Why Title 50 Does Not Provide the CIA with a Public Authority Justification

by Kevin Jon Heller

As I noted in my previous post, my co-blogger Deborah Pearlstein has suggested that a covert operation authorised by the President under Title 50 of the US Code could function as the CIA’s equivalent to the AUMF in terms of its authority to kill an American citizen overseas. Here is what she has argued:

Here, even if the AUMF was not meant to authorize the CIA to do anything, the CIA has broad authority under Title 50 of the U.S. Code to engage in operations overseas, provided it has relevant Presidential approval and complies with requirements of congressional notification. In other words, I can imagine a straightforward explanation for why such an exception would apply to the CIA as well. That it is not evident from the memo is, I suspect, far more a function of redaction than absence of legal authority.

With respect to Deborah, I don’t think the Title 50 argument works. There is no question that 50 USC 3093 provides the President with considerable authority to authorise “a covert action by departments, agencies, or entities of the United States Government” that he determines “is necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States.” But the President’s authority is not unlimited; indeed, Title 50 contains two important restrictions that very strongly suggest the President could not legally have authorised the CIA to kill an American citizen overseas, and particularly not Anwar al-Awlaki.

The first limit is provided by 50 USC 3093(e), which defines “covert action” for purposes of Title 50 generally (emphasis mine):

As used in this subchapter, the term “covert action” means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include 

(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities;

(2) traditional diplomatic or military activities or routine support to such activities;

(3) traditional law enforcement activities conducted by United States Government law enforcement agencies or routine support to such activities; or

(4) activities to provide routine support to the overt activities (other than activities described in paragraph (1), (2), or (3)) of other United States Government agencies abroad.

The US government has consistently argued that its drone program, both in Yemen and elsewhere, only targets combatants who are involved in a non-international armed conflict between the US and al-Qaeda. While serving as the State Department’s Legal Advisor, for example, Harold Koh claimed that “as a matter of international law, the United States is in an armed conflict with al-Qaeda and its associate forces,” and that “in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaeda leaders who are planning attacks.” Indeed, the new White Paper, like the previous memorandum, emphasizes (p. 12) that “the frame of reference” for whether the CIA is entitled to the public-authority justification regarding Anwar al-Awlaki “is that the United States is currently in the midst of an armed conflict, and the public-authority justification would encompass an operation such as this one were it conduct by the military consistent with the laws of war.”

There is no question, then, that the US government views the use of lethal force against an American citizen who is “a senior leader of al-Qaida or its associated forces” — such as al-Awlaki — as a “traditional military activity.” But if that’s the case, 50 USC 3093(e)(2) specifically prohibits the President from relying on Title 50 to authorise the CIA to engage in such targeting.

Moreover, even if it could somehow be argued that targeting “a senior leader of al-Qaida or its associated forces” in the “armed conflict” between those forces and the US is not a “traditional military activity,” 50 USC 3093(a)(5) would still prohibit the President from authorising the CIA to kill any such leaders who is an American citizen. Section 3093(a)(5) provides that a Presidential finding “may not authorize any action that would violate the Constitution or any statute of the United States.” The foreign-murder statute, 18 USC 1119, is undeniably a “statute of the United States.” The President thus has no authority whatsoever to authorise the CIA to violate section 1119.

That conclusion, it is important to note, is not affected by whether 18 USC 1119 incorporates the public-authority justification — which I believe it does. In order to claim the justification as a defence to a violation of section 1119, the defendant must obviously have the requisite public authority to kill an American overseas. And 50 USC 3093(e)(2) and 50 USC 3093(a)(5) each independently deny the President the right to bestow that authority on the CIA via a covert-action finding under Title 50.

In short, and contrary to the new White Paper, neither the AUMF nor Title 50 provide the CIA with a get-out-of-jail-free card with regard to 18 USC 1119. So unless there is some other source of the CIA’s supposed public authority to kill Americans overseas — and I can’t imagine what it could be — Anwar al-Awlaki’s killing by the CIA is indeed properly described as murder.

