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

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

As everyone on Twitter knows by now, the US government has released the notorious memorandum in which the OLC provides the supposed legal justification for killing Anwar al-Awlaki. I’m a bit disappointed not to get a mention in the memo; people in the know have suggested that a post I wrote in April 2010 led the OLC to substantially rewrite it. Vanity aside, though, I’m more disappointed by the memo’s failure to adequately address the most important issue regarding the “public authority justification,” which is at the heart of the memo’s conclusion that it would be lawful to kill al-Awlaki: how can the CIA be entitled to the public-authority justification when the CIA had no authority to use force against Al Qaeda in the Arabian Peninsula (AQAP)?

To understand why that’s a problem, let’s step back and consider what the memo says about whether the Department of Defense (DoD) had the legal authority to kill al-Awlaki. Remember, the memo was written before al-Awlaki was killed, at a time when it wasn’t clear which organisation — the DoD or the CIA — would actually kill him. (It was also written long after al-Awlaki was put on the kill list, as Hina Shamsi reminds us.)

The memo begins by emphasizing (p. 14) that its analysis — for both the DoD and the CIA — turns on whether 18 USC 1119, the foreign-murder statute, incorporates the “public authority justification” (PAJ). Indeed, it notes in n. 24 that the PAJ is the only defence it will consider. The memo then concludes (p. 20), after five pages of analysis, that in fact s 1119 does incorporate the PAJ. It’s an impressive analysis, and I find it convincing. So let’s grant that the PAJ potentially applies to the killing of al-Awlaki.

The question then becomes: who can invoke the public authority justification? The memo has little problem concluding that the DoD would be entitled to it, because (p. 20) “the operation would constitute the ‘lawful conduct of war’ — a well-established variant of the public authority justification.” In reaching that conclusion, the memo argues (1) that the AUMF covers AQAP, (2) that al-Awlaki qualifies as a targetable member of AQAP; (3) that the US is involved in a NIAC with AQ, making the laws of war applicable; and (4) that the DoD had pledged to obey the laws of war in any lethal operation.

I would quibble with much of the analysis, particularly the memo’s discussion of the scope of the non-international armed conflict between the US and “al-Qaeda.” But I’m prepared to accept that, in the abstract, the DoD would be entitled to invoke the PAJ. My problem is with the memo’s casual assertion that the PAJ applies equally to the CIA, which actually killed al-Awlaki. Here is its conclusion (p. 32):

Based on the combination of circumstances that we understand would be present, we conclude that the public authority justification that section 1119 incorporates — and that would prevent the contemplated DoD operation from violating section 1119(b) — would also encompass the contemplated CIA operation.

Is it really the case that the CIA is no less entitled to invoke the PAJ than the DoD? There is at least one obvious difference between the two: because international law entitles only the members of a state’s regular armed forces to participate in hostilities, the CIA had no authority under international law to use armed force against al-Awlaki. The CIA is not part of the US’s regular armed forces.

There is, of course, an obvious response to that objection: namely, that the availability of the PAJ depends on domestic US law, not on international law, so it is irrelevant whether the CIA had the right under international law to used armed force against al-Awlaki. Because AQAP was covered by the AUMF, the PAJ applies to the CIA and the DoD equally. Indeed, that seems to be precisely the memo’s argument, even though it does not specifically mention the AUMF in the CIA section of its analysis.

But I don’t think the issue is that simple. To begin with, the AUMF itself seems quite deliberately limited to military force. It’s not the AUF, the “Authorization to Use Force,” or even the AUAF, the “Authorization to Use Armed Force.” It’s the “AUMF” — the “Authorization to Use Military Force.”

Moreover, the use of the word “military” hardly seems accidental. Just consider the entirety of the Joint Resolution that became the AUMF (emphasis mine):

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens;

Whereas such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad;

Whereas in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence;

Whereas such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States; Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the “Authorization for Use of Military Force.”

