A Response to Bobby Chesney — Part II (Article II)

by Kevin Jon Heller

In the first part of my response to Bobby, I argued (after meandering around a bit) that Title 50’s “fifth function” provision cannot be used to authorise the CIA to kill Americans overseas — a necessary condition of any argument that the CIA is entitled to a public-authority justification with regard to 18 USC 1119, the foreign-murder statute. (Bobby kindly responds here.) I thus ended that post by asking where else that authority might be found.

Which brings me to the second argument Bobby makes: namely, that the President’s authority to permit the CIA to kill Americans overseas derives from Article II, Section 2 of the Constitution, which deems him the Commander-in-Chief of the armed forces. Here is what Bobby writes:

OK, fine, but aren’t covert action programs bound to comply with federal statutes, including 1119?

They sure are, and it is important to the continuing legitimacy of the covert-action instrument that it be subject to American law in this way. But the question remains: Does the covert drone strike program violate 1119 as applied to al-Aulaqi? Kevin argues that it does because the AUMF should be read to exclude CIA, and thus that section 1119 is violated, and thus that the requirement that covert action programs comply with statutes is violated too. I don’t agree, however, for I don’t think the AUMF is the only possible domestic law explanation for the CIA’s role; Article II likely applies here as well, and performs the same function as the AUMF in this respect.

There are two ways to read Bobby’s argument. The first is that the President’s Article II authority simply empowers him to ignore duly-enacted federal statutes like the foreign-murder statute. That is John Yoo’s position, encapsulated so memorably when he said, with regard to the federal torture statute, that the President could authorise an interrogator to crush the testicles of a detained terrorist’s child if he felt it was necessary to protect the United States. I doubt Bobby shares Yoo’s sentiments.

The second way to read Bobby’s argument is as follows: (1) the President cannot rely on Article II to violate duly-enacted federal statutes; but (2) he can rely on his Article II authority to authorise the CIA to kill Americans overseas, which means (3) the CIA has the same public authority to kill that the military has under the AUMF; therefore, (4) the CIA is no less entitled than the military to the public-authority justification with regard to the foreign-murder statute.

That is a much more sophisticated argument, and no doubt the one that Bobby endorses. Unfortunately, once we understand the nature of the public-authority justification, it’s simply a more sophisticated way of arguing that Article II permits the President to violate a duly-enacted statute.

To begin with, recall 50 USC 3093, which provides that “[t]he President may not authorize the conduct of a covert action… unless the President determines such an action is necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States, which determination shall be set forth in a finding.” There is no question that the President could not use Article II to authorise the CIA to kill Americans overseas without making the finding required by section 3093; the use of lethal force is clearly not  an activity “the primary purpose of which is to acquire intelligence, traditional counterintelligence activities,” which section 3093(3)(1) exempts from the definition of covert action and thus from the reach of section 3093 as a whole. And that means an Article II presidential finding authorising the CIA to kill Americans overseas is subject to section 3093(a)(5), which provides that “[a] finding may not authorize any action that would violate the Constitution or any statute of the United States.” (Bobby doesn’t disagree with this point.)

The question, then, is whether such an Article II finding would, in fact, be authorising covert action that violates 18 USC 1119, the foreign-murder statute. Here is where Bobby’s argument is clever: the argument is not that such a finding would authorise the CIA to violate the foreign-murder statute, but that such a finding would provide the CIA with the public authority it needs to be entitled to a public-authority justification in a foreign-murder prosecution. Doesn’t that argument work, just as it works for the military under the AUMF?

No, and here’s why: in order to provide the CIA with a public-authority justification for killing Americans overseas, the President has to authorise the CIA to violate the foreign-murder statute. That may seem like a strange claim, but it is actually Criminal Law 101. The “public-authority justification” is an affirmative defense, like all justifications. Indeed, the White Paper admits as much when it bases the availability of the public-authority justification on section 3.03 of the Model Penal Code (p. 9): section 3.01 of the Model Penal Code specifically considers the “execution of public duty” justification in section 3.03 to be an affirmative defense. Federal courts have also uniformly considered the public-authority justification an affirmative defence. See, for example, US v. Baptista-Rodriguez, 17 F.3d 1354, 1369 (11th Cir. 1994) (“With this affirmative defense, the defendant seeks exoneration based on the fact that he reasonably relied on the authority of a government official to engage him in a covert activity.”)

