Three days after the death of Osama bin Laden, another extraordinary attempt by the military of the United States to kill a wanted terrorist narrowly missed its target. This attack—the first drone strike in Yemen since 2002—was aimed at Anwar al-Awlaki, the so-called bin Laden of the Internet. It passed with little comment, overshadowed by the successful SEAL mission. Regrettably, public consideration of its implications was eclipsed by the discussion of whether bin Laden was lawfully killed.

Legal issues related to targeted killing have received a significant amount of academic attention, not least at the second round of hearings held in Congress on this topic in February of 2010. These hearings were held shortly after the Obama administration leaked the news that the president had added al-Awlaki’s name to the Joint Special Operations Command’s target list. However, there has been no serious constitutional analysis of the critical difference between the orders targeting bin Laden and al-Awlaki: one names a citizen of the United States. Director of National Intelligence Dennis Blair stated at the time of these hearings that the President has the authority to order the killing of U.S. citizens who, like al-Awlaki, have not even been indicted for a terrorism-related crime by American courts. His statement echoes resoundingly in the scholarly silence stemming from inattention to the constitutional implications of citizenship.

The absence of a full-throated response from the legal community to Blair’s stunning conclusion follows from the fact that most scholarly analyses of targeted killing began with the assumption that the applicable legal frameworks for analyzing the issue are international human rights law and the law of armed conflict, wherein the question of the target’s citizenship has no primacy. However, we are now confronted with a novel circumstance: al-Awlaki is the first American citizen known to have been placed on the targeted killing list. Clearly, it is time for a reappraisal of this assumption.

The Constitution of the United States describes the rights and liberties of the citizen that the government must respect. Accordingly, when considering the issue of whether the president has the power to order the killing of a citizen without judicial process, we should begin with an examination of the constitutional text. Those advocating this position have not done so, likely because any scrutiny of the pertinent constitutional provisions (and the Framers’ intentions in drafting them) quickly reveals that the idea of a presidential death warrant has always been anathema.

Our due process rights are not found only in the Bill of Rights: the Framers thought that certain rights were so vital that they included them in the unamended Constitution. These antecedent rights are found in the Constitution’s “forgotten clauses”: the Bill of Attainder Clause and the Treason Clause. Conversely, the rights to trial by a local jury and to be secure from unreasonable search and seizure were not included in the unamended Constitution—despite being within the first rank of the issues for which the American Revolutionaries fought and died.

A bill of attainder was an act of Parliament that condemned a citizen to death. These were so odious to the Framers that a ban on these acts was placed in the Constitution’s Article I, which states that “no bill of attainder … shall be passed” by either the federal government or the states. This is one of the few unconditional due process rights: whereas one is protected only against “unreasonable searches” or “excessive bail,” attainder was unambiguously abolished.

The reasons for the Framers’ uncompromising approach to attainder in the Constitution were demonstrated during the ratification debate in Virginia. Edmund Randolph (later the first Attorney General of the United States) condemned the attainder of the vicious Tory bandit Josiah Phillips, who had been accused in 1778 of numerous counts of arson and murder, and for (in the words of the bill) having “levied war against this Commonwealth.” “[W]hereas the … usual forms and procedures of the courts of law would leave the said good people for a long time exposed to murder and devastation,” he was attaindered by the General Assembly. Randolph believed that “a man, who was then a citizen, was deprived of his life thus,” and he promised that “if I conceived my country would passively permit a repetition of it … I would seek a means of expatriating myself from it.”

When the counterargument was made that Phillips was “a fugitive murderer and an outlaw … . [and] the enormity of his crimes did not entitle him to [due process],” John Marshall replied: “Can we pretend to the enjoyment of political freedom or security, when we are told that a man has been, by act of Assembly, struck out of existence without being confronted with his accusers and witnesses, without benefit of the law of the land?” Randolph and Marshall’s interventions were decisive: there is no recorded opposition to the ratification of the Constitution on the grounds of its absolute rejection of attainder. It is also significant that the clause was included after a vote at the Philadelphia Convention that was recorded in James Madison’s records as nemine contradicente, meaning it was approved after no man spoke against it.

