture analogy is apposite.  If the AUMF permits the President and the CIA to violate the foreign-murder statute, why did it not authorize the President and the CIA to violate the torture statute?  I don’t recall any progressive endorsing the latter argument, so why is a progressive organization like the Center for American Progress endorsing the same argument now?

2. Would a CIA Operative Have a Defense?

The bottom line is that there is only one situation in which an American CIA operative who used lethal force against al-Awlaki would not violate 18 USC 1119 — on the battlefield while qualifying as a lawful combatant. (And note that Obama’s authorization means nothing in this situation; lawful battefield killings cannot be prosecuted under US criminal law regardless of whether they are “authorized.”  Combatant’s privilege is an inherent and essential part of IHL.)  In every other situation, the CIA operative would be guilty of murder under the foreign-murder statute.  The only question would be whether he would have a defense to that crime.

There are, I think, three possibilities: self-defense, necessity, and mistake of law.  In terms of the first, we need to be careful not to elide the difference between “self-defense” as a justification for the use of force and “self-defense” as a criminal defense.   The former might permit the US to violate the sovereignty of the state in which al-Awlaki was killed by the CIA, which would otherwise be an act of aggression in violation of the UN Charter.  But it would not provide a CIA operative with a defense to murder in a criminal prosecution, just as “self-defense” does not provide a CIA interrogator — contra Yoo’s notorious 14 March 2003 torture memo — with a defense to torture.

To be clear, that does not mean a CIA operative could not argue self-defense in a murder prosecution.  The defense would apply — but it would be governed by the normal requirements, most relevantly that the operative must have reasonably believed that lethal force was necessary to prevent the imminent use of deadly force.  The CIA operative would thus likely be entitled to the defense of self-defense only if he killed al-Awlaki to prevent an imminent attack by al-Qaeda; the defense would not justify the operative killing al-Awlaki at any other time.

For similar reasons, it is unlikely that the CIA operative who killed al-Awlaki would be entitled to argue that the killing was necessary. To begin with, the Supreme Court has said that it is “an open question whether federal courts ever have authority to recognize a necessity defense not provided by statute.”  US v. Oakland Cannabis Buyers’ Coop, 532 U.S. 483, 490 (2001).  Moreover, even if they do, the necessity defense — like self-defense — requires a “clear and imminent danger,” which means that the CIA operative could only argue necessity if an attack by al-Qaeda was imminent.

Finally, it is possible that the CIA operative could argue mistake of law.  Federal courts recognize a mistake of law defense when a government official “misleads a party as to the state of the law and that party proceeds to act on the misrepresentation,” as long as the party’s reliance on the misrepresentation is reasonable.  United States v. Nichols, 21 F.3d 1016, 1018 (10th Cir. 1994).  The reasonableness requirement would be critical if a CIA operative argued in a murder prosection that he had relied on Obama’s misrepresentation that it was lawful for him use lethal force against al-Awlaki.  A jury may well buy the argument that his reliance was reasonable, but I do not think they should.  Given the plain language of 18 USC 1119 and the fact that none of the recent (post-1998) terrorism-based relaxations of Executive Order 12333 contemplated the assassination of US citizens, I do not think it is reasonable to believe that the President of the United States can order the execution of an American citizen abroad simply because he has unilaterally decided that the citizen is a terrorist.

Note also that those who authorized the CIA to kill al-Awlaki would be even less likely to have a legitimate mistake of law defense.  It is not simply criminal for an American to murder an American abroad.  It is equally criminal to solicit an American to murder an American abroad, to aid-and-abet an American to murder an American abroad, or to conspire with an American to murder an American abroad.  Obama and other high-ranking members of the administration involved in the decision to authorize al-Awlaki’s murder are thus potentially guilty of murder, as well.  Could Obama argue reasonable reliance on the OLC, which I presume has told him that he has legal right to authorize the CIA to kill al-Awlaki?  Perhaps, but I think the argument is much weaker for him than for the CIA operative who acts on Obama’s authorization.  And the OLC lawyers obviously could not rely on their own legal advice.