Why is it important that the public-authority justification is, by the White Paper’s own admission, an affirmative defence? Because affirmative defences admit that the defendant violated the criminal statute in question. As Gardner and Anderson put it in their treatise:

An affirmative defense is any defense that assume the complaint or charges to be correct but raises other facts that, if true, would establish a valid excuse or justification or a right to engage in the conduct in question. An affirmative defense does not concern itself with the elements of the offense at all; it concedes them. In effect, an affirmative defense says, “Yes, I did it, but I had a good reason.”

Let’s assume, therefore, that a CIA agent who kills an American overseas is, in fact, entitled to a public-authority justification because a presidential finding authorises the CIA to do so. That does not mean the CIA agent has not violated the foreign-murder statute. On the contrary, it admits that he has. He simply cannot be convicted of violating the statute because had a good reason to do so — a public-authority justification (the President told him he could).

The fact that the public-authority justification necessarily admits the defendant violated the foreign-murder statute is critical, because it explains why any attempt by the President to use his Article II authority to provide the CIA with a public-authority justification for killing Americans overseas requires him to authorise the CIA to violate the foreign-murder statute: the CIA is entitled to a public-authority justification with regard to the foreign-murder statute only insofar as the President has authorised it to do precisely what the statute prohibits — killing Americans overseas. If the President has not authorised the CIA to kill Americans overseas, the CIA obviously cannot avoid a foreign-murder prosecution by arguing that it has the public authority to kill them. But authorising the CIA to kill Americans overseas in order to provide the CIA with an affirmative defence to a foreign-murder prosecution is the same as authorising the CIA to violate the foreign-murder statute. Differently put, the CIA is entitled to a public-authority justification when it kills an American oveseas precisely because the President has authorised it to violate the foreign-murder statute.

At this point, you may be wondering why the AUMF is any different. Doesn’t Congress have to authorise the military to kill Americans overseas for the military to invoke the public-authority justification in a foreign-murder prosecution? And doesn’t authorising the military to kill Americans overseas equally violate the foreign-murder statute? So why can Congress do what the President cannot?

The answer to the first question is yes. Because the public-authority justification is an affirmative defence, the AUMF has to authorise the military to kill Americans overseas in order to provide the military with a public-authority justification for doing so. But the answer to the second question is no. The foreign-murder statute was enacted in 1994; the AUMF was enacted in 2001. The rule of statutory construction known as leges posteriores priores contrarias abrogant (“Subsequent laws repeal those before enacted to the contrary”) —  which is well-established in federal law; see, for example, District of Columbia v. Hutton, 143 US 18 (1892) — indicates that the AUMF implicitly amended the foreign-murder statute to permit the military to kill Americans overseas. So Congress is well within its rights to authorise the military to kill Americans overseas, notwithstanding the foreign-murder statute.

And here’s the important point: the President does not share Congress’s power to implicitly amend duly-enacted statutes. On the contrary, Article II, Section 3 of the Constitution specifically requires the President to “take Care that the Laws be faithfully executed.”

Unless, of course, you believe that Article II, Section 2 empowers the President to ignore any duly-enacted statute he believes conflicts with his obligations as Commander-in-Chief. But then you are no different than John Yoo, and then there is no reason to distinguish between, say, the foreign-murder statute and the federal torture statute. The President can simply do whatever he wants.

http://opiniojuris.org/2014/09/08/response-bobby-chesney-part-ii/

10 Responses

  1. Thanks for the post . It seems that the respectable author of that post, and his distinguished intellectual opponent, don’t seem to understand a basic doctrine in law and especially criminality (with all due respect).