While the clause explicitly bans bills of attainder, but not executive acts that would work the same evil, no respectable historical argument could be made that the Constitution allows the latter (by exclusio alterius) while abhorring the former. The Framers belonged to a legal and political tradition that was deeply concerned about overweening executive authority, and which fought relentlessly against the invocation of any prerogative related to matters of state for denying certain suspects due process. The Star Chamber (a court controlled by the executive branch), was a byword for tyranny for the revolutionary generation, and besides Locke, no one was cited in the revolutionary pamphlet literature more often than Edward Coke, who epitomized the struggle against the extraordinary prerogative and executive detention in the seventeenth century.

Additionally, the Framers needed only to proscribe bills (and not executive acts) of attainder because there had been no executive death warrants issued in England for over four hundred years; Edward III’s admission that the Great Charter could bind the king guaranteed that no one would be attainted without the assent of Parliament. Magna Carta, in addition to providing for trial by jury, committed the king and his successors to the promise that he would never “attack [any free man] or send anyone to attack him, except by the lawful judgment of his peers.” By 1787, this principle was so deeply embedded in English legal thought that Blackstone thought that if a king were to ignore it, he would surely ignite a lawful and successful revolution: “To bereave a man of life … without accusation or trial, would be so gross an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom.”

Accordingly, any argument that the Constitution was intended to repeal Magna Carta by implication (by banning only bills of attainder) would also be preposterous due to the universal reverence for that document demonstrated by the Framers. Indeed, one of the most inflammatory and rhetorically effective claims made by the American Whigs about the Intolerable Acts was that they demonstrated that Parliament believed that it had the power to repeal Magna Carta within the colonies. Furthermore, insofar as it was an English statute in force at the time of the beginning of the Revolution, it was universally recognized as the law of the land in reception statutes. The only question that might remain is whether the Framers implicitly created an exception to the protections of the Great Charter for those traitors who levy war against the United States.

Given the importance of Josiah Phillips’ attainder to the history of the clause banning the practice, and the fact that the Framers were very concerned about the potential for the executive branch to abuse its powers though control over a standing army, it would seem evident that they would not countenance an exception to the Bill of Attainder Clause involving a military order to target a citizen who adheres to the country’s enemies and wages war against the United States. However, there is much better evidence that the Founding Fathers showed particular care for the due process rights of traitors: the Treason Clause.

This, the second of the Constitution’s forgotten clauses, was also deemed such an important guarantee of due process that it also predates the Bill of Rights. It states that “No Person shall be convicted of Treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” Here, the Constitution asserts that traitors shall not be punished unless convicted in a civilian court (note that the Treason Clause was placed in Article III)—in fact, not until after a trial that offers more due process protections than any other felony trial. John Marshall affirmed the inviolability of these protections at the treason trial of Aaron Burr, who had been charged with leading a conspiracy that allegedly could have overthrown the government of the United States and splintered the young nation. He acquitted Burr despite great pressure from President Jefferson, who had publically declared Burr guilty before his trial, and he ruled that both the president and his state papers were subject to subpoena at the defendant’s request.

The Chief Justice also noted that the adoption by the Framers of the earlier English view of the incompatibility of executive discretion to punish traitors with the rule of law was indisputable, while pointing in particular to the influence of Blackstone, Coke, and Matthew Hale on the Constitutional vision of the natural principles of justice. These jurists stressed that the guarantee that an alleged traitor should have the benefit of due process of law in a common law court (which precludes trial according to military law or in a court controlled by the executive, such as the Star Chamber) was not entrusted to the executive. By embedding the commitment to due process in a written Constitution—first, in the English Bill of Rights, later in the Constitution of the United States—the architects of the rule of law sought to ensure that the government could never deprive a citizen of their fundamental rights; the Framers sought only to expand the scope of these protections when they explicitly deprived the legislative branch of that power.

