10 Mar Why the “Public Authority” Defense Does Not Work for the CIA
I’m grateful to Ken, Wells Bennett, and Marcy Wheeler for speculating that my April 2010 blog post on 18 USC 1119, the foreign-murder statute, is the post referred to in today’s New York Times article on the behind-the-scenes machinations that culminated in the CIA using a drone to kill Anwar al-Awlaki. I imagine they are correct; the post fits the timeline and Marcy notes that no other post around that time on a legal blog specifically addressed the foreign-murder statute. If so, it’s a testament to the growing importance of academic blogging.
In this post, I want to discuss the part of the White Paper that seems to be motivated by the questions I raised in my 2010 post — Part III, which argues that killing a US citizen abroad who qualifies as a senior operational leader in al-Qaeda or its associated forces would not be murder because the individual responsible for the killing would be entitled to a public-authority defense. Here, for example, is one statement to that effect (p. 14):
A lethal operation against an enemy leader undertaken in national self-defense or during an armed conflict that is authorized by an informed, high-level official and carried out in a manner that accords with applicable law of war principles would fall within an established variant of the public authority justification and therefore would not be murder.
I have no problem with sections A and B of Part III, which argue that an individual prosecuted for violating the foreign-murder statute would be entitled to argue that the killing was justified because it was conducted pursuant to public authority. I also have no issue with the idea, offered in section C, that a member of the US armed forces would indeed be acting pursuant to public authority if he killed a combatant in an international armed conflict (IAC); in such conflicts, members of a state’s armed forces always have the right to kill — in other words, are justified in killing — members of the enemy state’s armed forces. The existence of the combatant’s privilege in IAC is black-letter international humanitarian law (IHL).
But that is not the end of the inquiry, for one simple reason: al-Awlaki was killed by the CIA, not by the US military. The White Paper does not discuss whether a CIA drone operator would be entitled to a public-authority defense in a prosecution under the foreign-murder statute; indeed, all of the sources cited in III.C regarding the defense (p. 14) — three classic criminal-law treatises and an old state case — claim that the laws of war entitle a soldier to kill the enemy. They say nothing about the right of anyone else to kill.
So would a CIA drone operator be entitled to a public-authority defense? I don’t see how. I won’t spend much time explaining why “national self-defense” does not provide the requisite public authority; as I explain in my signature-strikes article (and as Marko Milanovic explains here), a legitimate act of self-defense may justify the US violating another state’s sovereignty, but it does not — and cannot — justify depriving the target of his right to life. That deprivation would have to be independently justified either by IHL (if the killing took place in armed conflict) or by IHRL (if it took place outside of armed conflict). In the words of the International Law Commission’s commentary to the Draft Articles on the Responsibility of States for Internationally Wrongful Acts:
This is not to say that self-defence precludes the wrongfulness of conduct in all cases or with respect to all obligations…. As to obligations under international humanitarian law and in relation to non-derogable human rights provisions, self-defence does not preclude the wrongfulness of conduct.
The real question, then, is whether the laws of war would justify a CIA drone operator killing an American citizen like al-Awlaki. Let’s assume, for sake of argument, three things: (1) the killing took place in armed conflict, so was subject to IHL; (2) the target qualified as a combatant, or at least as a civilian directly participating in hostilities, at the time of the attack; and (3) members of the US armed forces possess the combatant’s privilege — the right to kill — in non-international armed conflict (NIAC) as well as in international armed conflict. All three assumptions are debatable; I have discussed (1) and (2) many times on the blog and in my scholarship, and it’s not worth getting into (3) here, because the US has always accepted it.
But even if we grant those assumptions, I simply fail to understand how the US could argue that a CIA drone operator has the right to kill an American citizen abroad, even one who otherwise qualifies as a legitimate target. In an international armed conflict, the categories of individuals who possess the combatant’s privilege are specified by Art. 43 of the First Additional Protocol (AP I):
Art 43. Armed forces
1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.
2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.
3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.
