18 USC 1119 Foreign Murder and Obama Targeted Kill White Paper

Back in February, when the “White Paper” was first “leaked”, Marcy wrote a fantastic article entitled Article II or AUMF? “A High Level Official” (AKA John Brennan) Says CIA Can Murder You on the issues of Article II authority versus AUMF authority in relation to the Obama targeted killing program. First off, let me say that the the lack of recognition of the presence of both these these respective authorities in the targeted killing program, even among legal commentators I respect greatly, is one of, if not the, most discouraging aspects of the discussion being had. Sadly, the big filibuster by Sen. Rand Paul did not necessarily improve the understanding, and even the New York Times continues to propagate the misdirection and misinformation peddled by the Obama Administration.

I wish to discuss the interaction of the statutory law contained in 18 USC 1119, the “Foreign Murder statute”, with the greater Obama Administration Targeted Killing Program, and the White Paper foundation for it. Specifically I want to point out the circular and disingenuous way in which the White Paper tries to bootstrap itself, and the Administration, around criminal liability for murder in the case of a targeted US citizen such as Anwar Awlaki. Frankly, Marcy let fly with another must read post on 18 USC 1119 and the White Paper yesterday in the wake of the New York Times sop to the Administration, and it filets both the White Paper, and the NYT, open at the seams.

The most important principle to understand about the White Paper’s discussion of 18 USC 1119 is, as Marcy noted, that it is impertinent if the the law of war (formally the “Law of Armed Conflict” or “LOAC”) is truly in play. In short, if the Administration is using the AUMF – military force – in an active battle situation, there is no need for further discussion, whether Mr. Awlaki is a US citizen or not. That, of course is diametrically opposed to what the facts were at the action point with Awlaki, and that we now know.

The truth is the Administration used a civilian agency, the CIA, to kill a US citizen without judicial due process, far from the “hot battlefield” and that is why such a deliberate attempt was made in the White Paper to obfuscate the legal basis for their targeting and killing, and why such a seemingly inordinate time was spent in the White Paper on a traditional criminal law statute, 18 USC 1119.

The statutory language of 18 USC 1119 states:

(a) Definition. – In this section, “national of the United States” has the meaning stated in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)).
(b) Offense. – A person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113.
(c) Limitations on Prosecution. – (1) No prosecution may be instituted against any person under this section except upon the written approval of the Attorney General, the Deputy Attorney General, or an Assistant Attorney General, which function of approving prosecutions may not be delegated. No prosecution shall be approved if prosecution has been previously undertaken by a foreign country for the same conduct.
(2) No prosecution shall be approved under this section unless the Attorney General, in consultation with the Secretary of State, determines that the conduct took place in a country in which the person is no longer present, and the country lacks the ability to lawfully secure the person’s return. A determination by the Attorney General under this paragraph is not subject to judicial review.

Hard to look at the face of 18 USC 1119 and not see why it is so germane to the targeted killing discussion. But you need not take my word for it, this is why the previously somewhat arcane statute takes up five full pages, nearly a third of the discussion, in the White Paper. It is also, as Marcy pointed out in back in February, why Judge Colleen McMahon of the Southern District of New York, who unlike the commentariat, has seen the classified filings, went out of her way to focus on the intersection of the targeted killing program with 18 USC 1119 when she said in her January 2, 2013 opinion:

Assuming arguendo that in certain circumstances the Executive power extends to killing without trial a citizen who, while not actively engaged in armed combat against the United States, has engaged or is engaging in treasonous acts, it is still subject to any constraints legislated by Congress. One such constraint might be found in 18 U.S.C. § 1119, which is entitled “Foreign murder of United States nationals.” This law, passed in 1994, makes it a crime for a “national of the United States” to “kill or attempt to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country.” The statute contains no exemption for the President (who is, obviously, a national of the United States) or anyone acting at his direction. At least one commentator has suggested that the targeted killing of Al-Awlaki (assuming it was perpetrated by the Government) constituted a violation of the foreign murder statute. Philip Dore, Greenlighting American Citizens: Proceed with Caution, 72 La. L. Rev. 255 (2011).

And, as both Judge McMahon and Marcy noted, “Presidential authorization does not and cannot legitimize covert action that violates the constitution and laws of this nation.” Well, no it cannot. And that is also consistent with the “Take Care Clause” in Article II, Section 3 of the Constitution requiring a President to insure that all laws (read statutes) are “faithfully executed”. That means the President cannot simply abrogate or ignore the clear language or 18 USC 1119.

So, if the target, in this case Awlaki, was killed by a US civilian action in a foreign country and away from a, as Judge McMahon put it, “hot field of battle”, then the Administration has a problem. Houston, the Administration has a problem with 18 USC 1119.