NOTE: Marcy Wheeler offers some similar thoughts here.

http://opiniojuris.org/2014/09/06/title-50-provide-cia-public-authority-justification/

18 Responses

  1. Kevin, fascinating post. This is really important stuff.

    You seem to be suggesting that “traditional military activities” includes anything conducted during an armed conflict. Is that the right definition? If it is, then none of the strikes conducted by the Obama administration would be lawful, since they were all covert and conducted pursuant to an armed conflict.

    In any event, this point is not logically necessary for your argument’s conclusion. Even if your definition of traditional military activities is wrong, it is still the case that an authorization to engage in covert action is not, by itself, sufficient to exempt a government official from the demands of a general criminal law prohibition. Put another way, there is nothing in the language of Title 50 which suggests that the covert action authorization is meant to exempt the president from other legal constraints.

    What do you think?

  2. … So basically I am agreeing with the board outlines of your argument but reaching the conclusion through a slightly different route

  3. Jens,

    I’m not sure if any and all actions in an armed conflict necessarily qualify as “traditional military activities,” but I’m confident the one in question — the use of lethal force against someone the US identifies as an (unprivileged) belligerent in that conflict — does. Indeed, that seems like the quintessential military activity.

    I’m not sure, though, that my position would render all of the Obama administration’s strikes unlawful. The ones conducted by the DoD would be lawful even if covert, right? And a Presidential finding authorising the CIA to kill non-Americans abroad would not run afoul of any US law I’m aware of. (Though such attacks could certainly be criminal under the law of other states.) It’s only the ones that violate 18 USC 1119 — where the target is American — that would be problematic.

    As for your second point, I completely agree. The idea that the President can authorise the CIA to violate 18 USC 1119, a duly-enacted and generally-applicable statute, simply by issuing a finding is troubling no matter the context — whether in regard to the federal torture statute or in regard to the foreign-murder statute. If Congress wants to permit the CIA to kill Americans abroad, it can simply amend section 1119.

  4. Jens and Kevin,

    Certainly, not every targeting activity conducted within the context of an armed conflict is a traditional military activity. The origins of the CIA (and a great many other special agencies and forces) contradict such an assertion/conclusion.

    I agree with both of you to an extent. NO covert action unrelated to an existing armed conflict may lethally target an American citizen for any reason. Furthermore, no covert action may target an American citizen who is not targetable under the law of war. The authorization to use lethal force against an American citizen is not unlimited pursuant to an AUMF. Lethally targeting an American citizen must occur within the context of an armed conflict and that citizen must be targetable under the law of war.

    The AUMF provides an implied exception to the Foreign Murder Statute, just as is it provided an exception to the Non-Detention Act in Hamdi v. Rumsfeld. If we do not recognize this, not even the military could target an American citizen overseas who is a member of an enemy armed force. Clearly, Congress did not intend this result.

    Therefore, even if the specific targeting event is properly deemed a traditional military activity, this does not mean that the mission is without public authority. It merely means that the president has exceeded his covert action authority, not that the CIA acts without public authority under the AUMF.

    Targeting an American citizen in an armed conflict created and conducted without statutory authority is a knottier issue. It would require that the President act pursuant to his inherent constitutional authority. For example if the President is acting in national self-defense, I would argue, he would be acting within the scope of his constitutional authority.

    Again, I do not suggest this is wise policy. I simply aim to clarify that targeting and American citizen in armed conflict is not necessarily unlawful.

    For further explanation, please see: http://www.cato-unbound.org/2011/06/08/john-c-dehn/targeting-citizens-armed-conflict-examining-threat-rule-law-context

    My best you both,

    John

  5. Regarding you last comment, Kevin, I want to make clear that I do not believe the AUMF serves as implied authority to violate domestic statutes that are consistent with the law of war, such as the War Crimes Act and the prohibition of torture.

  6. The AUMF does not provide an exception to the foreign-murder statute. It provides the military with a public-authority justification — a defence. In that, I completely agree with the earlier memo. But the AUMF does not provide the CIA with any authority whatsoever, because it applies only to the United States Armed Forces, which the memorandum admits the CIA is not.