SECTION 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL. — That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) WAR POWERS RESOLUTION REQUIREMENTS —

(1) SPECIFIC STATUTORY AUTHORIZATION — Consistent with section 8(a)(1)
of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution
supercedes any requirement of the War Powers Resolution.

Notice that the AUMF specifically authorizes the President to use the “United States Armed Forces” against AQ; it says nothing about the CIA using force. And, of course, the War Powers Resolution, which the AUMF specifically references, applies only to “the introduction of United States Armed Forces into hostilities.” How, then, can the AUMF provide the domestic authorization necessary for the PAJ to apply to the CIA?

Nor is that all. The memo’s own cites strongly suggest that the PAJ applies only to the “lawful conduct of war” by the US’s regular armed forces. Here is the entirety of footnote 25, in which the memo explains the meaning of the “lawful conduct of war” version of the PAJ:

See. e.g.. 2 Paul H. Robinson, Criminal Law Defenses § 148(a), at 208 (1984) (conduct that would violate a criminal statute is justified and thus not unlawful “[w[here the exercise of military authority relics upon the law governing the armed forces or upon the conduct of war”); 2 LaFave, Substantive Criminal Law § 10.2(c), at 136 (“another aspect of the public duty defense is where the conduct was required or authorized by ‘the law governing the armed services or the lawful conduct of war”‘ (internal citation omitted); Perkins & Boyce, Criminal Law at 1093 (noting that a “typical instance i.n which even the extreme act of taking human life is done by public authority” involves “the killing of an enemy as an act of war and within the rules of war”); Frye, 10 Cal. Rptr. 2d at 221 n.2 (identifying “homicide done under a valid public authority, such as execution of a death sentence or killing an enemy in a time of war,” as one example of a justifiable killing that would not be “unlawful” under the California statute describing murder as an “unlawful” killing); Stale v. Gut, 13 Minn. 341,357 (1868) (”that it is legal to kill an alien enemy in the heat and exercise of war, is undeniable”); see also Model Penal Code § 3.03(2)(b) (proposing that criminal statutes expressly recognize a public authority justification for a killing that “occurs in the lawful conduct of war,” notwithstanding the Code recommendation that the use of deadly force generally should be justified only if expressly prescribed by law); see also id at 25 n.7 (collecting representative statutes reflecting this view enacted prior to Code’s promulgation); 2 Robinson, Criminal Law Defenses § 148(b), at 210-11 nn.8-9 (collecting post-Model Code statutes expressly recognizing such a defense).

The first two cites, from Robinson and LaFave, both specifically mention the military. And the others, though not specifically limited to the military, seem to have in mind traditional conflicts between the regular armed forces of two states. (Particularly the case from 1868!) Even the Model Penal Code specifically mentions the armed services; s 3.03(1), which the memo conveniently avoids citing, deems killing justifiable when it is required or authorized by “the law governing the armed services or the lawful conduct of war.”

Interestingly, the memo appears to be aware that the traditional version of the PAJ is almost certainly limited to the killings committed by the military. Here is footnote 43:

We note, in addition, that the “lawful conduct of war” variant of the public authority justification, although often described with specific reference to operations conducted by the armed forces, is not necessarily limited to operations by such forces; some descriptions of that variant of the justification, for example, do not imply such a limitation. See, e.g., Frye, 10 Cal. Rptr. 2d at 221 n.2 (“homicide done under a valid public authority, such as execution of a death sentence or killing an enemy in a time of war”) ; Perkins & Boyce, Criminal Law at 1093 (“the killing of an enemy as an act of war and within the rules of war”).

Pretty weak tea, indeed: a California appellate decision and a criminal-law treatise, both of which — as noted above — give no indication that their authors were thinking about transnational armed conflicts in which an intelligence service functions as a shadow military.

In short, the memo does a very poor job of arguing that the public-authority justification applies to the CIA as well as to the DoD. Both the text of the AUMF and the memo’s own citations strongly suggest that the PAJ is limited to killings committed by the US’s regular armed forces. Unfortunately for the government, that is not who killed al-Awlaki. The CIA did.