Let’s see how strong their justification for avoidance on 1119 is as laid out in the White Paper. In a word, it is weak sauce indeed. The White Paper relied on two commingled ideas to get around 18 USC 1119, “public authority justification” and traditional criminal law enforcement justifications (for instance self defense and necessity) as embodied in domestic case precedent. So, are those justification issues bars to prosecution for the CIA drone operators and their superiors up the food chain? No.

The NYT article described the rationale of the OLC Awlaki Kill Memos, Marty Lederman and David Barron, as follows:

Now, Mr. Barron and Mr. Lederman were being asked whether President Obama’s counterterrorism team could take its own extraordinary step, notwithstanding potential obstacles like the overseas-murder statute. Enacted as part of a 1994 crime bill, it makes no exception on its face for national security threats. By contrast, the main statute banning murder in ordinary, domestic contexts is far more nuanced and covers only “unlawful” killings.

As they researched the rarely invoked overseas-murder statute, Mr. Barron and Mr. Lederman discovered a 1997 district court decision involving a woman who was charged with killing her child in Japan. A judge ruled that the terse overseas-killing law must be interpreted as incorporating the exceptions of its domestic-murder counterpart, writing, “Congress did not intend to criminalize justifiable or excusable killings.”

And by arguing that it is not unlawful “murder” when the government kills an enemy leader in war or national self-defense, Mr. Barron and Mr. Lederman concluded that the foreign-killing statute would not impede a strike. They had not resorted to the Bush-style theories they had once denounced of sweeping presidential war powers to disregard Congressionally imposed limitations. (emphasis added)

So, Lederman and Barron found justifications and then boot strapped those into their pre-desired result. First, let’s look at the “public authority justification” component. Again, that would have solid weight if it were a military strike, but the CIA stands in different shoes. Kevin Jon Heller (who wrote that first pesky 2010 blog post on 18 USC 1119 that caused Lederman and Barron such “uneasiness”), also weighed in yesterday on the nonsense pitched by Mazzetti, Savage and Shane in the NYT. Here is the key take from Professor Heller on the “public authority justification” claim:

The CIA is obviously not an “organized armed force, group, or unit” that is under the command of the US military; the CIA is, in its own words, “an independent US Government agency responsible for providing national security intelligence to senior US policymakers.” Nor are the CIA’s drone strikes controlled by the military (which would not satisfy Art. 43 anyway). The interesting provision is paragraph 3. The CIA may be an “armed law enforcement agency,” but it still does not satisfy Art. 43(3): first, it has not been “incorporated” into the US’s armed forces, because incorporation requires national legislation subjecting the agency to military control (see the ICRC Commentary to AP I, para. 1682); and second, the US has not informed al-Qaeda and its associated forces that it has been so incorporated — indeed, as widely noted, the US has never even formally acknowledged that the CIA drone program exists.

In an IAC, then, CIA drone operators would not have the right under IHL to kill anyone. And it is difficult to see how the situation could be any different in a NIAC. Arguing that the rules of IAC apply analogically in NIAC, as the US often does – it borrows the concept of an al-Qaeda “associated force,” for example, from the IAC concept of co-belligerency — is no help, for all the reasons just mentioned. So the US would have to argue that the category of privileged combatants in NIAC is somehow actually wider in NIAC than in IAC, an idea for which there is no precedent in state practice and little if any support in conventional international law. (An excellent Australian scholar, Ian Henderson, has argued that a state can authorize anyone it wants to use lethal force in a NIAC. I don’t find his argument persuasive, particularly in the context of a transnational NIAC where a state is using force on the territory of many other states, but interested readers should check out his article.)

This is a critical conclusion. If a CIA drone operator does not possess the combatant’s privilege in the US’s “NIAC” with al-Qaeda and its associated forces, the US cannot plausibly argue that — to quote another paragraph in the White Paper (p. 15) — killing someone like al-Awlaki “would constitute a lawful killing under the public authority doctrine” because it was “conducted in a manner consistent with the fundamental law of war principles governing the use of force in a non-international armed conflict.” Such a killing would not be “consistent with the “the fundamental law of war principles governing the use of force,” because the absence of combatant’s privilege means that a CIA drone operator has no right under IHL to use any force at all. As a result, a CIA drone operator prosecuted for violating the foreign-murder statute would not be entitled to a public-authority defense – at least insofar as the US purports to base his or her public authority from IHL’s recognition of the right of privileged combatants to kill.

Now that is a fairly long segment I borrowed from Kevin, but there is much more at his superb post, please do go digest all of it. Suffice it to say, for the reasons stated, the “public authority justification” just does not hold up as described in the White Paper and the New York Times paean to Lederman, Barron and the Administration.