    When dealing with such ” affirmative defense “, one deals with an ad hoc reason or situation, were due to enforced circumstances, an official or officer, had to violate the law, act criminally, and kill somebody.

    It can be only a very stressed situation, ad hocly improvised in front of him: being robbed, being raped, had in a matter of seconds to save lives and so forth…..

    But, it can never be, a priori , a well established and well regulated law, provision, or administrative excuse whatever one .

    I mean, you can’t excuse murder, by arguing, affirmative defense, while such doctrine ( president authorization ) is hanged or suspended over and over, as a routine act.

    Why ? because if it is a routine, and a priori one, it must be transparently legislated and acted. It must be carefully designed and calculated, like every other law, action, and provision.

    The same argument, brought in front of the Israeli supreme court, concerning the right to torture or conduct ” enhanced interrogation “, but for the same reasons mentioned, the supreme court rejected the penal code as a basis for such justifications of such nature.

    Penal code, can never be an a priori source of power, for well legislated and established administration.

    Here by , from the verdict , quoting professor anker :

    ”Necessity is an after-the-fact judgment based on a narrow set of considerations in which we are concerned with immediate consequences, not far-reaching and long-range consequences, on the basis of a clearly established order of priorities of both means and ultimate values… The defense of Necessity does not define a code of primary normative behaviour. Necessity is certainly not a basis for establishing a broad detailed code of behaviour such as how one should go about conducting intelligence interrogations in security matters, when one may or may not use force, how much force may be used and the like (Enker, “The Use of Physical Force in Interrogations and the Necessity Defense”, in Israel and International Human Rights Law: The Issue of Torture 61,62 (1995)).

    Thanks

  2. Kevin,

    I’ll repeat my comment from an earlier thread [with updates in brackets]:

    Assume for the sake of argument the AUMF only provides [express] 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 [of government] 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, including the use of lethal force?

    Covert action [and fifth function] 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 later specific grants of authority. The AUMF grants the President specific powers to wage war against certain entities, using the armed forces (expressly) all the organs of the government (impliedly) as appropriate. That’s arguably 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 the executive branch. That’s also why I think armed conflicts created pursuant to inherent Article II powers and without statutory authority pose a different and more difficult problem in this area [one more in line with your argument].

    Statutes that clearly contemplate specific limits on wartime authority, such as the pre-9/11 FISA, do limit presidential authority in armed conflict [even if pursuant affirmative general congressional authorization to wage war]. The covert action [and fifth function] statutes do not mention war or armed conflict. One could argue that the general “national security” objective of these statutes includes matters of national security in the context of (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. [In the latter, the general authorizations and prohibitions of federal law apply.]

  3. Assume for the sake of argument the AUMF only provides [express] authority to use the armed forces.

    We don’t have to assume that. That’s what the AUMF says.

    The President creates an armed conflict pursuant to that authority.

    The President cannot create a non-international armed conflict simply by using the armed forces. The existence of NIAC is determined by the hostilities, not by the subjective understanding of the parties.

    Does the authority upon which that conflict was created impliedly authorize the President’s use of other agencies [of government] 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.

    The President’s authority to use other agencies of government in an armed conflict does not come from the AUMF. If it exists, and I assume in my analysis that it does, it comes from Art. II.

    The AUMF grants the President specific powers to wage war against certain entities, using the armed forces (expressly) all the organs of the government (impliedly) as appropriate.

    You have offered no argument as to why a Congressional authorisation to use the military to combat al-Qaeda necessarily authorises the President — independent of his Art. II authority — to use all the organs of government. Had Congress wanted to allow the President to authorise all the organs of government to use force abroad, it could very easily have said so. Indeed, it is difficult to imagine Congress accepting the argument that anytime it tells the President he can use the armed forces to prosecute a conflict, it automatically authorises the President to prosecute that conflict with the CIA.

    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.

    I would distinguish between the armed forces, whose use of force is authorised by the AUMF, and the CIA, whose of force is not authorised by the AUMF and whose authority, therefore, must come from Art. II.