Accordingly, since al-Awlaki is allegedly a traitor accused of adhering to and giving comfort to the nation’s enemies, the Constitution establishes that he can only be executed after a conviction in an Article III court on the testimony of two witnesses to his overt act of treason, and not by an act of the executive or legislative branches, whether or not their determinations purportedly involved procedural safeguards. It is for this reason that there has never been military jurisdiction over civilian traitors, as evidenced by James Madison’s intervention in the Case of Clark the Spy when he intervened to release a civilian convicted of treason by a court martial. A conviction, however, could be obtained in al-Awlaki’s absence (following an amendment to Federal Rule of Criminal Procedure 43) as the Confrontation Clause’s right to be present “is not absolute and can be waived by the voluntary absence of the defendant.”

Despite the fact that there has been no trial, the President has pronounced a citizen guilty (note also that he has declared that Bradley Manning “broke the law” and thus ignored the presumption of innocence repeatedly in national security cases). What is much worse than in Manning’s case is that the president ordered al-Awlaki’s execution by attainder. This is much like Lewis Carroll’s Queen of Hearts: “Sentence first—verdict afterwards.” It is beyond peradventure that the Framers never intended to invest the president with the power to order a citizen’s execution without trial (the locution “kill or capture” is a rather thin veil for such an order when it can only be executed via Hellfire missile), given their well-recorded adherence to the vision of the rule of law articulated by the authors of the English constitutionalist tradition.

The contrary view would render the Bill of Attainder Clause and the Treason Clause—the only due process guarantees the Framers deemed important enough to include in the unamended Constitution—dead letters. They simply have no meaning if the president can unilaterally determine that a citizen needs to be killed in the interests of preemptive national self-defense, especially as the proponents of that thesis also argue that any court faced with a claim that the president has killed or will kill a citizen without due process should decline to address it as a political question. This was the approach taken by Judge Bates of the District Court for the District of Columbia in Al-Aulaqi v. Obama, who in a stunning rebuke to logic and common sense, declared that he would not “assess the merits of the President’s (alleged) decision to launch an attack on a foreign target [a]lthough the ‘foreign target’ happens to be a U.S. citizen.”

One may argue that the Framers could never have imagined the potential conflict between due process rights and an existential threat to the nation posed by modern terrorism. It’s a debatable assertion, because they demonstrated ample concern for due process during the Revolution itself. Still, on that basis one could argue that a radical alteration of the text is required and propose a “national security constitution” or an “emergency constitution.” We could then engage in an informed debate on the benefits and dangers of due process and the rule of law in a time of crisis. This would be infinitely preferable to the current charade, in which certain scholars now argue that what the Framers considered the foremost evil is consistent with the Constitution they created.

In four years’ time, delegates from the American Bar Association will visit Runnymede to mark the 800th anniversary of Magna Carta. If the developments inaugurated by the attainder of Aa-Awlaki (and the dismissal of al-Aulaqi v. Obama on the grounds of the political question doctrine) continue, this will be a shamefaced ritual. Will the United States spurn the heritage of Magna Carta and carry out the first Anglo-American executive death warrant since the fourteenth century? Will we ignore the plain words of the Constitution and the views of the Framers who wrote it, those who had rejected the attainder of Josiah Phillips, a close analogue of Anwar al-Awlaki? If so, it will become difficult to argue that the United States is a nation governed in accordance with the rule of law. If the president can determine that a citizen should be killed without the due process explicitly and clearly mandated by our Constitution, and that no court can either declare the unconstitutionality of that action or order the executive branch to comply with its directives, then we can hardly be called a nation of laws. We will have become a nation ruled merely by men.

