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.
It does so, first of all, by suggesting the white paper may not be a faithful rendition of the argument Barron and Lederman made in the memo itself.
Nearly three years later, a version of the legal analysis portions would become public in the “white paper,” which stripped out all references to Mr. Awlaki while retaining echoes, like its discussion of a generic “senior operational leader.” Divorced from its original context and misunderstood as a general statement about the scope and limits of the government’s authority to kill citizens, the free-floating reasoning would lead to widespread confusion.
The leak last month of an unclassified Justice Department “white paper” summarizing the administration’s abstract legal arguments — prepared months after the Awlaki and Khan killings amid an internal debate over how much to disclose — has ignited demands for even greater transparency, culminating last week in a 13-hour Senate filibuster that temporarily delayed Mr. Brennan’s confirmation. [my emphasis]
Remember (because at this point, you may have doubts), this is a “news” article. And yet, without presenting any evidence, or sourcing the judgment, the article claims that the white paper has been misunderstood and sown confusion. What anonymous sources told the NYT reporters this is true? And why did they believe it, particularly if, as the story goes, they haven’t seen the memo itself?
In addition to suggesting that those who find the white paper’s treatment of 1119 unpersuasive are simply confused, the NYT offers up the precedent Barron and Lederman cited in the actual OLC memo.
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. [my emphasis]
Note what the NYT has done. Precisely what the white paper has done: yoke an AUMF public authority onto an Article II one, to hide the problem with authorizing the CIA to carry out murder in violation of 1119.
That is, try as it might to pretend that Barron and Lederman didn’t do precisely what they’ve argued against, the NYT doesn’t end up getting them out of their problem. The argument works great for DOD. But that’s not — the NYT reconfirms in this story — who killed Awlaki.
But but but, NYT reports in a “news” article,
They had not resorted to the Bush-style theories they had once denounced of sweeping presidential war powers to disregard Congressionally imposed limitations.
Curiously, this transparent attempt to make Barron and Lederman’s work look better than it is doesn’t account for this reading of the statute’s application, from Judge Colleen McMahon’s ruling in the Awlaki FOIA, now dicta on the matter.
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).
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.
That is, the one judge who has examined this matter — presumably with more background than any of us outsiders — has noted that the President is not exempted under 1119, nor can he authorize a covert op that violates US law.
It was really nice of the NYT’s reporters to grant Barron and Lederman a mulligan on an OLC opinion the government purportedly refuses to share with two out of three reporters on this story via legal means.
Too bad the NYT didn’t get them out of the very same problem Heller identified 3 years ago, the one they wrote the OLC memo precisely to overcome.
In a memo the government refuses to share even with the Judiciary Committees, Barron and Lederman apparently argued that the President can authorize the CIA to conduct “justifiable or excusable killings,” and based on that, can overcome domestic law that legally limits CIA covert ops.
But don’t worry: the claim that the President can authorize “justifiable” killings bears no resemblance to Bush era arguments.
Nixon: “When the president does it, that means it is not illegal.”
I’ve been grinding my teeth all day about this. Savage and Shane always uncritically accept whatever the anonymous officials tell them.
They also told a misleading story about Abdulmutallab’s confession, still tarred Awlaki with emails the FBI didnt find actionable, and didnt consider that Awlaki was a target of Dec 24 strike. Aargh.
And “the C.I.A., a civilian agency which generally operated within a ‘national self-defense’ framework deriving from a president’s security powers” is quite the gloss.
@ess emm: Oh, that’s all in the NEXT post on this.
Nice, EW. Thanks for putting this together.
Oh brother, have these guys read the Constitution since law school?
“The President shall be Commander in Chief of the Army and Navy of the United States (and unquestionably their respective spinoffs, the Air Force and Marine Corps) and of the Militia of the several States, when called into the actual Service of the United States (the National Guard, whose senior officer was added to Joint Chiefs last year).”
So to recap, the Commander-in-Chief has 5 different organizations at his disposal.