    Finally, I note that my argument is not exactly radical. Both the memorandum and the White Paper clearly assume that the AUMF does not authorise the CIA to use force overseas. If the AUMF did, the White Paper would have been unnecessary.

  4. Kevin,

    You can’t have it both ways. You cannot argue that the AUMF only authorizes the use of the military but then argue that it does not thereby impliedly authorize the use of other agencies in support of that effort. It is not strictly an Art. II argument, whether the White Paper offers that view or not.

    Then again, I didn’t agree with or allow my professional judgment to be limited by OLC memos drafted by John Yoo either.

    Specifically, you say:

    “The President cannot create a non-international armed conflict simply by using the armed forces. The existence of NIAC is determined by the hostilities, not by the subjective understanding of the parties.”

    While I agree with you from the international law perspective, I am not sure this is entirely accurate from the U.S. domestic law perspective, which is the relevant frame of reference here.

    You say:

    “You have offered no argument as to why a Congressional authorisation to use the military to combat al-Qaeda necessarily authorises the President — independent of his Art. II authority — to use all the organs of government. Had Congress wanted to allow the President to authorise all the organs of government to use force abroad, it could very easily have said so. Indeed, it is difficult to imagine Congress accepting the argument that anytime it tells the President he can use the armed forces to prosecute a conflict, it automatically authorises the President to prosecute that conflict with the CIA.”

    Actually, I said it is congressional authorization coupled with Article II that creates this authority. You have offered no reason why the AUMF does not impliedly authorize the use of the State Department, CIA and other agencies in support of the matters expressly authorized therein.

    You say:

    “I would distinguish between the armed forces, whose use of force is authorised by the AUMF, and the CIA, whose of force is not authorised by the AUMF and whose authority, therefore, must come from Art. II.”

    This is an overly simplistic analysis. When Congress declares war it authorizes the use of all agencies of government in that effort. Just because Congress authorizes the use of military force we should not read the authority impliedly authorized more narrowly.

  5. You’ll need to explain how I’m having it “both ways.” My argument is straightforward: an act of Congress authorising the President to use the US Armed Forces authorises the President to use the US Armed Forces. You, by contrast, continue to insist that Congress cannot simply authorise the President to use the US Armed Forces, but must also authorise the President to use any other agency of the government, as well. You provide no legal support for your position; it seems to simply reflect your political preference. Nor do you explain why, if your position is so obvious that it needs no support, the OLC agrees with me and not you.

    Here’s a hypothetical question: let’s say another section of the AUMF said “And Congress prohibits the President to use federal funds to enable the CIA to use force.” Would such a provision be null and void? It seems to me you have to answer yes; otherwise, your position is that unless Congress specifically refuses a power to the President, its authorisation of different powers necessarily includes all of them. And I know of no canon of statutory construction that supports such a view.

  6. Kevin made the important point in a prior reply to this series of postings: the AUMF authorized the President! And the AUMF expressly recognized the right of the U.S. re: “self-defense”!
    Where is the express limitation of presidential authority under the U.S. Const., art. II, section 3 (to faithfully execute international law)? Where in any act of Congress? Could an act of Congress limit such constitutionally-based presidential authority to engage in lawful measures of self-defense? In any event, isn’t the AUMF last-in-time vis a vis prior federal statutes?
    Since the United States is presently using armed force in Iraq against ISIS with the consent of the Iraqi regime and under international law as permissible measures of collective self-defense, where is the limit on presidential use of the CIA with respect to such action in Iraq? And since the measures of armed force trigger the laws of war and the conflict is now an IAC, where is the limit of presidential authority to use members of the CIA for intelligence gathering during an IAC?

  7. Kevin,

    Why do you try to make everything about someone’s political perspective when they disagree with you? I am sure you haven’t read it but I have published an entire article (a lead article in Temple Law Review) arguing that when the President is given authority to wage war, he is bound by relevant and directly applicable domestic and international law. If I thought the statutes under consideration here clearly applied to armed conflict created pursuant to congressional authority, I would agree with you. They do not clearly do so. So I am merely open to another point of view. I have even admitted that another interpretation of “national security” functions to include armed conflict is possible and would lead to your result. That’s called balanced analysis. I don’t engage in result-oriented analysis.

