18 USC 1119

Scott Shane Defends the Commander-in-Chief’s Language

NYT’s excellent new ombud, Margaret Sullivan, returns to a perennial ombud issue, how the Grey Lady refers to Executive Branch actions and abuses. She includes a long quote from Scott Shane that reveals a great deal about his reporting, and ultimately convinces me we should be calling drone killing assassination.

Adherence to “Targeted Killing” Even While Admitting It’s Not

Let’s start with Shane’s defense of the term “targeted killing” (a term I sometimes use but should not). Sadly, Sullivan cuts off the direct quote from Scott Shane at its most important part, but in the following, the first paragraph here is a direct quote from Shane, the second Sullivan’s report of his comment.

This leaves “targeted killing,” which I think is far from a euphemism. It denotes exactly what’s happening: American drone operators aim at people on the ground and fire missiles at them. I think it’s a pretty good term for what’s happening, if a bit clinical.

Mr. Shane added that he had only one serious qualm about the term. That, he said, was expressed by an administration official: “It’s not the targeted killings I object to — it’s the untargeted killings.” The official “was talking about so-called ‘signature strikes’ that target suspected militants based on their appearance, location, weapons and so on, not their identities, which are unknown; and also about mistaken strikes that kill civilians.”

Shane defends using “targeted killing,” even while admitting that a great deal of drone killing is not targeted. Unless Shane knows a great deal more about individual strikes than he lets on — and therefore knows which drone strikes are targeted at known identities and which are targeted at crowds of unknown military aged males — then he is party to an apparently deliberate strategy on the part of the Administration to spin its killing program as much more orderly and legally justified than it actually is. We saw this operate as recently as yesterday, when John Brennan responded to a question from Jan Schakowsky about signature strikes by telling her to look back at speeches that address only “targeted killing.”

SCHAKOWSKY: Let me ask you this, is there any way that you can define and distinguish between targeted strikes and signature strikes by the — by drones?

BRENNAN: I would refer to the comments that were made by a number of U.S. government officials publicly in speeches, including when I was at the White House. I’m not going to engage in any type of discussion on that here to the Congress, ma’am.

As I said, I’m as guilty of using this term without sufficient awareness as Shane. But doing so consciously really is participating in a propaganda effort the Administration is engaged in.

Executive Order 12333′s Invisible Ink

Then there’s Shane’s refusal to use “assassination” based on Administration claims about Executive Order 12333, which ostensibly prohibits the practice.

“Assassination” is banned by executive order, but for decades that has been interpreted by successive administrations as prohibiting the killing of political figures, not suspected terrorists. Continue reading

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:
Continue reading

The NYT Grants David Barron and Marty Lederman a Mulligan on 18 USC 1119

I’ll have far more to say about this irresponsibly credulous accounting of the background to the Anwar al-Awlaki killing from the NYT tomorrow. But for the moment I wanted to point to an interesting detail about the genesis of the June-July 2010 OLC memo.

The NYT explains that David Barron and Marty Lederman wrote an initial short OLC memo to authorize Anwar al-Awlaki’s killing. But then, after reading a blog post that describes why such a killing would be a violation of 18 USC 1119, they decided they needed to do a more thorough memo.

According to officials familiar with the deliberations, the lawyers threw themselves into the project and swiftly completed a short memorandum. It preliminarily concluded, based on the evidence available at the time, that Mr. Awlaki was a lawful target because he was participating in the war with Al Qaeda and also because he was a specific threat to the country. The overlapping reasoning justified a strike either by the Pentagon, which generally operated within the Congressional authorization to use military force against Al Qaeda, or by the C.I.A., a civilian agency which generally operated within a “national self-defense” framework deriving from a president’s security powers.

They also analyzed other bodies of law to see whether they would render a strike impermissible, concluding that they did not. For example, the Yemeni government had granted permission for airstrikes on its soil as long as the United States did not acknowledge its role, so such strikes would not violate Yemeni sovereignty.

And while the Constitution generally requires judicial process before the government may kill an American, the Supreme Court has held that in some contexts — like when the police, in order to protect innocent bystanders, ram a car to stop a high-speed chase — no prior permission from a judge is necessary; the lawyers concluded that the wartime threat posed by Mr. Awlaki qualified as such a context, and so his constitutional rights did not bar the government from killing him without a trial.

But as months passed, Mr. Barron and Mr. Lederman grew uneasy. They told colleagues there were issues they had not adequately addressed, particularly after reading a legal blog that focused on a statute that bars Americans from killing other Americans overseas. In light of the gravity of the question and with more time, they began drafting a second, more comprehensive memo, expanding and refining their legal analysis and, in an unusual step, researching and citing dense thickets of intelligence reports supporting the premise that Mr. Awlaki was plotting attacks. [my emphasis]

This post — an April 8, 2010 post entitled “Let’s Call Killing al-Awlaki What It Is — Murder” — is almost certainly the blog post in question. There’s almost nothing else written on 1119 (there’s this legal journal article, but from Fall 2011), much less focusing specifically on Awlaki and published in a legal blog.