Professor Alford’s essay and closely related article address vital constitutional issues. His article’s description of the origins and purposes of the Bill of Attainder and Treason Clauses of our Constitution is thorough, interesting, and informative. However, Professor Alford’s analysis of the effect of these clauses on current issues surrounding the lethal targeting of U.S. citizens gives inadequate consideration to the context in which such cases, like that involving Anwar al-Awlaqi, potentially arise—a congressionally authorized armed conflict. This inattention detracts from what is an otherwise valuable contribution to law and policy debates surrounding the targeting of U.S. citizens.

This response will briefly show that Supreme Court precedent addressing the rights of citizens properly deemed enemies in armed conflict contradicts Professor Alford’s base claim, namely that the Bill of Attainder and Treason Clauses, for reasons deeply rooted in Anglo-American jurisprudence, necessarily require a judicial adjudication before the executive branch may intentionally kill a citizen. It will then briefly suggest the proper effect of these clauses and the important contribution of Professor Alford’s work to the issue. While I agree with Alford that abdicating judicial review in these matters is an unnecessary and unprecedented expansion of the political question doctrine,[1] I disagree that a prior judicial adjudication is constitutionally required.

Relevant Supreme Court precedent strongly implies that in the context of armed conflict, lethal targeting of U.S. citizens who are part of an enemy army or force in armed conflict with the United States is entirely constitutional if it is otherwise consistent with the laws of war. The Court has both explicitly and implicitly rejected Professor Alford’s position when examining the exercise of war powers other than lethal targeting against citizens properly deemed enemies in an armed conflict.

From the perspective of our courts, the United States is currently engaged in a legislatively authorized armed conflict against a nonstate group known as al Qaeda. In Hamdi v. Rumsfeld, a plurality of the Court found that the Authorization for the Use of Military Force granted the president authority to exercise war powers, including “authority to detain for the duration of the relevant conflict;” such powers are “based on longstanding law-of-war principles.”[2] In Hamdan v. Rumsfeld, the Court readily found an armed conflict to exist with al Qaeda, one governed by applicable conventional and customary laws of war.[3] While these cases involved executive actions initially taken on the battlefields of Afghanistan, they do not limit the executive’s use of war powers to that country. The Court has not yet fully addressed breadth of executive war powers granted by the AUMF, or their use against other non-state, organized armed groups like al Qaeda in the Arabian Peninsula.

Regarding the rights of citizens in armed conflict, the Supreme Court addressed Professor Alford’s position during the Civil War in the Prize Cases.[4] The Court reviewed President Lincoln’s order to blockade Southern ports after the attack on Fort Sumter and the associated capture (and forfeiture as prize of war) of property belonging to citizens of the rebelling states. After finding that a civil war was one clearly subject to the laws of war, and that those laws generally permitted the captures at issue, the Court addressed constitutional issues raised by the litigants.

The appellants contend that the term “enemy” is properly applicable to those only who are subjects or citizens of a foreign State at war with our own. They quote from the pages of the common law, which say, “that persons who wage war against the King may be of two kinds, subjects or citizens. The former are not proper enemies, but rebels and traitors; the latter are those that come properly under the name of enemies.”[5]

The Court also noted that the appellants asserted the “right to claim the protection of the government for their persons and property, and to be treated as loyal citizens, till legally convicted of having renounced their allegiance and made war against the Government by treasonably resisting its laws.”[6] Rejecting these claims, the Court found it “a proposition never doubted, that the belligerent party who claims to be sovereign, may exercise both belligerent and sovereign rights.”[7] It then applied laws of war to determine the rights of these citizens relative to the government.[8] Thus, the Court clearly established that U.S. citizens may constitutionally be made the object of war measures without a prior adjudication of guilt, but only in an armed conflict and when such measures are consistent with the laws of war.[9]