But what about that linchpin “1997 district court decision involving a woman who was charged with killing her child in Japan” they found that permitted “excusable killings” that I bolded above? The official name and cite of the case is United States v. White, 51 F.Supp 2d 1008 (EDCA 1997), and it is mentioned a grand total of twice, as a secondary back up citation, in the White Paper. But the NYT pitched the spiel that discovery of this little known, impossible to find online, non-binding case from the Eastern District of California makes everything copacetic. Maybe the NYT did not read the case, as they did not mention or cite its name in their article, but I have read US v. White, and it does nothing of the sort claimed by the NYT and the Administration.

In fact, if anything, White stands for the fact that 18 USC is constitutional on its face, there are no Due Process denials occasioned by the statute, and that it properly encompasses the traditional federal homicide statutes contained in 18 USC 1111, 1112, and 1113 respectively. If anything, White supports the proposition that the Administration has a big problem with 18 USC 1119. As evidence, I am attaching a pdf copy of the US v. White decision so that one and all, who may not have ready access to dusty old reporters in a law library, may see it in all its glory (actually quite lack thereof). [UPDATE: Kevin Jon Heller just sent this link for White online. It is easier to read than my scan.]

I would like to make one last point, and it is a pretty important one. All these justifications, defenses, excuses – whatever term the Administration bandies about (and they have used all three of those) – as used in the White Paper and NYT article, even the “public authority justification”, are what are known in criminal law as “affirmative defenses”. But affirmative defenses are not a bar to prosecution or criminal culpability in the least; they have to be pled by the criminal defendant once charged, and then established to the jury at trial. And ask any practicing criminal defense attorney, juries are pretty skeptical of such affirmative defenses generally.

Now, in closing, I think we ought to be honest about the nature of this discussion. Fact is, the Obama Administration is never going to actually charge their own people, it is not about that; it is about the root legality of the activity. And the problem is, at root, there is no way to say that CIA performed extrajudicial execution of American citizens away from the hot battlefield is legal in the face of 18 USC 1119. The Obama Administration is trying to baffle the public with legalistic bull, and is trying to hide their illegal pea under a moving set of inapplicable and inapposite legal shells. But, in the end, it does simply does not hold water.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
38 replies
  1. orionATL says:

    damn, bmaz!

    this little legal/political essay gets to the heart of the matter.

    here’s the kernel, as i see it:

    “… The truth is the Administration used a civilian agency, the CIA, to kill a US citizen without judicial due process, far from the “hot battlefield” and that is why such a deliberate attempt was made in the White Paper to obfuscate the legal basis for their targeting and killing, and why such a seemingly inordinate time was spent in the White Paper on a traditional criminal law statute, 18 USC 1119…”

    what i think the obey-admin boys have on their hands now is a colossal constitutional and legal error authorized (in fall 2009) by a tragically and inexcusably inexperienced president impatient to protect his political standing with the american people on “national security” issues, egged on and reassured by a chronically brutal, inept cia

    how does our leaders, historically, work their way out of such situations, cf. iran-contra scandal,

    by preparing doj/olc legal excuses combined with public lying by those elected officials.

  2. thatvisionthing says:

    Hi bmaz, I’m starting to read this, but just going this far —

    (c) Limitations on Prosecution. – (1) No prosecution may be instituted against any person under this section except upon the written approval of the Attorney General, the Deputy Attorney General, or an Assistant Attorney General, which function of approving prosecutions may not be delegated.

    — isn’t it game over? Eric Holder. When the murderer is the president and his henchman is the DOJ, the statute doesn’t quite address that situation, right? The only person with standing to prosecute is onboard the Murder on the White House Express.

  3. orionATL says:

    what the obey-admin boys are doing, with the execrable help of editors of the
    the nit-wit times,

    is conducting a “public trial” of anwar al-awlaki with only government evidence being adduced.

    the public trial was a standard feature of russian
    citizens’ experiences in the soviet union of the 20’s thru the 80’s.

    “national security” states like the ussr then and our united states now can be counted on to use the “public trial” as a means to defend the legitimacy of their depredations of the life or liberty of citizens who run afoul of specific powerful bureaucrats in that national security state.

  4. beowulf says:

    @thatvisionthing:
    As you’ll recall when Deputy AG James Comey appointed Patrick Fitzgerald special prosecutor in CIA leak case, the special counsel stands in the shoes of the Attorney General.

    “At your request, I am writing to clarify that my December 30, 2003, delegation to you of “all the authority of the Attorney General with respect to the Department’s investigation into the alleged unauthorized disclosure of a CIA employee’s identity” is plenary and includes the authority to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure…”
    http://mediamatters.org/research/2005/10/24/media-misrepresented-2004-letter-clarifying-fit/134067

  5. thatvisionthing says:

    bmaz, beowulf raised a great point in Marcy’s 1119 post:

    http://www.emptywheel.net/2013/03/09/the-nyt-grants-david-barron-and-marty-lederman-a-mulligan-on-18-usc-1119/#comment-525627

    Curious too how it is a single conspiracy can have one accomplice, the underwear bomber, accused of a federal crime and the other, Awlaki, is accused of an act of war. How does that work? Either they’re both criminal suspects or they’re both enemy combatants.