So let’s call killing al-Awlaki what it still is, even after the memo — murder.

Topics
Courts & Tribunals, Featured, Foreign Relations Law, International Criminal Law, International Human Rights Law, National Security Law, North America, Organizations
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Benjamin Davis
Benjamin Davis

Your analysis appears right. However, the other shoe is prosecutorial discretion and a clear statement idea that the CIA person who did this would argue they were acting on reasonable reliance on this memo. The idea is that no domestic prosecutor would be willing to try them because of the one paragraph mutatis mutandis argument. So it is state murder because no organ of the state is willing to try the state actor because of the memo at least and other inertial forces.

Ryan Patrick Alford
Ryan Patrick Alford

I agree with Kevin about the PAJ analysis — and I would add that the constitutional analysis is both incomplete and rather cursory.

More importantly, section VI makes it clear that the desired conclusions are driving the analysis, just like the Yoo/Bybee/Philbin OLC memoranda during the Bush Administration (which the Obama Administration made a great show of disavowing). This memo should spark an OPR investigation; the fact that this will never occur does not speak well for the rule of law in the United States.

Ryan Patrick Alford
Ryan Patrick Alford

I’d love to write a guest post — this would be a great jump start for the article I’m drafting.

Just to foreshadow this: it’s frankly amazing that Barron makes a stunning leap from the reasoning in Hamdi (note also that Boumediene makes no appearance in the memo) to concluding that the balancing test in Matthews v. Eldridge would be applicable to a decision to target a citizen for death. (This is only possible if you ignore the Treason and Bill of Attainder Clauses of the Constitution, which are, admittedly, somewhat unfashionable at present.)

On an unrelated note, did anyone notice that the undated DoJ white paper claimed that the targeting did not violate Executive Order 12333 (the assassination ban) while Barron fails to discuss it in the memo that purportedly provides the basis for that conclusion?

Howard Gilbert
Howard Gilbert

While other countries even in peacetime guard their borders with special units of their armed forces, the US even in wartime guards its borders with armed uniformed members of the same civilian agencies that guard the borders in peace, Customs, Immigration, Border Patrol, and so on. You also equate Armed Forces with DOD, whereas the Coast Guard is a branch of the Armed Forces operating under Homeland Security unless transferred to DOD during wartime. So if an armed uniformed unit of a foreign army at war with the US decided to attack the US mainland at a point where it can only immediately be repelled by 1) police (SWAT), 2) Border Patrol, or 3) Coast Guard then within this rigid analysis any enemy soldier killed by non-DOD personnel operating under LOAC rules instead of law enforcement rules (shoot first because uniformed enemy soldiers cannot be arrested, commit no crime by invading the US, and have combatant immunity) would be a case of murder because civilians are not under US law authorized to engage in the defense of the US. I believe this analysis requires the complete reorganization of the US home defense as it has been planned and staffed over… Read more »

Zach Tripodes
Zach Tripodes

Kevin, could you provide a link to the White Paper? The one in your post does not link to a URL.

Anonsters
Anonsters

Stupid question tiem! You say:

“Notice that the AUMF specifically authorizes the President to use the “United States Armed Forces” against AQ; it says nothing about the CIA using force.”

Yes, the title of the section says “United States Armed Forces.” But what the section actually authorizes is “us [of] all necessary and appropriate force.” How much weight are section names to be given in interpreting the operative language in the body of the text?

Anonsters
Anonsters

And don’t take this the wrong way, because I love you, bro (*anonymous internet commenter fistbump*), but I’ve detected at least one sign that you’ve been an ex-pat too long: calling an OLC memo a “White Paper.” 😛

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[…] US borders. Some legal scholars, most prominently Melbourne Law School’s Kevin Jon Heller, argued before Awlaki’s killing that any such operation would legally be murder because of this […]

Mary Ellen O'Connell

Jon, Your analysis deserves careful attention, which I will devote to it later today. Many thanks for the impressive effort.