    Additionally, I have consistently stated that I do not necessarily believe any of this is good policy. In fact, I believe many current and former military lawyers would agree that using the CIA to in part accomplish the mission of the armed forces: to fight and win the nation’s wars, is bad policy. They should be an intelligence agency, nothing more.

    Your continued argument that the White Paper agrees with your general approach but not your specific conclusion merely shows that you are cherry picking the aspects of it that support your argument, then asserting that the aspects that don’t are deeply flawed and support unlimited Art. II authority to violate federal law. Nobody has argued that. I don’t think it is an accurate statement, at least not after certain folks left the Office of Legal Counsel.

    That general grants of authority to wage war include countless implied powers (not inconsistent with the grant or other directly applicable laws of Congress) to conduct it is how the Supreme Court has interpreted such authority for over two centuries. Given the complexity of war, Congress cannot expressly authorize every aspect of it. Given the complexity of government, Congress cannot expressly authorize every act a federal agency may need to take in support of a broader war effort. Some of that is controlled to an extent by appropriations. For me, the power to involve those agencies derives not only from Art. II, but also from a grant of authority to initiate or wage war. If the White Paper disagrees, it may be because they want to maintain a stronger view of Art. II than I am willing to support. That doesn’t mean that my approach to the AUMF is wrong. In fact, it may be the correct middle ground between your excessively narrow interpretation of the AUMF and the executive branch’s excessively broad interpretation of Art. II.

    All of this provides a direct and easy answer to your questions. A direct statutory restriction on the President that clearly intends to constrain a general grant of authority is valid and limits the President’s lawful authority and those subordinate to him (See Little v. Bereme). None of that proves that general grants of authority shouldn’t be interpreted to imply the power to use all of the agencies of government in the ways Congress understands them to be used in support of a war effort. As I said, the pre-9/11 FISA also constrained the President’s implied war powers to conduct domestic surveillance, and the War Crimes Act and applicable international law should have prevented torture as well as cruel and inhuman treatment of detainees.

  8. That is an actual answer. I disagree, but at least it gives us something to argue about.

    You are, however, caricaturing my argument — badly. I have not cherry-picked anything from the White Paper. I have simply noted that on the point you and are I discussing — whether the AUMF provides the CIA with public authority — the OLC does not agree with you. I obviously don’t agree with the White Paper’s ultimate conclusion; that is why I wrote the post. And I have obviously never claimed that the White Paper’s argument implies that Art. II gives the President “unlimited… authority to violate federal law,” given that the White Paper doesn’t even mention Art. II.

  9. Very well, the debate continues,

  10. “(5) A finding may not authorize any action that would violate the Constitution or any statute of the United States.”

    So we have to assume that targeting Al-awlaki the father was proper to get there. What about hitting the son if we assume the son was not a proper target. Does the Chesney rationale make room for that killing under the political justification.

    Now, in the wrongful death action by the family is the court going to erect another doctrinal creation to prevent the case going forward saying political justification, for example, is a political question?

    Assume the targeting was improper. Does the DOJ have the will to investigate that point and, if so, use this complex of laws to charge the CIA person and those who authorized it for murder and conspiracy to commit murder? The evidence is most likely no.

    So these battles about the de jure legal regimes as sterile I think as the de facto regime trumps both approaches if Chesney and Heller, no matter how broad or narrow the interpretation.

    What if Al-awlaki was targeted because he was sleeping with the sister if the President and he did not think it was good for his image. He could dress it up. Would the de facto regime be willing to charge the President or the CIA operative with that murder and conspiracy to commit murder? The answer again is no as it would be dressed in national security jargon or securitese and the structural forces would not reach that as such a prosecution is inconsistent with ambition and going along to get along.

    Another reason to change the national security law cesspool.

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