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

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.