Very recently, a plurality of the Court took the same general approach to the indefinite detention of U.S. citizen Yasser Hamdi, an approach also evident in intervening decisions.[10] This precedent makes Justice Scalia’s dissent in Hamdi advancing Professor Alford’s view all the more curious. Equally curious, though, is that neither Justice Scalia nor the plurality discussed the Prize Cases. Instead, the two opinions focused on disagreement surrounding the territorial applicability of the laws of war to citizens, represented by the Court’s opinions in Ex parte Milligan and Ex parte Quirin.[11]

Given the Court’s longstanding approach (and the complete history of the Civil War), there is no reason in theory to limit the executive’s use of war powers against enemy citizens to the capture of property or indefinite detention. In a genuine armed conflict, the “executive death warrant” to which Professor Alford refers becomes lawful “target identification.” This is not a euphemism for assassination, extrajudicial execution or attainder. In spite of talk about “bringing Osama bin Laden to justice” in the Abbottabad raid, lawful targeting of individuals in the context of an armed conflict does not depend upon their moral blameworthiness.

Although philosophers might cringe at the suggestion, under the laws of war, lethal targeting in armed conflict requires no moral “judgment” or assignment of “guilt” because the attack is not a punishment. In the laws of war, lawful targeting of individuals requires that they either have targetable status, as an operational member of an armed force engaged in the conflict, or engage in targetable conduct, referring primarily to civilians or noncombatants (usually protected from direct attack) who take a direct part in the hostilities of the conflict.[12] Thus, the lethal targeting of a specific individual without prior judicial review—even a citizen—does not necessarily violate the Bill of Attainder, Treason, or Due Process Clauses as long as that individual may properly be targeted under the laws of war. [13]

While Professor Alford did not fully consider the armed conflict context or related precedent, his analysis is an important reminder of the judiciary’s role in preserving the life and liberty interests protected by the Constitution. If armed conflict is an exceptional condition that may relax or eliminate specific constitutional protections in certain circumstances, then the courts must, in cases meeting jurisdictional prerequisites, ensure that those exceptional circumstances actually exist and are not being opportunistically asserted by an overzealous executive.

In the Prize Cases, for example, the Court indicated that the executive action alone might conclusively establish the existence of an armed conflict for the courts.[14] However, closer examination of the Court’s opinion reveals that the Court considered the totality of the circumstances. It rejected the assertion

[t]hat insurgents who have risen in rebellion against their sovereign, expelled her Courts, established a revolutionary government, organized armies, and commenced hostilities, are not enemies because they are traitors; and a war levied on the Government by traitors, in order to dismember and destroy it, is not a war because it is an “insurrection.”[15]

But in so doing, it considered the full extent of the rebellion to which President Lincoln responded. It also considered that other governments had declared their neutrality, and that Congress had passed legislation ratifying the president’s actions.[16] In short, in spite of some language in the opinion, the Court did not blindly defer to the executive regarding the existence of an armed conflict between the government and a significant number of its citizens.

Likewise, the Hamdi plurality indicated that they might also reconsider their view on the applicability of the laws of war to the violence between the government and the Taliban or al Qaeda. After finding that Hamdi’s indefinite detention was “clearly and unmistakably authorized” by Congress, they noted,

Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date.[17]

Thus, the Hamdi plurality also signaled that the courts must carefully assess the context in which the executive resorts to war powers, particularly against citizens. This strongly counsels against application of the political question doctrine in these cases.

Professor Alford’s article and essay highlight why the judiciary must not defer to the executive, or to both elected branches acting together, on important matters of context surrounding the lethal targeting of citizens. Even if the judiciary properly defers to the elected branches regarding the existence of armed conflict,[18] a doubtful proposition in many potential cases, it is not precluded from examining—and should feel constitutionally compelled to determine—whether a citizen was properly targeted in any such conflict.

Notes

[1] John C. Dehn & Kevin Jon Heller, Debate: Targeted Killing: The Case of Anwar Al-Aulaqi, 159 U. Pa. L. Rev. PENNumbra 175, 178-80 (2011).

[2] Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004).

[3] Hamdan v. Rumsfeld, 548 U.S. 557, 628-32 (2006).