The CIA is obviously not an “organized armed force, group, or unit” that is under the command of the US military; the CIA is, in its own words, “an independent US Government agency responsible for providing national security intelligence to senior US policymakers.” Nor are the CIA’s drone strikes controlled by the military (which would not satisfy Art. 43 anyway). The interesting provision is paragraph 3. The CIA may be an “armed law enforcement agency,” but it still does not satisfy Art. 43(3): first, it has not been “incorporated” into the US’s armed forces, because incorporation requires national legislation subjecting the agency to military control (see the ICRC Commentary to AP I, para. 1682); and second, the US has not informed al-Qaeda and its associated forces that it has been so incorporated — indeed, as widely noted, the US has never even formally acknowledged that the CIA drone program exists.
In an IAC, then, CIA drone operators would not have the right under IHL to kill anyone. And it is difficult to see how the situation could be any different in a NIAC. Arguing that the rules of IAC apply analogically in NIAC, as the US often does — it borrows the concept of an al-Qaeda “associated force,” for example, from the IAC concept of co-belligerency — is no help, for all the reasons just mentioned. So the US would have to argue that the category of privileged combatants in NIAC is somehow actually wider in NIAC than in IAC, an idea for which there is no precedent in state practice and little if any support in conventional international law. (An excellent Australian scholar, Ian Henderson, has argued that a state can authorize anyone it wants to use lethal force in a NIAC. I don’t find his argument persuasive, particularly in the context of a transnational NIAC where a state is using force on the territory of many other states, but interested readers should check out his article.)
This is a critical conclusion. If a CIA drone operator does not possess the combatant’s privilege in the US’s “NIAC” with al-Qaeda and its associated forces, the US cannot plausibly argue that — to quote another paragraph in the White Paper (p. 15) — killing someone like al-Awlaki “would constitute a lawful killing under the public authority doctrine” because it was “conducted in a manner consistent with the fundamental law of war principles governing the use of force in a non-international armed conflict.” Such a killing would not be “consistent with the “the fundamental law of war principles governing the use of force,” because the absence of combatant’s privilege means that a CIA drone operator has no right under IHL to use any force at all. As a result, a CIA drone operator prosecuted for violating the foreign-murder statute would not be entitled to a public-authority defense — at least insofar as the US purports to base his or her public authority from IHL’s recognition of the right of privileged combatants to kill.
Finally, I want to say a few words about Part IV of the White Paper, which argues that killing someone like al-Awlaki would not qualify as a war crime. I completely agree with that conclusion, assuming that the target of the drone strike was, in fact, a combatant or a civilian directly participating in hostilities. An unprivileged combatant — ie, someone who does not possess the combatant’s privilege — does not commit a war crime simply because he uses force; he commits a war crime only if he uses force in a manner specifically prohibited by IHL. That’s why, for example, considering al-Nashiri’s attack on the USS Cole to be a war crime is absurd: although al-Nashiri had no right to use force against the USS Cole, the USS Cole was a legitimate military target that could have been lawfully targeted by a privileged combatant.
Does that mean al-Nashiri did not commit a criminal act when he attacked the USS Cole? Absolutely not. But here’s the point: an unprivileged combatant who attacks a legitimate military target does not commit a war crime, but his actions can still be prosecuted as an ordinary crime under domestic law. The US has every right to prosecute al-Nashiri for murder in a federal court — just as it would have every right to prosecute an American who, because he lacked the combatant’s privilege, violated federal law by using force against a target that could have been lawfully attacked by a privileged combatant.
Sound familiar? This is exactly the situation faced by a CIA drone operator who kills an American citizen abroad. Because CIA drone operators do not possess the combatant’s privilege, a drone operator does indeed violate federal law when he kills an American citizen abroad — namely, the foreign-murder statute. That is true even though the exact same attack would not be criminal if it was carried out by a drone operator working for the US military. The difference is precisely one of public authority: the military drone operator has it (the combatant’s privilege); the CIA drone operator does not.
NOTE: An earlier version of this post suggested that the White Paper was written prior to al-Awlaki’s death. The New York Times article claims that, on the contrary,it was “prepared months after the Awlaki and Khan killings amid an internal debate over how much to disclose.” If so, that’s troubling — because it suggests that the author(s) of the White Paper did not even recognize that the public-authority defense might function differently depending on whether the defendant in a prosecution under the foreign-murder statute was a soldier or a CIA officer.
