A Difficult Issue

President Obama’s order to kill Anwar al-Awlaki raises so many difficult legal issues that it almost seems like a carefully crafted hypothetical for a final exam in constitutional law. Since constitutional law professors dread having to write fresh exam questions every year, the al-Awlaki order was a tremendous gift from the president, once a member of our ranks, to those of us still toiling in the field. Last spring, I happily seized the opportunity and used the al-Awlaki kill order on my final exam. The results, not surprisingly, were all over the place; some students felt, as does Professor Alford, that this was a clear violation of the constitutional rights of an American citizen; others viewed it as an unremarkable consequence of the Authorization for Use of Military Force against the perpetrators of the 9/11 attacks.

I find this issue especially challenging. On the one hand, the idea that the American president could simply order an American citizen to be killed, by the military no less, without a hint of judicial process, is staggering in its implications. Even George W. Bush never issued an order quite like this. On the other hand, surely the United States is justified in taking military action against members of al Qaeda who attacked, and who continue to plot attacks, against the United States. If al-Awlaki is in fact a dangerous leader of al Qaeda, why should he be immune from military action just because of the happenstance of his American citizenship? The issue also has a Nixon-in-China aspect. I suspect if Bush had issued a similar order, there would have been much more outrage from legal scholars. Obama, by contrast, is largely trusted.

Professor Alford’s essay makes several points with which I strongly agree. First, I agree that the Constitution, and not principles of armed conflict or international law, is the most relevant to resolving the legal issue. Second, I agree that the Constitution’s Treason Clause imposes significant limitations on the government’s response to terrorism cases. As I argued in a 2006 law review article, persons who owe allegiance to the United States are not subject to military jurisdiction for acts of levying war against the United States or adhering to our enemies.[1] These persons must be tried for treason in a civilian court. For purposes of the Treason Clause, al Qaeda can be legitimately deemed an enemy of the United States; providing support to al Qaeda, as al-Awlaki has allegedly done, is thus an act of treason against the United States. If he is captured, he must be treated as an ordinary criminal in a civilian court and is not subject to military jurisdiction. (The U.S. Supreme Court has held otherwise, but on this point the Court is simply wrong.) Third, I agree that the Bill of Attainder Clause binds the President as fully as it does the Congress. Finally, I agree that, in an appropriate case, a court should decide this issue on the merits and not dismiss it as a political question.

The precise issue posed by the al-Awlaki case, however, is not crisply resolved by any of these principles. Several factors distinguish this case: al-Awlaki is actively engaged in terrorist activities right now; there is little likelihood that he will turn himself in or be captured alive; he is operating in an area outside the reach of ordinary legal processes; and he is a member of a group that is appropriately targeted by the U.S. military. (If any of these conditions were not met, the case for the unconstitutionality of the kill order would be a slam dunk.) The historical sources I reviewed in my law review article did not speak to this situation; they all addressed what should happen after a suspect is captured. Here, the purpose of the kill order is not to punish, but to deter future attacks.

It is not sufficient to point to Magna Carta. Clause 39, which Alford quotes in part, states in full: “No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land.” (Professor Alford’s inclusion of the word “attack” in his quotation rhetorically stacks the deck through an atypical rendering of the original Latin). If the “law of the land” permits a targeted killing in these circumstances, there is no violation. Magna Carta thus helps frame the question, but it does not answer it.

Magna Carta did not, for example, always prohibit English kings from killing their subjects without a trial. When rebel subjects raised the standard of revolt, English kings led armies to defeat them. Those subjects who were not killed in battle were subject to trial for treason after the fact. But it is hardly plausible to argue that English kings violated Magna Carta by using military force to defeat armed rebels in the field.

Similarly, in the American Civil War President Abraham Lincoln used military force to kill thousands of American citizens without any form of trial. It was sufficient that these citizens had taken up arms against their government. They could be gunned down in battle, but once captured, of course, they could not be summarily executed. Relatedly, American military action against Axis forces was perfectly permissible, even if there happened to be American citizens on the other side.

So, in certain circumstances, the use of deadly military force against American citizens is permissible, as my fellow respondents have also noted. The difficult issue is to define precisely what those circumstances are and to determine how targeted killing fits into this framework. Is there something different about ordering military force against certain groups of Americans (e.g., the Confederate Army or the Whiskey Rebels) than against certain individuals? Perhaps—and perhaps the identification of particular individuals is the line at which a permissible military authorization crosses over to an unconstitutional bill of attainder, which is what I understand Alford to be arguing.