[4] Prize Cases, 67 U.S. 635 (1862).

[5] Id. at 672.

[6] Id.

[7] Id. at 673.

[8] Id. at 674-82.

[9] For fuller explication of the President’s war powers, see John C. Dehn, “The Commander-in-Chief and the Necessities of War: A Conceptual Framework,” Temple L. Rev. (forthcoming 2011).

[10] Ex parte Quirin, 317 U.S. 1 (1942) (as to petitioner Haupt); Juragua Iron Co., Ltd. v. United States, 212 U.S. 297 (1909).

[11] Hamdi, 542 U.S. at 522-525.

[12] Dehn & Heller, supra note 1, at 191-2.

[13] In my view, whether the war power is exercised territorially or extraterritorially is also relevant to the constitutional analysis, particularly when discussing citizens who are not members of an enemy armed force. The available space here is simply insufficient to address this aspect of the topic.

[14] Prize Cases, 67 U.S. at 670, “Whether the President in fulfilling his duties, as Commander in-chief … has met with such armed hostile resistance … as will compel him to accord to them the character of belligerents, is a question to be decided by him … .”

[15] Id.

[16] Id. at 669-71.

[17] Hamdi, 542 U.S. at 521, emphasis added.

[18] See, for example, id. at 588 (Thomas, J. concurring)(citing precedent suggesting this approach)

In “Sentence First, Verdict Afterwards,” Ryan Alford offers several novel constitutional arguments against the U.S. targeted killing policy; pursuant to this policy the United States is directing attacks against U.S. citizen and admitted al-Qaeda leader Anwar al-Awlaki. Alford characterizes the targeted killing policy as “a presidential death warrant” that is anathema to the Constitution’s Bill of Attainder and Treason Clauses. His claim, roughly summarized, is that the history of the founding and the Constitution’s “forgotten clauses” amount to a due process guarantee which prohibits the president from targeting U.S. citizens who take up arms against the United States. In Alford’s view, any citizen who joins the fight with the nation’s enemies cannot be killed; rather he must be convicted by an Article III court on the testimony of two witnesses to his overt act of treason. What I aim to argue in this response is that Alford’s arguments against targeted killing are thorough, yet unconvincing.

Alford poses his central claim this way: “since al-Awlaki is allegedly a traitor accused of adhering to and giving comfort to the nation’s enemies, the Constitution establishes that he can only be executed after a conviction in an Article III court on the testimony of two witnesses to his overt act of treason…” This passage could mean that if the only charge against al-Awlaki is that he is a traitor, then the only means by which that charge can be resolved is through an Article III court, subject to the Constitutional requirements for convicting one of treason. If that is Alford’s claim I have no qualms with it.

However, I read Alford as making a more restrictive argument. Relying on his interpretation of the founding era understandings of the Attainder and Treason Clauses, he claims that the exclusive means for dealing with citizens who take up arms against the United States is to hope they can be arrested, hauled into court, and convicted. This simply cannot be correct. Under such a view of the Constitution, al-Awlaki could be standing on the White House steps with an RPG, and under Alford’s reasoning his killing would be prohibited (absent the due process protections Alford believes are compelled by the Attainder and Treason Clauses). Surely the Constitution does not require this level of deference to citizenship and such stringent limitations on federal action. Either there are some circumstances under which the President may order a U.S. citizen killed—in which case much of Alford’s historical argument is incorrect—or al-Awlaki with an RPG cannot be killed, and U.S. presidents have been behaving unconstitutionally for centuries.