    As for inherent constitutional authority, I do not believe that it permits the President to simply set aside a duly-enacted, generally-applicable statute. That argument is no different than John Yoo’s argument regarding the federal torture statute.

  7. John,

    A question: if a detained member of al-Qaeda possesses knowledge necessary to prevent a devastating attack on the United States, does the President’s inherent constitutional authority enable him to permit a CIA interrogator to torture the detainee without fear of prosecution under the federal torture statute? If not, why is the situation different when the President determines killing an American abroad is necessary to prevent a similar attack, despite the foreign-murder statute?

  8. Whether or not Kevin or Deborah are right on the de jure legal regime, in the absence of Congressional action, a criminal prosecution, a civil liability case proceeding or other limiting feature (all absent in the US), the de facto legal regime is one where the CIA and the President exercise said power with impunity as a matter of domestic law. As for the torture, we are again in a situation of impunity (whether or not there is legal immunity). I think that is the much more difficult issue personally.

  9. Kevin,

    I think my second comment answers your questions. I would expand on that point by clarifying, as the Supreme Court clarified in Hamdi, that the AUMF should be interpreted as authorizing basic powers of war. Torture is not one of those powers and is therefore not impliedly authorized by the AUMF. Killing a member of an enemy armed force, or even a civilian taking a direct part in hostilities, is within those basic powers and is therefore authorized.

    Additionally, the AUMF does not directly provide the “armed forces” with any authority. It provides the President in his role as Chief Executive and Commander-in-Chief (per the preamble) with authority to use military force. It does not limit his discretion to use of the armed forces. And it is fair to interpret “military force” to include both traditional and non-traditional military activities. That is why I say that engaging the CIA in traditional military activities is a technical violation of covert action authority and does not remove public authority justification per the AUMF.

    Again, I don’t necessarily believe this is wise policy. But we are talking law, not policy.

  10. It most certainly limits his discretion to the armed forces. That’s why the section containing the language authorising him to use force against AQ and associated forces is entitled “Authorization For Use of United States Armed Forces.” Nor is my interpretation somehow idiosyncratic — the OLC obviously agrees, which is why it does not base the CIA’s ostensible public authority to kill on the AUMF.

  11. Ben,

    I couldn’t agree with you more. In fact, I recently asked someone if federal courts should track national practice rather than international law in the federal common law of public official immunity. He prefers international law. I prefer not allowing suits against foreign officials under circumstances where are own couldn’t be sued. I think that would be a fairer approach, and might lead to some change.

    Best,

    John

  12. Kevin,

    I think reasonable minds can differ and that we both have fair arguments. The textual provision you cite does not replace the fact that Congress also recognized the President’s constitutional authority “to deter and prevent acts of international terrorism” against the United States. I think this must be read in conjunction with the provision you cited, and with the provisions referencing the War Powers Resolution, for which Congress clearly intends a statutory exception. In other words, Congress is arguably supplementing the President’s constitutional authority to use military force against the entities listed therein, not constraining it only to the use of the armed forces. I confess it is an interesting problem of interpretation. I certainly can see your side of it.

    Best,

    John

  13. John,

    Don’t you think Congress was capable of writing “Authorization for Use of Force” instead of “Authorization for Use of United States Armed Forces” — the latter expression being a term of art that excludes the CIA, as the OLC memorandum and White Paper acknowledge? The fact that it would be easier (arguably) to prevent international terrorism if the CIA was able to use force does not justify ignoring the title of the section in which the need to prevent international terrorism is mentioned!

    Also, as I pointed out in a previous post, the reference to the War Powers Resolution only strengthens my interpretation. As you note, the AUMF provides that “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” and that “Nothing in this resolution
    supercedes any requirement of the War Powers Resolution.” But notice what the War Powers Resolution applies to (and only to) — “the introduction of United States Armed Forces into hostilities.”

  14. There is insufficient attention here to the alternative self-defense paradigm. Covert action targeting persons in a manner that is lawful under the international law of self-defense (e.g., against a person who is DPAA, directly participating in armed attacks) is lawful whether or not it is permissible under Ttile 50, since international law is also law of the United States that the President has a duty (and, therefore, competence) to faithfully execute. (see response to Kevin’s prior posting today]
    And in view of the language quoted, would lawful self-defense targetings be “traditional … military activities” within the meaning of the statute?