For now, I would just point out that there is no good reason to accept the memo’s most basic premiss: that there is a global war against al Qaeda and associates.

The international legal authorities weigh heavily for the view that the CIA is launching Hellfire missiles using drones at individuals who are not in situations of armed conflict hostilities, including Awlaki in 2011.

It is the strongest point in support of your conclusion.

Mary Ellen O’Connell
University of Notre Dame

Mary Ellen O'Connell

Apologies, I should have addressed my comment, Kevin Jon!

Mary Ellen

Itamar
Itamar

Hi,
Fascinating post.
I have not yet had time to read the memo, but I’m wondering: does your analysis entail that any AQAP targeting by the CIA is murder? Or does this apply only to American citizens? I think it would be useful to make that explicit.
Best regards,
Itamar

Howard Gilbert
Howard Gilbert

Although the statute “only prohibits the murder of US citizens abroad”, your analysis is about when a killing is “murder”. Presumably the same action directed against a non-citizen is still “murder” even if that statute does not prohibit it. The CIA and military are separate today, but the precursor organization, the OSS, was active in lethal operations against Germany during WWII. It encouraged civilians (who lack lawful combatant status) to kill the enemy. Your analysis concludes that this was “murder”, though not of US citizens and not prohibited by US statute. One of the OSS operatives was Arthur Goldberg, who later became a Supreme Court Justice. But of course the same logic concludes that there were murders at Lexington, Bunker Hill, the Alamo, the Warsaw Ghetto, or anywhere else when civilians killed enemy soldiers.

Anonsters
Anonsters

KJH:

I figured. That’s what threw me at first. I thought this was a post about the White Paper, then realized, no, you meant the memo. It’s all good. Although I’m still wondering about my other question, because I feel like I’m missing something stupidly basic.

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[…] Opinio Juris blog, Kevin Jon Heller discusses the legal justifications given in the Department of Justice […]

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[…] his blog post on Opinio Juris entitled Let’s Call Killing al-Awlaki What It Still Is — Murder,Kevin Jon Heller argues, among other things, that the released OLC memo does a very poor job of […]

Hostage
Hostage

Response…Re: So if an armed uniformed unit of a foreign army at war with the US decided to attack the US mainland at a point where it can only immediately be repelled by 1) police (SWAT), 2) Border Patrol, or 3) Coast Guard then within this rigid analysis any enemy soldier killed by non-DOD personnel operating under LOAC rules instead of law enforcement rules (shoot first because uniformed enemy soldiers cannot be arrested, commit no crime by invading the US, and have combatant immunity) would be a case of murder because civilians are not under US law authorized to engage in the defense of the US.

No the federal government never had exclusive war powers. Article 1 section 10 stipulates that “No State shall, without the Consent of the Congress, … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

When National Guard units are not activated, the governor is the commander-in-chief of the units of his or her respective state or territory and can legally engage in war under the circumstances you outlined above.

Hostage
Hostage

Response…Re: But of course the same logic concludes that there were murders at Lexington, Bunker Hill, the Alamo, the Warsaw Ghetto, or anywhere else when civilians killed enemy soldiers.

I think that’s a somewhat strained interpretation of all the militia clauses in the US Constitution and the Bill of Rights. Article 1 of the Hague rules of 1907 explained that the laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps, subject to a list of stipulations that the CIA does not fulfil:

To be commanded by a person responsible for his subordinates;

To have a fixed distinctive emblem recognizable at a distance;

To carry arms openly; and

To conduct their operations in accordance with the laws and customs of war.