Which is interesting, because the post describes one of the possible bases for arguing that 1119 does not apply to the killing of Awlaki that Obama is just ignoring the statute as Commander-in-Chief.

Which leads us to the second possible explanation of why 18 USC 1119 does not apply: because Obama has authorized the CIA to kill al-Awlaki.  That explanation seems implicit in much of the media’s coverage of the Obama administration’s decision; I have yet to see any reporter ask why Obama believes he has the legal authority to order Americans killed, given that 18 USC 1119 specifically criminalizes such killings.  The argument, however, is deeply problematic — and eerily reminiscent of debates over the Bush administration’s authorization of torture. The Bush administration argued that Bush had the authority as Commander-in-Chief to ignore the federal torture statute, 18 USC 2340; the Obama administration seems to now be arguing, albeit implicitly, that Obama has the authority as Commander-in-Chief to ignore the foreign-murder statute.

As I noted, while the white paper, at least, plays a neat rhetorical game to collapse AUMF and Article II authorizations, ultimately it uses this language to explain why an Article II authorized killing of Awlaki would not violate 1119.

Similarly, under the Constitution and the inherent right to national self-defense recognized in international law, the President may authorize the use of force against a U.S. citizen who is a member of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States.

In other words, the white paper, at least, does precisely what Kevin Jon Heller warned might be so troubling — it said that if the President authorized Awlaki’s killing, it would mean 1119 would not apply.

To the extent that the white paper fairly reflects the content of the OLC memo, then, David Barron and Marty Lederman failed to find a counterargument to precisely the argument that appears to have convinced them to write a second, longer OLC memo in the first place.

Which may be why the NYT article goes to such lengths to try to explain away this apparent problem.

Continue reading

Colleen McMahon: The Covert Op that Killed Anwar al-Awlaki Was Illegal

A lot of people have discussed this section of Judge Colleen McMahon’s January 2, 2013 ruling dismissing ACLU and NYT’s FOIA for memos and other documents related to the targeted killing of Anwar al-Awlaki, Samir Khan, and Abdulrahman al-Awlaki:

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. [my emphasis]

But I’m not aware of anyone commenting at length on the section she titles, “Constitutional and Statutory Concerns about Targeted Killings,” a 5-page discussion of assessing targeted killing in terms of due process, treason, and other laws.

While the section is not entirely off point — she explores some of the legal questions raised in ACLU’s FOIA, though as I’ll show, she expands on the questions ACLU raised — the section is completely extraneous to her task at hand, determining whether or not the government has to turn over its legal justifications for killing Anwar al-Awlaki, Samir Khan, and Abdulrahman al-Awlaki. In other words, McMahon takes a 5-page detour from her work of adjudicating a FOIA dispute and lays out several reasons why the Awlaki killing may not be legal.

She recalls how central due process was to the founding of our nation.

As they gathered to draft a Constitution for their newly liberated country, the Founders – fresh from a war of independence from the rule of a King they styled a tyrant- were fearful of concentrating power in the hands of any single person or institution, and  most particularly in the executive. That concern was described by James Madison in Federalist No. 47 (1788):

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny ….

The magistrate in whom the whole executive power resides cannot of himself … administer justice in person, though he has the appointment of those who do administer it.

She reminds that the Treason Clause appears in Article III of the Constitution, not Article II.

Interestingly, the Treason Clause appears in the Article of the Constitution concerning the Judiciary — not in Article 2, which defines the powers of the Executive Branch. This suggests that the Founders contemplated that traitors would be dealt with by the courts of law, not by unilateral action of the Executive. As no less a constitutional authority than Justice Antonin Scalia noted, in his dissenting opinion in Hamdi, 542 U.S. at 554, “Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime.”

Thus far, she has just made it abundantly clear she meant her earlier comment about “actions that seem on their face incompatible with our Constitution and laws” seriously (and she addresses points — due process and Treason — the ACLU brought up explicitly). She interrupts her work of assessing the FOIA case before her to make it very clear she believes the Awlaki killing violated key principles of our Constitution.

But I’m particularly interested in the last two pieces of law she raises to suggest she thinks the Awlaki killing might be illegal. First, she looks at 18 USC 1119.

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).

18 USC 1119 is, of course, the passage of the white paper I focused on here, which the Administration dismisses, in part, this way.