On the other hand, suppose that President Lincoln had learned that a Confederate company had become detached from other units, and he ordered one of his generals to lead an attack on that company. Suppose further that Lincoln had obtained a list of all the members of that company. Would it really be an unconstitutional bill of attainder for Lincoln to attach the names of the company members to his order? It seems formalistic in the extreme to contend that there is a significant difference between an order to attack the company in general and an order to attack the company with the member’s names attached.

Moreover, suppose the Authorization for the Use of the Military Force had specified the names of key al Qaeda leaders, such as Osama bin Laden, Ayman al-Zawahri, or Khalid Sheikh Mohammed, as perpetrators of the 9/11 attacks. This would simply make explicit what was implicit in the actual AUMF, and it seems strange to conclude that the mere naming of these individuals would raise suspicions of a bill of attainder. (As an aside, Alford’s essay seems to suggest that the bill of attainder prohibition is limited to acts against citizens; I’m not sure this is right. The provision’s terms are not so limited, and surely, within the United States, noncitizens are also protected.) Would the SEAL action against bin Laden have been unconstitutional if bin Laden happened to be an American citizen?

Finally, suppose we agree with Professor Alford that the al-Awlaki kill order is unconstitutional, and the President rescinds the order. He then issues a replacement order authorizing the military to use deadly force against “any al Qaeda leaders operating in Yemen.” If this order is unconstitutional, American military operations in the Middle East could well grind to a halt, as most are authorized under terms similar to these. If this replacement order is constitutional, though, it’s hard to see what all the fuss is about. al-Awlaki is going to be targeted by the American military either way. When the drone missile attack hits, does it really matter whether the order targeted him in specific or in general terms?

I would find this a hard case if I were a judge. I share with my fellow responders the concern that Professor Alford paints with too broad a brush and is insufficiently attentive to the details that make this case difficult. But I am grateful to Professor Alford for his engaging and provocative essay and the law review article upon which it is based, and I look forward to our continued discussion.

Note

[1] Carlton F.W. Larson, “The Forgotten Constitutional Law of Treason and the Enemy Combatant Problem,” 154 U. PA. L. REV. 863 (2006).

Also from this issue

Lead Essay

  • Sentence First, Verdict Afterwards by Ryan Alford

    In one sense, “targeted killing” is what war is all about. But can the executive branch rightfully declare a U.S. citizen the target of an assassination order? Lead essayist Ryan Alford argues that the “presidential death warrant” is repugnant to the rule of law—so much so that the Founders didn’t even think it necessary to make an explicit statement about the practice. At the time of the Revolution, English kings hadn’t enjoyed such a power for centuries, and it was thought to be the very antithesis of the rule of law. A power of this magnitude cannot be simply inferred from the Constitution’s silence, particularly when legal practice in the Anglo-American world tells so strongly against it.

Response Essays

  • Targeting Citizens in Armed Conflict: Examining the Threat to the Rule of Law … in Context by John C. Dehn

    John C. Dehn argues that context is critical in Anwar al-Awlaki’s case. He cites the Prize Cases, concerning a set of property seizures during the Civil War, and related Supreme Court precedent to argue that citizens with “enemy” status in an armed conflict require no prior adjudication of guilt before being made the object of war measures, but only if any such measures are consistent with the laws of war. Nonetheless, this does not amount to an unlimited power to issue executive death warrants; the courts may rule on the existence of a conflict or its proper scope, and are even constitutionally compelled to determine whether citizens were properly targeted within it. The courts should not avoid these issues under the “political question” doctrine.

  • The Federal Protective Power and Targeted Killing of U.S. Citizens by Gregory S. McNeal

    Gregory McNeal argues for another source of executive power that may legitimize the targeted killing of Anwar al-Awlaki, namely the federal protective power. Even outside of wartime, longstanding precedent allows federal agents to protect the interests and liberties of the citizens, as well as federal property and public servants. One need not convict al-Awlaki of treason to understand that he poses a threat in this sense, and doing so does not render the Treason Clause otiose; treason trials may still proceed and are not suppressed in any way. He further argues that issues such as this one, requiring “an informed debate [on their] benefits and dangers,” are obviously political questions — therefore properly out of reach of the courts.

  • A Difficult Issue by Carlton F. W. Larson

    Carlton Larson finds that a kill order issued in a military operation is not designed to punish, as the penal system obviously is. Instead, it aims to prevent future attacks and is logically implicit in war itself. If al-Awlaki were captured alive, or if he were to turn himself in, the Treason Clause would then govern the case. It does not necessarily do so now. Although Larson declares that he has difficulty siding decisively with any position on the case, he notes that it is “formalistic in the extreme” to conclude that all that separates lawful warfare from unlawful bills of attainder is a naming of names.

The Conversation