My reading of the Constitution leads me to believe that there are circumstances when the president may order U.S. citizens to be killed. It may be akin to the facts in al-Awlaki, where one is actively making war against the United States, or it may be in lesser circumstances that threaten the instruments of federal power. Let’s start with a settled example where a killing was authorized to protect the federal government. In Cunningham v. Neagle, 135 U.S. 1 (1890), the Court addressed the killing of a U.S. citizen by Neagle, a federal marshal who was dispatched to protect Justice Field from an anticipated assault. While on a railroad dining car, the assault occurred (as expected) and Neagle reacted by killing the assailant with two pistol shots; Neagle was subsequently arrested on homicide charges and held for trial. The question the Court addressed was whether Neagle, acting upon orders but not a statute, had authority to kill a man in defense of Justice Field. The Court found that Neagle was acting pursuant to lawful authority, because the President was entitled to authorize protection for a sitting Supreme Court Justice. Justice Miller wrote:

That there is a peace of the United States; that a man assaulting a judge of the United States while in the discharge of his duties violates that peace; that in such case the marshal of the United States stands in the same relation to the peace of the United States which the sheriff of the county does to the peace of the State of California; are questions too clear to need argument to prove them.

While the Court characterized the questions as “too clear to need argument to prove them” this was in fact the first time the Court ever articulated what was long thought to exist—a federal protective power. The Court went on to explain that the structure of the Constitution itself suggested there was an inherent executive power to protect federal officers in the discharge of their duties.

Neagle was reinforced five years later in In re Debs, 158 U.S. 564 (1895), a case involving the attorney general’s attempts to prohibit interference with interstate commerce. In Debs the Court noted that the president was acting on inherent powers embedded in the Constitution and existing statutes, both of which allowed him to act as the primary agent of the national government to “prevent any unlawful and forcible interference” with interstate commerce. The Court went on to state that the president could use “the entire strength of the nation” including “the army of the Nation, and all its militia” to protect interstate commerce. Moreover, the Court cited numerous English and state authorities for the proposition that “when the choice is between redress or prevention of injury by force and by peaceful process, the law is well pleased if the [Executive] will consent to waive his right to the use of force and await [the law’s] action,” (emphasis mine) but such waiver is not constitutionally required. The import of Neagle and Debs is perhaps best summarized by the dissent in the Steel Seizure case, “[t]he Executive is authorized to exert the power of the United States when he finds this necessary for the protection of the agencies, the instrumentalities, or the property of the Government.”

Alford cites many historical sources for the idea that the Founders believed citizens should not be arbitrarily deprived of their lives without due process. That notion though, must also recognize that the Founders felt that a key role of government was to ensure that citizens were equally protected from external harms. Security of one’s person and property was a principle emanating from the doctrines of Hobbes and Locke, both of whom influenced the judgment of the Founders. Furthermore, as the Court noted in Neagle, the protective power is an “obligation, inferable from the Constitution, of the government to protect the rights of an American citizen against foreign aggression.” As we know from the al-Awlaki case, that foreign aggression may come in the form of an American citizen directing attacks against the entirety of the United States. When such attacks occur, it falls on the president to embody the “great object and duty of Government [which] is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home; and any Government failing in the accomplishment of the object, or the performance of the duty, is not worth preserving.” Durand v. Hollins, 8 Fed. Cas. 111 (No. 4186)(C.C.S.D.N.Y. 1860).

In light of my argument in favor of a federal protective power, and John Dehn’s arguments situating the targeted killing policy in a war framework, what are we to make of Alford’s historical claims? Do the Attainder and Treason Clauses forbid the president from killing al-Awlaki and other U.S. citizens who take up arms against the United States? I believe the history of these clauses is conflicted at best. For example, in support of his view that the framers took an “uncompromising approach to attainder” Alford cites to statements made by Randolph and Marshall during the Virginia ratification debates where they used the case of Josiah Phillips to bolster their support for the Attainder Clause. Alford’s historical account is somewhat incomplete, because while Josiah Phillips was indeed attaindered, the deprivation of his life came after he was tried and convicted by Phillips for robbery (a felony punishable by death), not treason or any of the other crimes for which the bill of attainder was issued. Years later, when Randolph uttered the passage cited by Alford “a man, who was then a citizen, was deprived of his life thus” it was part of a broader debate between him and Patrick Henry regarding whether the Constitution should include a Bill of Rights (Henry believed the Constitution should include one, Randolph was opposed to it) and he used the Phillips case to accuse Henry of hypocrisy.