Kevin, As I said in response to your earlier post on this topic, CIA covert action statutes provide domestic authority to engage in a wide array of conduct. This certainly includes—as a purely domestic legal matter—attacking (in the AP I sense of the term) civilian or military enemy agents in the context an armed conflict (IAC or NIAC), and arguably even includes attacking such agents outside the context of an armed conflict (but only when the President authorizes it). True, this is broader than common law public authority. But there is absolutely nothing of which I am aware that limits Congress’s constitutional authority to sanction extraterritorial acts that violate international law. Territorial acts more clearly depend upon the relationship and congruity of any applicable international and constitutional limitations on Congress’s powers. Furthermore, it is debatable whether fundamental law of war principles require an attacker to meet formal IHL requirements for prisoner of war status and the combatant’s privilege. On that point, I note that the perfidy prohibition is stated by some—incuding European experts and scholars that I know personally—to be a fundamental law of war principle. To my knowledge, it is has never been included as a fundamental principle… Read more »
Your arguments, which I will mull over, do not affect the basic point of the post: that the White Paper is wrong to find the basis for a public authority defense either in national self-defense or in IHL. I’m not trying to find the basis there; the US is. Whether there is some independent domestic basis for such public authority is beyond the scope of the post.
I will point out, though, that the National Security Act prohibits the President from authorizing any covert action by the CIA that violates the Constitution or a federal statute. So unless you believe that the President’s Art. II authority somehow trumps the foreign-murder statute — in which case it was fine for the CIA to torture people, as well, because that authority must also trump the federal torture statute — relying on the CIA’s ability to engage in covert action doesn’t provide a basis for the public-authority defense, either.
But there is absolutely nothing of which I am aware that limits Congress’s constitutional authority to sanction extraterritorial acts that violate international law. Territorial acts more clearly depend upon the relationship and congruity of any applicable international and constitutional limitations on Congress’s powers.
Absolutely correct. But we are not talking about acts that violate international law; we are taking about acts that violate domestic law — namely, the foreign-murder statute, which was duly enacted by Congress itself. The issue is whether a CIA drone operator can plausibly claim public authority for violating that statute. If IHL does not provide that authority (as it would for a soldier), some other act of Congress must. But which one is it? The AUMF? I don’t see how that is possible. The AUMF didn’t explicitly amend the foreign-murder statute, and every canon of statutory construction counsels against reading the AUMF to have implicitly amended it. Moreover — and again — if the AUMF automatically trumps any pre-existing federal statute that conceivably limits the AUMF’s scope, then there was nothing wrong with the Bush administration’s torture regime. I don’t accept that.
[…] that is a fairly long segment I borrowed from Kevin, but there is much more at his superb post, please do go digest all of it. Suffice it to say, for the reasons stated, the “public authority […]
Kevin, I am not sure that your reading of the White Paper is entirely accurate but don’t wish to debate that issue at length. On these issues, especially in relation to “national self-defense,” the White Paper appears to me to be relying on domestic law—the Constitution or congressional authorization—to establish domestic public authority to engage in these international acts. Otherwise why reference the President’s independent power to defend the nation when attacked? At any rate, I think it more important to make one observation regarding your excellent point about the covert action statute requiring compliance with federal law, an aspect of the program that I have highlighted here at OJ before. To say that covert action must usually comply with foreign murder statute is not to say that it must always do so. First, the foreign murder statute is silent regarding the extent to which it applies in the context of war or armed conflict. Additionally, we are not dealing solely with the authority of the covert action statute, but that authority combined with the Authorization for the Use of Military Force (AUMF). These combined authorities would appear to provide requisite congressional authorization/domestic authority for the CIA to… Read more »
[…] he published a blog post which is highly critical of this key omission in their analysis: ”Why the ‘Public Authority’ Defense Does Not Work for the CIA.” The blog post seems quite thorough, and one looks forward to hearing what current […]
Very interesting post and great discussion between you and John.