    Seems to me that’s the kind of have-it-both-ways imagicking that Marcy said the white paper was all about — ?

  6. beowulf says:

    Great piece BMAZ, check out Google Scholar. Its fairly awesome for legal research and its free.
    http://scholar.google.com/scholar_case?case=8942575198463451729&hl=en&as_sdt=2,11

    Of course what makes the OLC memos and the White Paper a sham was that the horse was out of the barn before they were even issued (the first attempt on Awlaki’s life had been in 2009). The Conspiracy to Murder law, which specifically refers to 1119 was violated the day Awlaki was targeted for execution.

    “If two or more persons conspire to violate section 1111, 1114, 1116, or 1119 of this title, and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life.”
    http://www.law.cornell.edu/uscode/text/18/1117

    There was no way the OLC in its memos or Stuart Delery in the White Paper could come back with an honest reading of the law without triggering a shitstorm… Best case scenario, Attorney General Holder puts his foot down and threatens to resign if President Obama didn’t reverse his decision (as AG John Ashcroft and Deputy AG James Comey did w/ President Bush over an illegal wiretapping program), after which, since Alwaki was still alive, no harm no foul.

    Ha, yeah right. Remember, Eric Holder’s endorsed OLC memo that Libya war was illegal was rejected by the President; that Holder didn’t resign the same day is contemptible. Much much easier for Holder, Barron, Lederman and Delery to be co-conspirators instead troublemakers (if not crypto-Republicans). Honestly, this is a legal screwup of the first order. I think John Mitchell in his prison cell would have offered better legal counsel.

  7. beowulf says:

    @thatvisionthing:
    The law allows for the Deputy AG or one of the assistant AGs to appoint a special counsel (just as, for reasons I forget, Deputy AG Comey ended up appointing Fitzgerald). As a practical matter, it will be left to a future Attorney General to appoint a special prosecutor. No statute of limitations on Murder so “future” is a long time.

  8. beowulf says:

    @bmaz:
    Did I mention how awesome Google Scholar is? In 2003, the 5th Circuit cited US v. White and had this to say:

    “To obtain a conviction for conspiracy to kill in a foreign country, the government must prove that: (1) the defendant agreed with at least one person to commit murder; (2) the defendant willfully joined the agreement with the intent to further its purpose; (3) during the existence of the conspiracy, one of the conspirators committed at least one overt act in furtherance of the object of the conspiracy; and (4) at least one of the conspirators was within the jurisdiction of the United States when the agreement was made.”
    US v. Wharton 320 F. 3d 526, 538 (5th Cir., 2003).
    http://scholar.google.com/scholar_case?case=8649249105672390527&hl=en&as_sdt=2,11

  9. thatvisionthing says:

    @bmaz: I got that’s what the letters stood for, see map. Please, ianal, your link goes down to South America and almost seems like a paper-or-plastic choice. Can you just tell me the distinction the White House would want in making it NIAC when it’s clearly IAC just from the map, seems to me? Is it NOT a map question? What does determine IAC/NIAC to begin with? Is it murderer’s choice? Just asking for simple explanation.

  10. thatvisionthing says:

    @beowulf: The law says “may not delegate.” Where do you see Holder can delegate?

    Can you get outside DOJ and executive in a situation like this? Can Congress appoint a special prosecutor, and can Congress clarify the law? Seems to me there must be some recognition generally legally that the guy/s who committed the crime can’t be the one who has to agree to prosecute the crime.

  11. beowulf says:

    @thatvisionthing:
    Honestly, why are we still talking about this? He can delegate to the Deputy Attorney General or one of the Assistant AG (and that person can hire and supervise a special counsel– like James Comey did whe— again, why are we still talking about this?). Bmaz is right, the President controls the Executive Branch so DOJ activities is just paper shuffling while he’s in office. Remember, it wasn’t the DOJ that forced Nixon to resign, it was Congress. One side effect (collateral damage, if you will) of Rand Paul’s filibuster is the light that went off in the heads of GOP congressmen that they had found an issue that, by happenstance, the law and facts were squarely against the Obama Admin.

  12. thatvisionthing says:

    @beowulf: I asked because the plain language bmaz quoted and I quoted says this:

    No prosecution may be instituted against any person under this section except upon the written approval of the Attorney General, the Deputy Attorney General, or an Assistant Attorney General, which function of approving prosecutions may not be delegated.