Finally, although I think it’s clear that a CIA operative who uses lethal force against al-Awlaki is guilty of legal murder, it is important to acknowledge that there is — at least now — an insuperable procedural hurdle to prosecuting that operative under the foreign-murder statute.  Here is 18 USC 1119(c)(1):

No prosecution may be instituted against any person under this section except upon the written approval of the Attorney General, the Deputy Attorney General, or an Assistant Attorney General, which function of approving prosecutions may not be delegated. No prosecution shall be approved if prosecution has been previously undertaken by a foreign country for the same conduct.

The Obama administration would never authorize the prosecution of a CIA operative who murdered al-Awlaki, much less one of its own lawyers or officials.  But who knows what the future will hold?  There is no statute of limitations for murder, so perhaps one day a genuine progressive will be elected President, someone who takes seriously the need to hold government officials accountable for their crimes — even those committed in the name of “fighting terrorism.”  In the interim, we need to constantly remind people that the criminal law is not optional, not something that can be cast aside every time the government decides it is too limiting.  And the best way to do that is to call the (potential) killing of al-Awlaki what it is — murder.

http://opiniojuris.org/2010/04/08/lets-call-killing-al-awlaki-what-it-is-murder/

17 Responses

  1. Say the Republicans take the House in the Nov. election.

    Has Obama, by authorizing the CIA to kill al-Awlaki, committed an impeachable offense, in your view?

  2. Hi Kevin, interesting post. I take your point about 18 USC 1119, but isn’t the proper analogy here not torture but detention? The Supreme Court in Hamdi upheld detentions of U.S. combatants as “enemies” notwithstanding a federal statute that seemed to forbid such detentions.  The Court did so on the basis of the AUMF, arguing that it provides a separate and independent legal authority for such detentions, subject to constitutional constraints.  If the U.S. can detain U.S. citizens as enemies, why can’t it kill them as well under the same theory?

    Also, couldn’t almost all of your problems be answered by getting the CIA out of the assassination business and turning it over the the military?
  3. Kevin,

    I think you have missed one possible defense, though you talk on issues related to it.  I am uncertain if it applies, but if the CIA agent is acting within some other lawful authority under domestic law, the conduct would be justified.  I do know that the U.S. Manual for Courts-Martial includes, among its defenses in R.C.M. 916:

    (c) Justification. A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful.

    It further provides, in the discussion to this defense, that:

    The duty may be imposed by statute, regulation, or order. For example, the use of force by a law enforcement officer when reasonably necessary in the proper execution of a lawful apprehension is justified because the duty to apprehend is imposed by lawful authority. Also, killing an enemy combatant in battle is justified.

    Note that nowhere is it expressly required that such acts be performed consistently with applicable international humanitarian law.  One hopes that the “proper performance of a legal duty” might require that.  It is simply not discussed.  I have not had time to research applicable case law, if any, to determine whether it clarifies the point.

    Nevertheless, the point remains that if there is lawful authority in domestic law, compliance with IHL is not required to justify the conduct for purposes of the statute you cite.  I am simply uncertain of the full extent of potentially relevant CIA authority.  The possibility of such authority in, shall we say, certain information unavailable to the general public may explain the procedural device that you reference.


  4. I don’t understand your take on the AUMF. An AUMF, by definition, authorizes killing. The AUMF in this case authorized “all necessary and appropriate force against those nations, organizations, or persons determined to have planned, authorized, committed, or aided the terrorist attacks”. Last I heard, Al Qaeda was the organization responsible for the attacks.
    Per this statement: “If the AUMF permits the President and the CIA to violate the foreign-murder statute, why did it not authorize the President and the CIA to violate the torture statute?”…I’m (obviously) not a lawyer, so I must be missing something because the answer seems self-evident to me. There are provisions that make killing legal in certain cases (combat, execution, ect), but torture is never legal (unless you count reality television).

