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.