“The Joint Chiefs of Staff consist of the Chairman, the Vice Chairman, the Chief of Staff of the Army, the Chief of Naval Operations, the Chief of Staff of the Air Force, the Commandant of the Marine Corps and the Chief of the National Guard Bureau.”
Come on this isn’t rocket science (though the Chief of Staff of the Air Force could help out with that), The CIA does not fall into any of those 5 boxes so it is not a military service. The President can’t assert Article II Commander-in-Chief authority over its actions nor can CIA officers assert combatant privilege– they don’t have legal immunity for killing the enemy on the battlefield.
The obvious followup question from the reporters to the anonymous sources probably didn’t get asked, but I’ll ask it here, if only for rhetorical effect: “If this white paper is so misunderstood and has sown so much confusion, why not release the OLC opinion itself?”
When I think of drones raining death from the skies and prisoners at Gitmo being held indefinitely without charges, let alone trials, I can’t help but think of two of the charges that the Declaration of Independence leveled against King George III:
These are not things that any US administration should aspire to.
@beowulf: Jeebus. I hadn’t even considered that. But that is useful, thanks.
@Peterr: I suspect this is a case of lawyers, now outside of government, trying to claim their arguments aren’t as bad as they appear. Being outside of government they have no say over releasing their own work. They can only anonymously leak it in hopes that will provide adequate counterargument to the obvious evidence it wasn’t.
My dear Mme Emptywheel, thank you for all of this. When I win the presidential lottery (quite soon, surely), what position would you like to have? Sec State? Dir CIA? Sec Dwf? Atty Gnl? Which is the most influential?
Have you sat for the Michigan bar exam yet? Interesting how much you have come to know about Federal and other law through your research over the years. This essay is quite amazing in its depth. And just one of many.
Emptywheel has got it right in one of her tweets:
“Prediction: This irresponsibly credulous NYT report on Awlaki killing is meant as preface to Obama speech abt it.”
There are a multitude of issues I have with this New York Times story, but for the moment, I’ll just highlight one of them from the piece:
“And, very quietly, the C.I.A. began to build its own drone base in Saudi Arabia. Saudi officials had given the C.I.A. permission to build the base on the condition that the kingdom’s role was masked. And the base took care of a separate problem: the government of Djibouti, where the military was basing its drone operations in the region, put tight restrictions on any lethal operations carried out from its soil. The Saudi government made no similar demands.”
Given the carnage rendered by the US military such as the December 2009 cruise missile attack in Yemen (http://abcnews.go.com/Blotter/cruise-missiles-strike-yemen/story?id=9375236 and http://www.independent.co.uk/news/world/middle-east/us-cruise-missile-parts-found-in-yemeni-village-where-52-died-1993253.html) on the direct orders of President Obama and then Centcom Commander General Petraeus, I can’t imagine how anyone could characterize those restrictions on the US military as “tight”, and furthermore, I simply lack the imagination to even begin to comprehend the Saudi “anything goes” blessing for CIA drone operations from the Saudi airbase.
If this story in the New York Times is any example, the spin that will be coming out of the White House when Obama finally opens his kimono on this subject will be like that which we’ve rarely seen before.
Watergate and Iran/Contra come to mind.
If the White House thinks they’re are going to win the spin on this topic, I’d like some of what they’re smoking.
@beowulf: CIA not in Constitution period.
For reasons that become more and more obvious, seems to me. CIA and Constitution are allergic to each other.
“Note what the NYT has done. Precisely what the white paper has done: yoke an AUMF public authority onto an Article II one, to hide the problem with authorizing the CIA to carry out murder in violation of 1119.”
It’s not just in the New York Times article either.
It’s forms the underpinnings of the New York Times editorial position (http://www.nytimes.com/2013/03/10/opinion/sunday/repeal-the-authorization-for-use-of-military-force-law.html?hp&_r=0):
“Three days after the Sept. 11, 2001, terrorist attacks, Congress approved the Authorization for Use of Military Force. It was enacted with good intentions — to give President George W. Bush the authority to invade Afghanistan and go after Al Qaeda and the Taliban rulers who sheltered and aided the terrorists who had attacked the United States.