  5. Liz,

    I don’t find Kevin’s take totally implausible.  A simple application of the Charming Betsy principle (stating that an act of Congress ought never be construed to violate the law of nations/international law unless no other construction remains) to the AUMF would require the killings and other acts it authorizes – such as interrogation – to be consistent with relevant international law.  This could include lawful combatant status requirements, and certainly prohibitions on torture.

    With that said, the CIA has statutory authority to engage in a wide range of covert activities, some of which may actually violate international or foreign laws (but not U.S. law if it is authorized by it).  The key to the issue raised by this post is whether the relevant CIA program/conduct is authorized by domestic law.

  6. A quick response to Liz — torture is only illegal under US criminal law because of the federal torture statute.  In the absence of the statute, federal courts could not prosecute torture.  An American killing an American abroad is only illegal under US criminal law because of the federal foreign-murder statute.  In the absence of the statute, federal courts could not prosecute foreign-murder.  So either the AUMF permits the executive to ignore both statutes or  neither of them.

    You are absolutely right, of course, that torture is always illegal under international law.  The US is a party to the Convention Against Torture, which reaffirms that fact.  But ratifying CAT did not, by itself, make torture criminal or punishable under domestic US criminal law; the US simply became obligated to “ensure that all acts of torture [we]re offences under its criminal law” (art. 4).  Enacting the federal torture statute was one of the ways that Congress fulfilled the US’s obligations under Article 4.

  7. John,

    With regard to your typically intelligent comment, the answer would depend on whether federal courts recognize an such a “legal duty” defense.  I don’t know the answer to that.  Even if they do, though, I doubt that it would justify the use of lethal force no matter what the circumstances.  The common-law “public authority” defense, for example, still requires that the person using deadly force to reasonably believe that a felony is in progress.  And as I said in the post, if al-Alawki was participating (or even was about to participate) in an attack by al-Qaeda, I believe that a CIA operative who killed him would, in fact, be entitled to claim self-defense (of others).  So I don’t believe there would ever be a situation in which a CIA operative would be able to claim public authority even though he could not claim self-defense.  But again, I’m speculating.

  8. Julian,

    We’re starting to wander outside of my expertise, but my sense is that the plurality based its holding that the AUMF justified Hamdi’s detention on the fact that he was captured in the context of an international armed conflict — a situation in which the US would have been entitled to detain a civilian directly participating in hostilities anyway.  As Justice O’Connor said,

    A citizen, no less than an alien, can be “part of or supporting forces hostile to the United States or coalition partners” and “engaged in an armed conflict against the United States”; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.

    In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of “necessary and appropriate force,” Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.

    As I said in the post, I have no quarrel with the idea that a privileged combatant could kill al-Alawki on the battlefield and not be subject to prosecution under 18 USC 1119.  I am more concerned with the right of a CIA operative to use lethal force in a situation in which IHL does not apply.  In that context, I do not think that Hamdi‘s analysis of the AUMF implies that the AUMF supercedes the foreign-murder statute.

  9. Anonster,

    To round things out, I don’t think we can consider the authorization a “high crime or misdemeanor” — at least yet.  As I said, there are situations in which it would be lawful to kill al-Alawki pursuant to Obama’s authorization.  So impeachment would have to await the CIA actually killing him, at which point we could determine whether Obama was complicit in a violation of 18 USC 1119.

  10. The Federal Foreign murder statute only allows the prosecution for the killing of an American citizen that falls within sections 1111-1113 of Title 18 – murder, manslaughter and attempted murder/manslaughter.

    The key word that you seem to be forgetting in the definition of murder:

    “Murder is the unlawful killing of a human being with malice aforethought.”

    It seems unlikely that the courts would read out the unlawful part of the definition of murder when interpreting 1119. (That would make negligent homicide abroad punishable as murder.) Therefore, other laws or doctrines could make the killing lawful.