  15. I should be clearer. Assume for the sake of argument the AUMF only provides authority to use the armed forces. The President creates an armed conflict pursuant to that authority. Does the authority upon which that conflict was created impliedly authorize the President’s use of other agencies that may traditionally be used in support of armed conflict, and in the ways they have been traditionally used in that context. The answer must be yes. So, if the AUMF impliedly authorizes the use other agencies to support an armed conflict created pursuant to it, why couldn’t the CIA support that conflict in any ways it traditionally (and lawfully, meaning not involving torture) has?

    Covert action authority is standing presidential authority to deal with matters related to national security generally. Its provisions are therefore arguably general and may be altered by other specific grants of authority. The AUMF grants the President specific powers to wage war against certain entities, using all the organs of the government as appropriate. That’s why the AUMF indirectly grants the CIA public authority to kill. In my view, this authority is necessarily derivative of the AUMF even if partially based in the President’s general authority over other executive agencies. That’s why I think armed conflicts created pursuant to inherent Article II powers and without statutory authority pose a different and more difficult problem.

    Statutes that clearly contemplate specific limits on wartime authority, such as the pre-9/11 FISA, do limit presidential authority in armed conflict. The covert action statutes do not mention war or armed conflict. One could argue that the general “national security” objective of covert operations includes matters of national security in (not merely related to) armed conflict. I would distinguish between special paramilitary activities directed against the enemy taken within the context of armed conflict, and those supporting but not intrinsically an aspect of said armed conflict. In the former case, the CIA may target and kill members of an enemy armed force regardless of their nationality.

  16. John,
    I see that comparativist path and it seems that would have some promise. I think the Italian torture case would be of interest where the foreigners were prosecuted albeit in absentia but the Italiam government officials were not under Italian visions of official immunity. The Belgian Case gives some hints of the domestic law paths suggesting little or no official immunities in domestic cases. Because we do not do prosecutions of high-level folks the qualified immunity doctrines in the criminal space are not very defined by decisions in the US from what I have seen. Cases like Scooter Libby or the Watergate types or the risks Nixon faced suggest that de jure immunity regimes may be very narrow or not exist (following the idea of the Belgian case) in the US, but because we do not do them there is a de facto legal regime of immunity. I would prefer to go through another tack with torture. Here we have the Abu Ghraib prosecutions of low level military people under the UCMJ. That at least says that we do prosecute and if I remember right Pohl deliberately excluded evidence of higher up to suit level “orders” as irrelevant – insulating the suits in the evidentiary decisions (another part of the de facto legal regime). But, the fact of the prosecutions changes the question for me to how high up we go. That is the internal change I keep working on as otherwise protestations of a de jure absolute ban on torture by the US are hollow and probably lies from a de facto perspective.

  17. Kevin, this comment thread has now moved in a different direction, but to respond to your question: Yes, you are right, DOD actions would be fine. However, does your argument imply that all CIA drone strikes against al-Qaeda under Title 50 are, in a sense, ultra vires? If traditional military activity includes actions undertaken during an armed conflict, and Title 50 excludes traditional military activity, then the president cannot rely on Title 50 as an authority for CIA actions against al-Qaeda (since we are engaged in an armed conflict against al-Qaeda). I think that’s what I was getting at.

  18. John’s point about the AUMF authorizing conduct by the President (in Section 2(a): “the President is authorized”), as opposed to DOD, CIA, Homeland Security, the IRS, is important — and so are the express recognitions by Congress that it is “both necessary and appropriate that the United States exercise its rights to self-defense” (self-defense paradigm) and “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States (self-defense paradigm and Article II, Section 3 of the U.S. Constitution [faithfully execute the “Laws”]). The President has constitutionally-based authority to use entities within the Executive branch unless Congress has placed a limit on their use and the limit is constitutionally appropriate. The real issue here is not whether the CIA has authority but whether Congress has placed a limit on presidential use of the CIA and the limit is constitutionally lawful and appropriate!

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