But over time, that resolution became warped into something else: the basis for a vast overreaching of power by one president, Mr. Bush, and less outrageous but still dangerous policies by another, Barack Obama.
Mr. Bush used the authorization law as an excuse to kidnap hundreds of people — guilty and blameless people alike — and throw them into secret prisons where many were tortured. He used it as a pretext to open the Guantánamo Bay camp and to eavesdrop on Americans without bothering to obtain a warrant. He claimed it as justification for the invasion of Iraq, twisting intelligence to fabricate a connection between Saddam Hussein and the 9/11 attacks.
Unlike Mr. Bush, Mr. Obama does not go as far as to claim that the Constitution gives him the inherent power to do all those things. But he has relied on the 2001 authorization to use drones to kill terrorists far from the Afghan battlefield, and to claim an unconstitutional power to kill American citizens in other countries based only on suspicion that they are or might become terrorist threats, without judicial review.”
As far as the New York Times can see, the 9/11 AUMF is the sum total of the problem. It’s as if the New York Times is willingly blind to the facts laid bare in the white paper and the speeches of Obama administration officials where they’ve repeatedly claimed Article II authority.
@Snoopdido: So far no one has topped the The Onion for best news coverage of the AUMF — they nailed it right away:
NY Times, eat your heart out.
Meanwhile, over at the Great Orange Satan, someone is wondering if al-Awlaki was still a citizen when the CIA (or whoever) blew him up. (Because they might be lying about that part, too.) There are several commenters who apparently actually believe (without questioning) the WH statements.
Get with the program. Lots of killings going on, Gitmo etc,
second, imminent means whatever they say it does until disputed in court,
third, 1119 is just another reason to outsource whole programs to non US citizens, whose activities though US funded will only be labeled terrorism by wingnuts,
fourth, citizenship may be enchanted hither and yon for both victims and perps by the citizenship electronic registry.
Marcy wondered about something like that last month:
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.
Good thing the President is Kenyan…
@P J Evans:
The Obama Sycophants rule Orange Satan. Daily Kos has especially failed with national security issues. All these unlikely Killer Robot Drone Scenarios are just a distraction. Critcs of government and mercenary Assassinations, drones or otherwise are helping to oppress the poor people.
Stop talking about it, emotional troublemakers. There is nothing to see here. Move on and eat your peas.
Outright murder and what concerns me is that he order the killing of his son that happened just one week later. On what grounds did the Obama admin get away with that one?
That reference is no doubt related to the filibuster fling but not the Alwaki murder. There is no end of distraction from corruption of law and the disappearance of the rule of law in both foreign and domestic areas.
After the disenfranchisement efforts of the last 4 national elections no person with integrity is a Republican.
After the corporate welfare, lack of prosecutions for financial crimes, five extra years of overseas wars and civilian deaths, whistle blower prosecutions, etc etc, no person with integrity is a Democrat.
So it is.
I should like to know more of Morten Storm, the Danish double-agent for CIA. I would like to FOIA his relationship to Danish government. Are they slave-sensors like the Swedes, who seem to jerk and weave with a puppet’s consistency? Would the statute auger well for the non-US citizen, Assange?
@Ben Franklin: There’s actually quite a bit about him in the public record. He got pissed the CIA didn’t give him credit for hunting down Awlaki so has exposed his own role in tracking him.
“PET; the Danish Intelligence services…….http://www.huffingtonpost.com/2013/01/13/morten-storm-al-qaeda-spy_n_2467757.html
“The Americans “had to crawl back to the Danish intelligence to beg them if I would travel back to Yemen and try to recreate or reestablish the contact, the communication with Anwar,” Storm said. “Within four weeks, the contact was up again.””
Frank, respectfully, they don’t.