    Where you’re getting hire-and-supervise a special prosecutor here from, I don’t know, but it sounds like delegating to me, nal. Comey and Fitzgerald don’t seem applicable since Fitzgerald was not investigating or prosecuting this law about murder by an American of an American overseas. Neither was Jaworski. In fact, it seems like a funny clause to put in a law unless you knew a situation like this might arise (had arisen?) and you wanted a bottleneck.

    As for Congress, the law and facts are just as squarely against Bush-R administration too, if the ultimate justification for executive murder is the same as torture, Bush’s 2001 memorandum of notification or some other secret paper they have already refused to show to Congress I lost count of how many times. Is it? Who knows, but that’s the point, it’s all a secret or an illusion or a whitewash, ty nyt. But whether Rs or Ds are in power, it hasn’t made a difference, things only get worse.

  13. Greg Bean (@GregLBean) says:

    There’s a great old saying, “Lies, damned lies, and statistics”, that is kind of appropriate here. Not because this whole shit-fight has anything to do with stats or numbers, but because it is about twisting the information to fit the argument, and removing it from the common man’s level of comprehension.

    I’ve been accused on other posts of being too simplistic, summing up the issue in a phrase, but I like to simplify things to base issues, going to the root of the problem, differentiating symptoms and causes. I think, all too often there is a focus on symptoms and not the root cause.

    I am not criticising your post bmaz, but isn’t it time someone started saying, we have basic standards that the Obama administration has breached, and it is time to stop discussing hair-splitting and recognise that basic liberties have been crucified?

    If one cannot state in a clear and unambiguous fashion in very fwe words what the issue is, one cannot hope to enlist the masses (me and others) to fight for the cause.

    If you, bmaz, had to summarise this post so 300,000,000 people could understand why they should care about it, what 20 words would you choose to do so?

    Maybe I’m naive, but I hope one day you, Marcy, KevinG, Jim and others who have significant statesman-like ethics, putting honour and integrity ahead of hair-splitting deceit, will recast your wondeful arguments into the 20 word pharses that will drive a nation of 300,000,000, and a world that looks to people who can do this, to the heights that good souls can attain when led by visionaries.

    I have a dream!

  14. thatvisionthing says:

    @beowulf: Specifically your reference @7:

    “At your request, I am writing to clarify that my December 30, 2003, delegation to you of ‘all the authority of the Attorney General…'”

    (would have edited @19 but was too late)

    None of the crooks are going to delegate to a special prosecutor anyway or prosecute themselves. So maybe the interesting thing I wrote in @19 is that it’s a funny clause to write into law in the first place. McMahon said 1119 was passed in 1994 — that would be Clinton. What would he — ?

    The pattern with tbtf is preemptive deferred prosecutions as the means to nullify/immunize the crime and clear it from the books. Protection. Maybe you write and pass laws that way too. Name it and immunize it.

  15. thatvisionthing says:

    Plus, above and beyond a law passed by Congress, what about the Constitution itself — Bill of Attainder? In her FOIA ruling, Judge Colleen McMahon wrote four ways presidential murder is illegal:

    http://scotthorton.org/2013/02/18/21813-marcy-wheeler/

    MARCY WHEELER: And that’s one thing that’s interesting, because there’s a section of Colleen McMahon’s opinion which really hasn’t gotten a lot of attention, but she basically says, “Oh, it was illegal.”

    So she, you know, she kind of interrupts what she’s doing, which is purportedly judging on whether or not the government can withhold these FOIA documents, and she says, “Hold on a second. Due process is the most fundamental part of our Constitutional government. That’s part of what the rebels against King George III were fighting for. And it goes back to the Magna Carta.” And she said, “We also in the Constitution have a treason clause which says before you can deny anybody of their citizenship, you have to go to a judge.” She kind of very astutely pointed out that it’s on Article III, meaning it’s part of the courts, this guarantee that before the executive branch deprives you of your citizenship, you have to go before a judge.

    And then she looked at a couple of more pieces that correlate really interestingly with the white paper. In particular, there’s a domestic statute that says you can’t murder an American overseas. And she said, “Wait a second, you can’t murder an American overseas, and even presidents, you know, that should cover the president. And even when he’s authorizing covert operations, as we know this to be, he can’t authorize people to do something that breaks American law.”

    So she lays out four reasons why what the administration had done with Awlaki doesn’t adhere to the principles of the Constitution.