Similarly, under the Constitution and the inherent right to national self-defense recognized in international law, the President may authorize the use of force against a U.S. citizen who is a member of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States.

And I’m such a geek that I actually mapped out what Eric Holder said in his Northwestern Speech and what actually appears in the white paper. The discussion on section 1119 is, by far, the topic explored in greatest length in the white paper but left unmentioned in Holder’s public spin of the legal thinking behind Awlaki’s killing. Section 1119 is something that Administration was very worried about, but didn’t want the public to know how worried they were.

McMahon’s discussion is interesting, too, because it’s somewhat tangential to the list of things ACLU asked about. They ask for “the reasons why domestic-law prohibitions on murder … do not preclude the targeted killing of Al-Awlaki.” And their original FOIA letter cites the same Dore article that McMahon cites. The ACLU never mentions section 1119 by name. But McMahon does, honing in on the statute that — at least given the relative focus of the white paper — the Administration seemed most concerned about. (She did get classified declarations, so it’s possible she got the white paper, though her comments about not needing to see the one OLC memo identified in the Vaughn Indices would seem to suggest she had not seen it.)

Then McMahon brings up something that doesn’t show up in the white paper (but one I’ve brought up).

There are even statutory constraints on the President’s ability to authorize covert activity. 50 U.S.C. §413b, the post-World War II statute that allows the President to authorize covert operations after making certain findings, provides in no uncertain terms that such a finding “may not authorize any action that would violate the Constitution or any statute of the United States.” 50 U.S.C. § 413b(a)(5). Presidential authorization does not and cannot legitimize covert action that violates the constitution and laws of this nation.

McMahon is, by this point, basically arguing that the Article II rationalizations that end up in the white paper (whether or not she had seen it) are invalid. The President cannot authorize something that violates the Constitution and US law, not even for (or especially not for) a covert operation the CIA would conduct.

Mind you, she’s a bit more gentle in her legal condemnation of the argument.

So there are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive that take place otherwise than on a “hot” field of battle. [my emphasis]

But she refutes, in 5 pages, not only what the government argued in the white paper (including its extensive section 1119 argument), but also the Treason Clause question they didn’t address.

And look at what she’s refuting here. She says the Executive “unilaterally authorized” Awlaki’s killing. She suggests they did so via a covert op.

In this section, she doesn’t once mention the Authorization to Use Military Force the Administration tries to yoke CIA actions onto, in spite of her discussion of the AUMF earlier in her ruling. (Update: Though she does introduce her Treason section by saying, “If the War on Terror is indeed a war declared by Congress pursuant to its constitutional power, and if Al-Awlaki was a combatant in that war, then he is a traitor.”)

In Colleen McMahon’s 5-page detour, having read a slew of classified declarations on the legality of the Awlaki killing – including CIA’s rationale for invoking Glomar — she addresses this killing as a covert operation authorized “unilaterally,” with no mention of the AUMF attaching Congressional authorization to the killing.

Perhaps that’s just her skepticism about whether the AUMF applies away from the “hot” battlefield; elsewhere, she notes that Awlaki “was located about 1500 miles from Afghanistan, in Yemen, a country with which the United States is not at war (indeed, which the United States counts as an ally).” That is, perhaps she just doesn’t buy the Administration’s arguments about the global battlefield.

But I find it very telling that a Judge who has read classified declarations from several agencies (and went on to write her own classified ruling, in addition to the public one) assesses the legality of the Awlaki killing as if it were solely based on Article II authority.

Emptywheel Twitterverse
bmaz Hot Fussin. Been Killing it for hours. Only Claude Rains knew
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bmaz I saw Shawn Holley on the CN type of media tonight, and not in a way that brought any joy to my memory of Johnnie Cochran. RIP.
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bmaz Hot Fuss by the Killers is still one of the best albums, or whatever you kids want to call things these days, of the last decade.
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bmaz @foolintheforest The latter.
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bmaz @cnbintucson Indeed.
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bmaz @MasaccioFDL Wait, @rortybomb ?? I love that guy.
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bmaz @cnbintucson "think there is any danger to McCullough from DOJ investigation?" // None, sadly.
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emptywheel @theurbansherpa If only you knew anything about theater it would all make sense! ;p
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bmaz The Killers are, well, killer. Nuf said.
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bmaz I am not positive it is okay to borrow a term from @dcbigjohn but I'm a bit reckless. So don't fence me in Bama's https://t.co/qco4mgVEvM
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bmaz @MasaccioFDL You know, I actually believe in "the system" but have issues with gross perversions thereof. And we got that here. Hugely.
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emptywheel @LemonSlayerUS Take that back. Gun had blood on it on 8/19 (it looks like). DNA was run by 8/14.
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