We Still Don’t Know Where the CIA’s Public Authority Comes From

We Still Don’t Know Where the CIA’s Public Authority Comes From

In late June, I wrote a long post responding to the notorious memorandum in which the OLC attempted to provide a legal justification for killing Anwar al-Awlaki. I argued that although the AUMF likely provides the US military with a public-authority justification for violating 18 USC 1119, the foreign-murder statute, it does not and cannot provide the CIA with that justification. In defence of that conclusion, I cited the title of the AUMF and the text of the statute, both of which make inordinately clear that the AUMF applies only to the military (emphasis mine):

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

[snip]

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.

In response to a FOIA request by Vice News‘ inestimable Jason Leopold, who has led the fight for transparency regarding the use of lethal force, the US government has now released a 25 May 2011 White Paper that specifically argues the CIA is also entitled to a public-authority justification. Unfortunately, the White Paper fails to justify its conclusion — at least in its unredacted portions. Like the earlier memorandum, the White Paper is largely devoted to establishing that the public-authority justification applies to the foreign-murder statute and that members of the US military would be entitled to the justification. (Two conclusions I agree with.) It then simply says this (pp. 14-15):

Given the assessment that an analogous operation carried out pursuant to the AUMF would fall within the scope of the public-authority justification, there is no reason to reach a different conclusion for a CIA operation.

That’s it. That’s the sum total of the unredacted argument. But there is a reason to reach a different conclusion “for a CIA operation” — as pointed out above, the AUMF does not apply to the CIA. Which means that the source of the public-authority justification must lie elsewhere.

Now let me be clear: I am not saying the CIA cannot be entitled to the public-authority justification. I am simply pointing out that the AUMF does not provide the CIA with the necessary authority. Perhaps there is another source, such as Title 50 of the US Code, as my co-blogger Deb Pearlstein has suggested. Indeed, the redaction on page 16 of the new White Paper may well refer to that other source of authority, given that five or six lines of redacted text follow this statement:

Thus, just as Congress would not have intended section 1119 to bar a military attack on the sort of individual described above, neither would it have intended the provision to prohibit an attack on the same target, in the same authorized conflict and in similar compliance with the laws of war, carried out by the CIA in accord with _____.

I don’t understand why the OLC would need to redact a reference to Title 50 (or to some other source of authority). The legal source of the CIA’s authorization to kill Americans overseas — if one exists — hardly seems like a state secret. Until the government reveals that source, however, we remain entitled to conclude that the CIA drone-strike that killed Anwar al-Awlaki violated 18 USC 1119.

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Jordan
Jordan

More generally (e.g., the Koh speech at ASIL), the Executive has made claims under both the law of war paradigm and the self-defense paradigm. Several of us have noted why the U.S. cannot be in an armed conflict with al Qaeda (or a splinter group) as such, although there has been a real war in Afghanistan and parts of Pakistan. And some of us have demonstrated why the targeting of AAA can be justified under the law of self-defense.
If so, the President does not need consent from Congress to engage in permissible measures of self-defense, as even noted in the preamble to the AUMF! The President’s authority is based in his/her obligation to faithfully execute the “Laws,” which include international law as part of the laws of the United States (which, in turn, include the international law of self-defense). Members of the CIA can be acting on behalf of the Executive and the United States and carry out lawful measures of self-defense under international law. Such lawful measures would not be “unlawful” killings or murder.

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Jens David Ohlin

Not that it changes anything in the argument, but perhaps the redactions in the white paper refer to a classified presidential directive