    By contrast, torture is defined so that it almost cannot be lawful, since it requires the “color of law.”

    It seems that if the government puts its imprimatur upon a killing, it becomes lawful, and cannot be murder and cannot be prosecuted under 1119.

  11. Greg,

    “Unlawful” refers to a killing that is neither justified nor excused, so the analysis is exactly the same. The torture analogy actually supports my argument, because the definition of torture in 18 USC 2340(1) specifically provides that “pain or suffering incidental to lawful sanctions” cannot qualify. If “lawful sanctions” meant nothing more than the government approved the pain or suffering, the statute would be a nullity — especially as torture must be committed under “color of law,” i.e., with the complicity of the government.

  12. Many criminal theorists consider unlawful to mean not justified. A justified killing is not a crime, while an excused killing is a crime, but there is a condition of the defendant which makes imposing a punishment immoral. Self defense is a justification, while insanity is an excuse.

    But, it seems the difference in the way murder is defined versus torture implies that government can endorse killing in a general way (defining self-defense to include unreasonable belief of imminent harm, for example), making it lawful, while torture can only be imposed individually. Thus, the AUMF becomes a justification for the killing, but cannot for torture since there is no individualized lawful sanction.

  13. Kevin,

    This is interesting, thanks for posting it.  I’m going to take a stab at this discussion, noting up front that I haven’t fully thought through how to parse this statute and the other sections of the murder statute.  What may sound like conclusions below, are really more thoughts for discussion, so please read them with an eye towards viewing them as dialogue, not advocacy.   

    So, with that disclaimer out of the way, let me offer a few thoughts. 

    Regarding the discussion of Mens Rea, the Constitutionality of 1119 was challenged in U.S. v. White, 51 F. Supp 2d 1008 (E.D. Cal., 1997) and in the process mens rea was addressed.

    In White, the Defendant Sharonda White was accused of killing her 2 year old son in Okinawa.  The Japanese government declined to prosecute and White was sent to the U.S. and indicted, the indictment read in pertinent part: “[White] did with malice aforethought kill a two-year old child who was also a national of the United States of America while said nationals were outside the United States but within the jurisdiction of another country in violation of [Section 1119]“ 

    White’s challenge (one of a few) was that the statute was facially invalid due to a failure to require a mens rea element.  The court noted that  “[White argued] that the word ‘kill’ is unambiguous, Defendant asserts that the Court may not look beyond the plain meaning of the word to find a mens rea element.  Thus, because Section 1119 fails to require proof of criminal intent, Defendant argues that it unconstitutionally outlaws justifiable and excusable homicide as well as culpable homicide.”

    So, this is where it gets interesting for our purposes.  As the other Greg interpreted the statute (see above), so too did the Court in White, resolving the mens rea question by reference to the Murder and Manslaughter crimes as codified in Sections 1111 through 1113.  The court stated “In order to determine which punishment to apply to a violation of section 1119, the Court must necessarily determine whether the proven offense is murder, manslaughter or attempted manslaughter. Thus, the mens rea components contained in sections 1111 through 1113 apply to section 1119 by necessary implication.”

    So, that resolves our mens rea question –at least according to the White opinion, (which I recognize is just a District Court opinion, but it’s the only one to review these questions).  Applying the White court’s reasoning, 1119 requires proof beyond a reasonable doubt that:

    1) The Defendant
    2) Is a National of the U.S. who
    3) With Malice Aforethought, Kills
    4) A National of the U.S.
    5) Outside the U.S. but within the jurisdiction of another country

    Elements 1 and 2 in the CIA killing example seem rather uncontroversial.  Element 5 is a curious one, what location would be outside the U.S. but not within the JX. of another country?  International waters?   Space? 