As you know, combatant immunity in an IAC is most clearly set out in article 87 GCIII (“Prisoners of war may not be sentenced by the military authorities and courts of the Detaining Power to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts.”) It is very clearly aimed at the domestic law of the opposing belligerent.
There are no equivalent provisions to article 87 GCIII in, for example, Common Article 3 or APII. There are also no equivalents of article 4A GCIII or articles 43 and 44 API. Given the uncertainty as to the law applicable to a NIAC, I don’t think you can state that an attack by a CIA operative on an otherwise lawful target in a NIAC is not consistent with law of war principles just because it is done by a person who in an IAC would not attract the combatant’s privilege and, thereby, provide immunity from prosecution under another’s State’s domestic law.
I know that’s your position — that’s why I made sure to link to your article. I wish I could have addressed your argument at more length, but it would have made the post unreadable.
[…] he published a blog post which is highly critical of this key omission in their analysis: “Why the ‘Public Authority’ Defense Does Not Work for the CIA.” The blog post seems quite thorough, and one looks forward to hearing what current […]
John says: “the foreign murder statute is silent regarding the extent to which it applies in the context of war or armed conflict.”
I would have thought that the failure of a statute to state an exception, was usually taken as the absence of an exception?
And again, “the context of war or armed conflict,” like John’s point about the AUMF, both provide authority for armed forces, which seems to this lay reader to assume the conclusion: namely, that CIA is “military.”
… What I find puzzling on a factual level is simply this: why not have DOD direct the drone strike? Whatever intel CIA had, couldn’t it have been shared with DOD? What is *gained* by having CIA play soldier?
Anderson, quite the opposite, federal law often clearly states when a statute applies (or applies differently) in armed conflict (see e.g., the “old” FISA). Additionally, the armed conflict context and AUMF both invoke the nation’s war powers as commanded by the President pursuant to any relevant federal law, not simply those of the military. The President is Commander-in-Chief but has authority over more than just the military and/or DoD. In fact, historically, Congress delegated the President authority to commission private vessels to engage in naval warfare on the nation’s behalf (delegating its power to grant letters of marque). Therefore, upon a declaration of general or limited war, the President, pursuant to congressional authority, could commission civilians to participate in the hostilities of our armed confict on the nation’s behalf. Similarly, other agencies of the federal government may be used to support the war effort within their congressionally authorizd role. To say that the CIA (former OSS) may have no role in the hostilities of armed conflict is to ignore its origins and historical uses. The CIA is not “military” but has traditionally had a paramilitary element. (I again express no opinion on the wisdom of this as a matter of policy.) … Read more »
John, thanks for your response. As I understand it, the point of a letter of marque is that one HAS a letter of marque to resolve any issues of one’s authority to conduct war. Where is the CIA’s letter of marque or equivalent document?
As for origins and history, I don’t see how a pattern of illegal conduct is a justification here.
If the CIA really is authorized to act as a military force, where is that authorization? It seems to me that one could point to a statute if Congress intended that the CIA be part of the armed forces.
Your point is spot-on. Nothing in the text of the foreign-murder statute suggests that it exempts acts during armed conflict, much less acts during armed conflict committed by unprivileged combatants. That does not mean, as I note in the post, that a public-authority defense is unavailable. I think it is. But it does mean that the burden is on the American who kills an American abroad to show that he acted with public authority (as with any affirmative defense). My post simply points out that IHL does not provide a CIA drone operator with that authority. That does not mean another federal statute cannot provide it — but for the reasons that Philip Dore discusses very nicely in this article, I don’t think the AUMF does the trick. Can the President’s Article II power? I don’t think so — and as I’ve noted, if it does, then Article II justified the Bush administration’s torture regime, as well. Perhaps others think that’s fine. I don’t.
Anderson, this may sound circular but the “letter of marque” is a classified finding of the President authorizing the covert program supporting an armed conflict. The question is whether such programs are governed by different rules. I don’t see anything in the Constitution that limits Congress’s ability to grant public authority to angage in war to non-military components of our government. The creation of the CIA and grant of authority to authorize its various operations seems quite consistent with the Court’s interpretation of the Necessary and Proper Clause.