    But she didn’t say Bill of Attainder. But Mary did: http://www.emptywheel.net/2013/03/08/john-brennan-sworn-in-as-cia-director-using-constitution-lacking-bill-of-rights/#comment-525525

    Mary:
    “the “due process” argument that the US PResident can issues kill orders for US citizens that it suspects of wrongdoing because rendition and extradition are too hard in some foreign countries is bull. It’s why we have a constitutional prohibition on bills of attainder – there are always situations where operating judicially is “hard” but the Executive branch and the Executive branch and Legislative branch combined are prohibited from sidestepping the judicial process to enact pains, penalties and punishments an suspected wrongdoers. That’s a prohibition on the power, period.”

    The Bill of Attainder clause is in Article I, Section 9, Limits on Congress. The comment after the above, @117, makes the point that Bill of Attainder extends to Congress a restriction on assassination orders that’s been in place on the executive, or king, since Magna Carta.

    RYAN ALFORD: And so coming back to your original question about whether or not a king would have claimed this power, this is the issue that we have now, because does Congress have a clear ban and the President is not subject to that ban under the Bill of Attainder clause? So the argument that someone like John Yoo would make is that, well, you know, we have certain restrictions on legislature but we need the executive to have this power, right? So what that’s ignoring is the fact that the Bill of Attainder clause, it builds on Magna Carta. It’s not creating a special restriction on Congress, it’s broadening out the restrictions of Magna Carta which prohibit the executive from doing this, which had been in place and had been observed without any exception for 500 years previous to the American Revolution. It’s extending that to the legislative process. Because in England it was still going on. They were still passing laws marking out people for death. I mean, George Washington, James Madison, they all were worried that they would be targeted via that kind of legislation being passed in London, right?, during the Revolutionary War. So that was still going on. Congress then said, “Well, the Framers say we can’t [6:52 inaudible], right? But the argument that they were saying – well, in prohibiting Congress from doing this, we’re essentially repealing Magna Carta letting the executive do it. That’s just preposterous.

    McMahon talks about Magna Carta and constitutional ways to deal with the crime of treason, which she focuses on as a possible executive justification for Awlaki’s killing — because she’s addressing arguments presented to her by DOJ? Don’t those same circumstances provoke the Bill of Attainder prohibition, as Mary said? Maybe the last thing OLC and DOJ will say out loud is “Bill of Attainder”?

    RYAN ALFORD: This is just, it’s the forgotten clause. No one ever refers to it or has much knowledge of it because we’ve never seen power being pushed quite this far in the United States because we had such a strong tradition of due process rights and procedural due process through the Fifth Amendment that we haven’t really needed the protection of the Bill of Attainder clause…

    Until now?

  16. Jeff Kaye says:

    bmaz, great article, continuing Marcy’s work on this all-important subject.

    I’m curious. Is there any continuity on the government arguments on targeted killing (assassination… ) and whatever legal shenanigans the government produces to allow extrajudicial kidnappings, otherwise known as extraordinary rendition? We know the Obama administration has maintained a rendition program ever since the President refused to end it upon taking office.

  17. jawbone says:

    Reading Marcy and bmaz’s posts has made it easier for me to understand why this administration –as with so many other US adminsitrations– is careful to avoid prosecuting Big Banksters and other “white collar” criminals: White collar or professionals’ crimes are what most of those at the top of government and big corporations undertake as normal approaches to their way of doing business.

  18. What Constitution? says:

    So many excuses, so little time.

    Brilliant and concise deconstruct here, bmaz, thank you.

    Maybe one of the reasons presidents haven’t been claiming the right to assassinate American citizens at whim over the past 250 years is that it’s appallingly illegal. Always and consistently illegal. And maybe things like section 1119 keep getting enacted to emphasize that when circumstances came up suggesting there were actors in the government seeking to avoid such fundamental proscriptions. The fun part about plainly stating how just the newest of the “this isn’t legal” arsenal — Congress’ enactment of section 1119 in the nineties — suffices to criminalize the conduct is that it’s just an exclamation point on the pre-existing legal landscape. That Judge McMahon could so effortlessly mention that section 1119 alone would suffice to render the Awlaki murder, well, criminal, is pretty pristine — and the utter and complete absence of subsequent commentary from the DOJ side about this is pretty telling (yes, technically this part of Judge McMahon’s discussion may be called “dicta” because it’s not necessary to the decision in the case, which was limited to the preliminary procedural issues and didn’t get to formally reach and decide substantive issues, so the DOJ isn’t required to address section 1119 in the case, but…).

    It can all be tracked back to Magna Carta — but to the extent that the defenders of what Obama has been doing are hoping they can dodge that level of fundamental proscription by hoping to survive by suggesting
    ‘that’s olde law” (they hath, after all, no shame), being able to paste them with provisions as bright, shiny and new as section 1119 is fun, too.

    And every time they try to wriggle into a “new” construct, or leak a “new NYT shillpiece”, it’s good to know you guys are here to slap them around.