    Element 4 is interesting too, what mental state is required?  This is not an uncontroversial issue, as it is one requiring proof and the mental state is silent.  I imagine a court would read this element to require knowledge.  Proof of which would come from the targeted killing list (e.g. the legal document authorizing the killing, noting he’s a U.S. person?)  Other sources of proof could include news stories and intelligence reports about al-Alwaki.  I imagine this won’t be hard to prove (it would definitely raise classified info issues), but a prosecutor would need to have some proof.  Moreover, if a court requires a purposeful mental state this poses another hurdle.  If the purpose is to kill a non-US citizen, say al-Alwaki’s Pakistani or Yemeni associate, merely knowing al-Alwaki will die won’t support a prosecution, it would need to be the CIA officer’s conscious object to kill al-Alwaki, and his purpose to bring about the death because he is a U.S. citizen.  So a higher mental state here, purpose, can rule out collateral killings. 

    Element 3, kills –with malice aforethought read into the statute per White– is really the most interesting element for us to parse.  We still have no idea if we are supposed to read “unlawful” from 1111 into the statute, in which case Element 3 would read as “with malice aforethought, unlawfully kills”.  That opens up a whole new discussion of the lawfulness of the killings, which Ken and others have addressed here and elsewhere. 

    Separately though, there is some historical precedent to support the proposition that malice aforethought has embedded within it the concept of unlawful killings and the exclusion of lawful or excused killings.  See here, summarized below. 

    Lord Mansfield noted that “Murder is where a man of sound sense, unlawfully killeth another of malice aforethought, either express or implied…” and malice aforethought must include the “intent to take life without excuse.”

    Also, in US v. Lewis 111 Federal 630 (bad citation, but it’s linked to above) it was noted that “Malice when attempted to be defined, has been necessarily given a more comprehensive meaning than enmity or illwill or revenge, and has been extended so as to include all those states of mind under which the killing of a person takes place without any cause which will in law justify or excuse or extenuate the homicide.” (emphasis mine).

    We also get some ancient interpretations, similar in nature here: “In Bromage v. Prosser, 4 Barn. & C. 255, it is said ‘Malice in common acceptation, means ill will against a person; but in its legal sense it meant a wrongful act done intentionally without just cause or excuse.”

    So, that’s all well and good and you can infer some of my conclusions from these precedents.  But I’m not certain I’ve fairly framed the issues and I can’t find a recent U.S. court interpretation that answers whether malice aforethought in 1111 should be read as it was read in those cases cited above.  Let’s say it doesn’t, and it merely refers to premeditation and deliberation.  In that case we might say that killing al-Alwaki pursuant to the CIA program is encouraging a violation of 1119.  But to so conclude, I think we would have to read unlawful out of the malice aforethought and we would need to not read it into the unlawful wording embedded in 1111.  There are substantial rule of lenity type opinions in U.S. courts that would tell us to not construe the statute in such a fashion. 

    Of course, as you noted this is all moot as a matter of procedure.  Moreover, even if a future administration were willing to prosecute they would need to overcome not only these challenges, but also potential defenses, graymail issues associated with classified evidence, and the possibility of jury nullification. 

    However, if the U.S. signs onto the ICC someday would that change our analysis?  Would the U.S. be “unwilling” to prosecute?   Moreover, what if the killings occur on the territory of an ICC signatory? 

  14. Kevin:

    I’m intrigued by your dismissal of Liz’s point based on the AUMF, because — assuming the facts presented in the recent NYT piece is correct — I think that the AUMF clearly gives the federal government the power to kill al-Aulaqi in some situations, but not the power to torture of those detained in U.S. custody.

    I structure the post below along two questions: First, assuming no protections whatsoever for al-Aulaqi, does the U.S. government have the power to use lethal force against him? Second, if so, are there any legal protections for al-Aulaqi that would rebut the government’s ability to use lethal force against him?