Kevin’s point about this reasoning legitimizing torture is inaccurate. The War Crimes Act certainly applies and prohibits torture in armed conflict. That is why the Bush administration back-pedaled after the Supreme Court’s 2006 decision in Hamdan. The Court classified the armed conflict with al Qaeda as a non-international armed conflict, which meant that the War Crimes Act applied. The Office of Legal Counsel claimed the conflict with al Qaeda was neither international nor non-international armed conflict and was therefore subject to applicable customary and treaty limitations or the War Crimes Act.
Anderson, 18 USC 2441 (war crimes) is no different than 18 USC 1119 (foreign murder) — both are acts of Congress that prohibit Americans from committing certain acts overseas. Congress is free to amend or repeal either statute, but it is not free to ignore them. John seems to believe that the foreign-murder statute does not apply in armed conflict because it does not specifically say that it does, but he provides no rationale and no evidence in defense of that view. Moreover, the logical interpretation of a statute that categorically prohibits a particular kind of conduct is that, in fact, all conduct of that kind is prohibited.(Subject, of course, to any applicable defenses.) As for John’s comment about not seeing anything in the Constitution that limits Congress’ ability to grant public authority to non-military components of government — I completely agree. But it has not not done so. The National Security Act, enacted by Congress, prohibits the President from authorizing covert action that violates either the Constitution or federal law. And the foreign-murder statute prohibits any American from killing another American overseas. What statute supersedes the foreign-murder statute, granting the CIA the right to kill Americans overseas? There is no… Read more »
Kevin, The principled argument is that the War Crimes Act and its prohibition of torture specifically regulates the conduct of American nationals in armed conflict and the foreign murder statute doesn’t. The AUMF grants public authority to kill enemy combatants to those whose statutory grants of authority include the ability to do so (i.e., not the State Department or Department of Agriculture). It my view it is fair to read the NSA and AUMF as providing public authority for the CIA to kill enemy combatants who are American citizens, but not for the CIA to kill American citizens as part of other covert programs that are not a integral part of such any such conflict. With that said, I agree that your concern becomes quite acute when the President acts independently in defense of the nation. At that point, he must rely solely on his Article II authority to provide public authority for agents of the government to act in defense of the nation. Outside the context of an armed conflict (including one independently determined by the President to exist a la the Prize Cases rationale), that would be harder to argue…although the White Paper seems to make that argument… Read more »
It’s an interesting question. There is also a prohibition against murdering foreign officials or internationally protected persons, “irrespective of recognition by the United States” in 18 USC § 1116. That might come into play in operations against a few de facto or popularly elected regimes.
The US Supreme Court has made it clear that even the civilian contractors that accompany the US Armed Forces overseas or discharged veterans should not be subject to regular military disciple or to the jurisdiction of the military courts.
The Congress closed some of the gaps created by those decisions by extending the jurisdiction of the federal courts to crimes committed overseas involving DoD employees, defense contractors, dependents, and former members of the armed forces. But the Military Extraterritorial Jurisdiction Act (P.L. 106-523) did not contain any provisions for employees of other federal agencies, like the CIA.
“At that point, he must rely solely on his Article II authority to provide public authority for agents of the government to act in defense of the nation. ”
“Commander in Chief of the Army and Navy, and of the militia of the several states, when called into the actual service of the united States…”
OK, the Air Force spun off from Army and Marines have all but spun off from Navy and the militia of the several states is the National Guard (curiously, Congress added the National Guard Bureau to the Joint Chiefs last year). That boxes the compass of who’s covered in the President’s Article II authority over “agents of the government to act in defense of the nation. ” Since the Armed Forces are, as Lincoln would say, clothed in great powers, that’s plenty.
One more point, 18 USC 1119 protects US citizens from foreign murders, but there’s another statute– 18 USC 956(a) that protects anyone (regardless of citizenship) worldwide from being the target of a murder conspiracy when at least one conspirator is within jurisdiction of United States. Now THAT’S a can of worms, it apparently criminalizes any drone strike not protected by combatant’s privilege.