  19. JohnLopresti says:

    EW has been chronicling the incrementalism, and the withheld documents insofaras we know. It’s beyond rule-making by committee after-the-fact. But, what recourses do we have?…Office of Professional Respnsibillty, which was not willing to make a step toward Yoo? The President is declaring time is of the essence; that’s the way the executive is structured, to recognize timeliness. There’s will be occasion, later, for the Senate’s cooling deliberation. The exectutive sets its own boundaries in a perceived crisis. The military and intell agencies next need to revise definitions. Christmas 2009, the President took the eschatolocal leap. Too many people were involved in BushW’s expansion of a pre-existing torture regime. Robotics made these choices feasible. Now it’s the terrorists who cannot shield what they are doing in realtime.

    I wonder what Steve Vladeck had to contribute March 6 in the Federalist Society teleforum

  20. beowulf says:

    @beowulf:
    Here’s a wrinkle to US v. Whartion, the 5th Circuit isn’t talking about conspiracy to foreign murder of US Nationals (18 USC 1117, w/ reference to 1119), the Court was laying out elements of a much broader crime (one that I was unfamiliar with):
    18 USC § 956 – Conspiracy to kill, kidnap, maim, or injure persons or damage property in a foreign country

    Unlike w/ 1117, there’s no requirement victim be a US National. That’s quite the criminal statute. Every single drone strike carried out (or even planned) by a US pilot without combatant’s privilege would generate a separate conspiracy count. Hmm, I wonder how the OLC tackled this felonious hurdle (if they even bothered).

  21. thatvisionthing says:

    @bmaz: Not so sure Bill of Attainder doesn’t matter. Mary. The Constitution. The whole idea of everything, why we would have a revolution against a king period, it’s who we are. But also something else, and I hope Marcy sees this too. When I heard the Ryan Alford interview, I wanted to see what the Josiah Phillips story is. And it turns out Alford got something wrong:

    RYAN ALFORD: […] In Virginia and New York, bills of attainder were passed naming loyalists, people fighting against the American patriots, and it actually happened in Virginia that someone named Josiah Phillips was targeted for death as an outlaw pursuant to an act of the Virginia colonial legislature during the Revolutionary War. And this was incredibly controversial. All the people we see later going on to write the Constitution – James Madison, Thomas Jefferson and John Marshall, and then also the first attorney general of the United States, Edmond Randolph, were appalled by this. And this is one of the key motivations for the key procedural protection of the Constitution against any targeting of American citizens through what’s called the Bill of Attainder clause.

    Because the incredible thing about Josiah Phillips’ Bill of Attainder is that Jefferson wrote it, in 1778 at Virginia Governor Patrick Henry’s request, though VA AG Edmond Randolph was apparently appalled by it. Phillips was a Tory and the Revolution was a civil war. One man’s patriot is another man’s traitor, and Phillips “and his associates and conferederates” were attainted for “the treasons, murders and other felonies by them committed” and “high treason.”

    Text of Jefferson’s bill of attainder: http://press-pubs.uchicago.edu/founders/print_documents/a1_9_3s4.html

    Reading the history here http://www.history.org/foundation/journal/spring02/attainder.cfm – attainder used by both king and parliament – more common in Revolutionary America than in England by that time – Jefferson’s bill passed VA legislature, but never carried out:

    As it happened, Philips was captured before the law took effect, and Attorney General Edmund Randolph was uncomfortable with bills of attainder. He tried Philips in a court of law and, not convinced the evidence of murder and arson was strong enough to support a conviction, prosecuted on charges not of treason but of robbery. A jury found Philips and his associates guilty of stealing twenty-eight hats and five pounds of twine-valued at just over two pounds-and, since even petty theft was a felony, they were hanged near Williamsburg in December.

    I’m sure there’s a great story about why you steal hats in a revolution, but I don’t know it.

    Jefferson and Henry took a lot of heat for it from other FFs, and when the Constitution was written, the bill of attainder clause passed unanimously, including Jefferson. You can see in George Washington’s draft that he crossed out everything after: No bill of attainder shall be passed ———–” That’s emphatic.

    But the story at the link tells us that even so, Jefferson later defended his bill against Phillips, in an 1815 letter:

    When a person charged with a crime withdraws from justice, or resists it by force . . . a special act is passed by the legislature adapted to the particular case. This prescribes to him a sufficient time to appear and submit to a trial by his peers; declares that his refusal to appear shall be taken as a confession of guilt . . . and pronounces the sentence which would have been rendered on his confession or conviction in a court of law.

    See, don’t I remember Ron Wyden asking whether Awlaki had to be offered the chance to turn himself in? Maybe he’s getting his questions from the Bill of Attainder clause history. The sentence of death without trial is pretty stark, but Jefferson’s bill itself is full of clauses of conditions that are presumed and conditions that must be met: The people killing him were to be his fellow countrymen acting it in personal here-and-now self-defense, imminence was really imminent, Phillips had to be in arms or resisting arrest, and the governor couldn’t just attaint on his own, he had to have it passed as a bill by the legislature.