    I. THE GOVERNMENT’S POWER TO USE FORCE
    The AUMF gives the President the power to “use all necessary and appropriate force against those … organizations … he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, … in order to prevent any future acts of international terrorism against the United States … .” Presumably, that authorization includes the use of paramilitary forces associated with the CIA. Although the title of the section refers to “Armed Forces,” the use of “necessary and appropriate” in the operational text would seem to confer on the President the discretion about how exactly armed force should be used. 

    Per Hamdan and Charming Betsy, it seems to me that we should interpret the AUMF as authorizing only that which complies with IHL, though that proposition is clearly not settled law. See Al-Bihani v. Obama, 590 F.3d 866, 871 (D.C. Cir. 2009) (denying that the AUMF is limited by IHL).
    That said, it isn’t clear that IHL prohibits the CIA’s killing of al-Aulaqi, provided that the strike complies with the proportionality principle, the protections in Chapter III of Additional Protocol I, and the other jus in bello limitations that restrain the U.S. military. Other IHL restrictions, moreover, do not seem to make any sense in this context. (Dare I call them quaint?) For example, in the context of unmanned drones, where there is no need for possible identification when a pilot is shot down, it makes no difference whether the drone’s controller is in uniform or not. In essence, on pragmatic grounds, I see a material difference between a CIA officer on the ground shooting al-Aulaqi – where the full panoply of IHL obligations should apply – and the killing him via a drone strike. At minimum, IHL on the subject is not crystal clear.

    Contrast the ambiguity of IHL — which, remember, is only operationalized in U.S. courts because it is a pragmatic canon of interpretation — with the clear command of the statute, whereby the President is authorized to use military force against Al-Qaeda. Even if it violates IHL to kill al-Aulaqi,  to the extent that the AUMF and IHL cannot be reconciled, the AUMF trumps.

    II. PROTECTIONS FOR AL-AULAQI
    Obviously, once we’ve established that the Federal Government has the power to kill al-Aulaqi, we must determine whether his substantive and procedural due process rights have been violated. At risk of treating an important question briskly, it seems a little silly of us to claim that killing the enemy on the battlefield is a violation of due process, even if they hold American citizenship. (For example, American citizens served in the German armed forces during WWII, and presumably killing or capturing them was perfectly legal.) For the purposes of the constitutional analysis, per the AUMF’s reference to “nations”, I’d tie the definition of the battlefield to territories beyond the effective reach of U.S. criminal law; i.e. political spaces where governments are unwilling or unable to stop harboring terrorists. Cf. Boumediene (stressing the need for practicality when considering the extraterritorial application of constitutional protections of individual rights). Thus, provided capture by law enforcement is not a a practical option, the U.S. could reasonably kill al-Aulaqi in Afghanistan (a battlefield by any definition, including at international law), Yemen (a space where the AUMF authorizes the use of force as a “nation… harboring”), but not Italy (violation of an extradition treaty that has practical effect; not a “nation … harboring”) or New Mexico (the space is fully occupied by the criminal law, The Posse Comitatus Act, full constitutional protections, etc.). Remember, nothing is preventing al-Aulaqi from surrendering to law enforcement in order to avail himself of the U.S. criminal justice system to prove his innocence.

    III. WHY KILLING AL-AULAQI IS DIFFERENT FROM TORTURE
    Contrast the above mess with the torture provisions. Torture is clearly prohibited by IHL, a signed and ratified treaty (the CAT), the Constitution (5th amdt., 8th amdt.,) and U.S. statutory law (2340A, TVPA). The detention authorized by the AUMF pursuant to the law of war presumably included prisoner of war protections. See Hamdi, Hamdan. The fact that John Yoo jumped on the crazy-train with his OLC memos does not mean that the example of torture is not clearly distinguishable from the use of force to kill Anwar al-Aulaqi.

    I know that the above analysis is essentially a pragmatic one, and that various other assumptions could be made along the way that would lead to different conclusions. But, at minimum, I think that the AUMF + IHL’s ambiguities + IHL’s non-binding nature in U.S. courts should rebut the unlawful combatant +1119 argument and clearly distinguish this case from the torture issue.

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