David Glazier

Hostage – An unprivileged belligerent (e.g., CIA officer/Border Patrol officer/al Qaeda fighter) commits only the domestic law crime of murder if they kill under LOAC principles — shooting first based on enemy status rather than in response to conduct justifying self-defense. The consequence of this is that in the scenarios you postulate, it will be U.S. law that will determine if the polite or border guards have committed “murder,” and U.S. prosecutors and courts will be free to apply a public act standard to excuse the conduct from criminal liability. The problem with the CIA is that they’re conducting their killing outside the U.S., and in addition to the possibility of violating the U.S. statute discussed in the OLC memo, their lack of belligerent immunity risks making every killing they commit a murder under the domestic law of the state where it takes place, and potentially the domestic law of the state of nationality of any of their targets. With respect to international law, there is no reason that the U.S. couldn’t declare such agencies to be militia or other volunteer units integrated into the armed forces at the outbreak of hostilities and thereby qualify their members for POW status.… Read more »

Hostage
Hostage

Re: The consequence of this is that in the scenarios you postulate, it will be U.S. law that will determine if the polite or border guards have committed “murder,” and U.S. prosecutors and courts will be free to apply a public act standard to excuse the conduct from criminal liability. I wasn’t talking about the border patrol or police officers at all. I was just pointing out that the Posse Comitatus Act did not amend Article 1 section 10 of the Constitution or prohibit the use of the military to defend the borders in wartime. Howard Gilbert suggested that in war time the US only uses the same civilian agencies to protect the borders that it uses in peacetime. But that’s not actually the case. He suggested that in the event of an attack on the US mainland by an armed uniformed unit of a foreign army at war with the US, the authorities might be prevented from employing the privileged belligerents in their own national guard units. I was simply explaining that the individual states have explicit war powers under the Constitution and their governors can act as commander-in-chiefs of the national guard and mobilize them in situations, like… Read more »

Jordan
Jordan

Kevin Jon: very good analysis of the AUMF, and Mary Ellen and so many others agree that the U.S. simply cannot be in any sort of armed conflict with AQ, et al. (http://ssrn.com/abstract=2165278 ). However, merely because one disclosed memo is lacking or even legally inept (if that is the case, query) does not allow one to jump to the conclusion that tagetings are per se “murder.” There are other legal justifications for tagetings of those who are engaged in continual attacks on the U.S., its embassies, its military and other nationals abroad — the law of self-defense and collective self-defense (http://ssrn.com/abstract=1520717 and http://ssrn.com/abstract=1718548 )Moreover, the President has constitutional authority to engage in permissible measures of self-defense and collective self-defense under international law under Art. II, sec. 3 of the Const. — which is also addressed in part in the preamble to the AUMF in general terms, not limited to the application of the laws of war in a given context. (see http://ssrn.com/abstracgt=2061835 ) I suspect that in the future there will be more detailed attention to the legitimacy of measures of self and collective self-defense. p.s. it does not seem that international law would preclude engagement of permissible measures… Read more »

Jordan
Jordan

Response…From: Carmi Lecker [mailto:carmi [dot] lecker [at] gmail [dot] com] Sent: Thursday, July 03, 2014 10:24 AM Subject: New York City Bar Association Releases Report on Legality of Targeted Killings by U.S. Drones Under International Law/19.6.14 City Bar Releases Report on Legality of Targeted Killings by U.S. Drones Under International Law Thursday, Jun 19, 2014 – 3:28pm Print Anticipating that targeted killings by drones may increase in the future, both by the United States and by other countries, the New York City Bar Association today released a report analyzing the legality of targeted killings by drones launched by the United States in the context of international law. While noting that there are serious constitutional, moral and policy issues associated with targeted killings using drones, some of which the City Bar has addressed elsewhere, today’s report—titled “The Legality Under International Law of Targeted Killings by Drones Launched by the United States”—deals strictly with the legality of drone strikes under current international law. The 181-page report characterizes the international legal issues as “complex,” and the analysis “complicated” because, among other reasons, “although the analysis of the legality of a drone strike is highly fact-specific, the facts surrounding the strikes are unclear.” Based… Read more »