To demonstrate the moral bankruptcy of the killing process consider the “facts” which provided “incontrovertible evidence” that Awlaki had become an “operational” leader of Al Qaeda: Awlaki was only considered an inciter until the underwear bomber, a month after naming someone else, changed his story to finger Awlaki as the person who directed him to detonate a bomb in a plane over US territory. So based on a changed story by a an unstable terrorist the President believed it was incontrovertible that an American citizen should be killed.
The dynamic described here justifies a couple of inferences. First, the President may not be getting top-flight legal advice. The notion that a blogger has to remind DOJ that its work is crap and needs revisiting does not inspire confidence. (This assumes, of course, that what the President wants is the finest legal advice, rather than a bare-bones, ex post facto rationalization of (likely) unlawful conduct.)
Second, the ops guys are driving the agenda, with the lawyers whip-sawed after the fact and compelled to try shoe-horning bad acts into whatever approximates something lawful. How else to explain the cobbled-together feel to what the government’s telling us?
And if you combine the two inferences, the absurdities in the Administration’s legal positions starts to make more sense.
This might be a dumb question, and I know there have been discussions of using Special Forces with CIA in the mix somehow, to loosen restrictions on what they can do, but is there some legal way to pick and choose what you want from AUMF and Article II if you are using both JSOC and CIA?
“yoke an AUMF public authority onto an Article II one”
Or has the CIA become such a paramilitary organization that even the president’s lawyers forget it’s not part of the military?
Great analysis, Marcy.
If there were a heaven, Izzy Stone would be looking at you and saying, “Finally, a worthy successor!”
Your work on this subject sets the bar for what news coverage should be.
I hope you take all you have written on the memos/Targeted Killing White Paper and publish a book — Anatomy of Deceit 2.
Just as a side note, the tailor-made do-over of the “Awlaki” memo 2.0 with “intel” included stinks of a bill of attainder, post facto.
I’m not a fan of the whole targeted killing thing, but it seems to me if the argument that Article II gives the President, as CINC, the authority to kill Americans overseas, then the question whether it’s DOD or CIA that pulls the trigger is really sophistry. They are both under the President’s command. And if the Constitution grants him a power Congress cannot, by statute, take it away. Of course, this begs the question whether the Constitution grants the President this power, which I do not think it does. That said, if Hitler had been born in Alabama rather than Austria but gone on to command the Third Reich, I don’t think anyone would have claimed that his place of birth would have prevented FDR from having the authority to kill him.
@beowulf: I’m interested in this theory that every single US president since WWII is guilty of criminal acts, since every one of them used the CIA to carry out national defense policy without even one exception. Such a conclusion must necessarily be wrong.
@George L: Clearly you are unfamiliar with Awlaki’s body of public pronouncements. In addition to repeatedly claiming responsibility for the underwear bombing attack in his own words and stating his intention to continue killing American civilians at any opportunity, he has also repeatedly claimed his supportive relationship to 9/11 conspirators, making him covered under AUMF. There’s problems with the TK program but using it on Awlaki is not one of them, he definitely was a legitimate military target and you will get served up with a slice of lemon arguing otherwise.
His son, on the other hand, not so much.
@Frank33: Seeing as how 90% of the concern over the drone program is based on a policy that Rand Paul invented out of thin air that everybody already knew wasn’t a policy, I’d say Kos has a point. At least you guys here are actually addressing the actual policy and not the conspiracy theory that Paul was pimping for 13 hours.
@P J Evans:
You’re so right. Clearly the White House killed Awlaki because they had some nefarious imperialist agenda. There’s no way that it had anything to do with Awlaki bragging about murdering civilians, announcing his intention to step up attacks on civilian airlines, issuing kill orders against US citizens who still are in protective anonymous custody by the FBI, or levying war against the US as an operational member of an organization headed by Osama’s chief aide and authorized by Ibrahim al-Zawahiri.
Nah, it has to be some kind of imperialist conspiracy. Because Obama’s made it pretty clear between his withdrawal from Iraq and his insistence on military budget cuts and his insistence that we withdraw from Aghanistan in 2014 that he’s a war-mongering imperialist.