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.