    …And that the good people of this commonwealth may not in the mean time be subject to the unrestrained hostilities of the said insurgents, be it further enacted that from and after the passing of this act it shall be lawful for any person with or without orders, to pursue and slay the said Josiah Philips and any others who have been of his associates or confederates at any time after the said day of aforesaid and shall not have previously rendered him or themselves to any of the officers civil or military before described, or otherwise to take and deliver them to justice to be dealt with according to law provided that the person so slain be in arms at the time or endeavoring to escape being taken.

    I’m with Alford, it’s preposterous to think that a president of the United States could attaint if the Congress most definitely cannot.

    Another distinction here to see is that it’s in the circumstances of civil war. Which is something McMahon mentioned:

    However, the concept of due process of law has never been understood to apply to combatants on the battlefield actively engaged in armed combat against the United States. … Indeed, during the American Civil War, hundreds of thousands of persons recognized by the United States Government as American citizens, who were engaged in armed rebellion against the country, were killed in battle without any suggestion that their due process rights were being violated.

    In Awlaki’s case, this is the Onion on the AUMF, can a president presume war with a single person? Because Article II, a president has to faithfully uphold laws Congress passes, and Congress can’t pass a Bill of Attainder. And as Marcy says, if the CIA does it, it’s not military, not Article II Commander-in-Chief power.

  22. thatvisionthing says:

    Also re the “no delegation” clause in 1119 that Beowulf and I were going around with above — is that clause constitutional, if it effectively puts the DOJ and the executive above and beyond the law, or is that just more cloak of immunity that the government is able to presume now?

  23. beowulf says:

    @thatvisionthing:
    “is that clause constitutional, if it effectively puts the DOJ and the executive above and beyond the law”
    Of course it is since the President can pardon anyone for federal crimes. Its Congress’s impeachment power that’s the only check on that.

    If the Attorney General recuses himself, the Acting Attorney General for this matter will be the Deputy Attorney General (or if he’s also conflicted) one of the Assistant AGs. That delegation is specifically allowed in 1119 and I don’t understand why you think that’s debatable. The Acting Attorney General can hire a Special Counsel, and almost surely would, and so long as he keeps supervisory control (in fact, I’m not sure Comey had legal authority to delegate to Fitzgerald the Acting AG power but they’re best buds, so why not?) and signs off on any prosecution, then there hasn’t been impermissible delegation per 1119 (remember its AG, Deputy AG or Asst AG).

    Leaving aside that the President’s pardon powers are limitless, there isn’t a “no delegation” clause in 18 USC 956(a) (Conspiracy to Foreign Murder), nor must the victim be a US citizen.

  24. thatvisionthing says:

    @beowulf:

    “That delegation is specifically allowed in 1119 and I don’t understand why you think that’s debatable.”

    Because everything I’ve posted quotes it as NOT delegatable.

    Sick of this.

  25. bmaz says:

    @thatvisionthing: I agree with Beowulf, this is of no consequence. First off, there are fourteen people that can make the decision – the AG, the DAG, and any one of the twelve AAGs. And all said person has to do is sign off on the original charging decision, nothing more.

  26. pdaly says:

    Great post, bmaz.

    The part near the end discussing affirmative defenses are determinations made by a jury had me thinking about Yoo (or Chertoff?)’s warning to Team USA.

    That “no intention to torture” is a determination to be made by a jury, not merely a get-out-of-jail-free hall pass to be waved about by the defendant–assuming Team USA members ever made it to trial.

  27. Urban Tao says:

    A legal point needs to be made. His citizenship was revoked so legally he was not a US citizen at the time of the attack.

  28. pdaly says:

    @Urban Tao:
    Who revoked it? Or do you mean figuratively when the bomb exploded him and US citizen Samir Khan? and the second bomb that separately exploded 16 year-old US citizen Abdulrahman Awlaki?

    What is the legal process for revoking US citizenship? (as opposed to your would be process?) Legal points, please.

  29. thatvisionthing says:

    @bmaz: Proof is in the pudding. Awlaki was murdered how long ago? … crickets

    Totally innocent Awlaki child was murdered how long ago? … crickets

    And your 14? Let me know when one of them finds their John Hancock. … crickets

    Colleen McMahon said Awlaki’s murder is illegal four ways, including 1119, but… ? She denied the ACLU FOIA. Marcy says she had to, it’s in her chain of command. But whistling dicta is nice.

    We don’t have checks and balances. We have bottlenecks with bottle caps.

    I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret. – Colleen McMahon

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