Could these passages support the idea that the Founders intended the Attainder Clause to prohibit the president from killing treasonous U.S. citizens? Certainly. Could these passages just as easily be evidence of Randolph using the ratification debate to score political points? Perhaps. Do the selected quotes definitively rule out contrary views? Certainly not. Alford has more history at his disposal, which I’m sure he’ll share in response, but none of it definitively proves that the Treason and Attainder Clauses were intended to prevent the President from protecting the United States from attack. The fact that in the early years of American history some citizens were captured and tried some of the time does not mean that such an outcome was constitutionally compelled; it may simply have been the most politically expedient choice at the time. Chances are that we will never know.

The open-ended nature of this debate leads me to Alford’s critique of the dismissal of the al-Awlaki case on political question grounds; a critique he undermines just a few sentences later when he calls for “an informed debate on the benefits and dangers of due process and the rule of law in a time of crisis.” Isn’t that debate precisely what judicial deference has led us to? If the President’s actions are so contrary to the rule of law, the constitutional checks of elections and impeachment are sufficient tools to prevent him from killing al-Awlaki. I fail to see how leaving final policy judgments to unelected and unaccountable judges is consistent with the Constitution’s text or preferable to the status quo. While we may not like the indeterminacy of judicial deference, matters of the common defense are responsibilities entrusted to the political branches and the people, not the courts. As President Jefferson noted:

It is incumbent on those only who accept of great charges, to risk themselves on great occasions, when the safety of the nation or some of its very high interests are at stake. An officer is bound to obey orders; yet he would be a bad one who should do it in cases for which they were not intended, and which involved the most important consequences. The line of discrimination between cases may be difficult; but the good officer is bound to draw it at his own peril, and throw himself on the justice of his country and the rectitude of his motives. Letter to J.B. Colvin

Here, the line-drawing is difficult and the historical evidence supporting the Attainder and Treason Clauses as limits on Presidential power are contested. With the safety of the nation at issue and the stakes high, Jefferson’s admonition that we invoke the justice of the country, not that of the courts is more appropriate than ever.

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).

I would like to thank Professor Dehn for his thoughtful comments. There is much that we agree upon, and ample room for constructive engagement on the other matters at issue.

I agree that when considering the relevant Supreme Court precedent, it is important to pay close attention to the context of the decision when analyzing the scope of its holding. I believe that some further elucidation of the facts surrounding the litigation of the Prize Cases helps to explain why it unfortunately has not received the Court’s attention in the line of cases that flow from Hamdi. Distinguishing it would have been helpful to the analysis. It also helps explain why my position on the applicability of the Bill of Attainder Clause to the targeted killing of citizens is not foreclosed by those cases.

In the Prize Cases, the Court correctly concluded that the Civil War did not require the government to apply the legal framework of treason when disposing of the property of the purportedly seceded states’ citizens. This pragmatic approach appeared warranted after the nation had been split into two and each side possessed conventional armies. However, when those taking hostile action dispensed with the laws of war observed by uniformed soldiers of a purported belligerent state—as the Booth conspirators, for example, had done—they were then liable to be tried for treason. Ex Parte Milligan recognized that these trials must take place in Article III courts, which can be trusted to apply the protections of the Treason Clause. The alleged crimes of Anwar al-Awlaki are clearly more comparable to those of Josiah Phillips or John Surratt than the wrongs at issue in the Prize Cases; those latter cases also did not involve executions and accordingly did not implicate the Bill of Attainder Clause.

I agree wholeheartedly with Dehn that congressional authorization for military action is a fundamental principle of our constitutional order, so much so that I am deeply troubled by the president’s recent assertion that he can commit American forces to military action in Libya without even a debate in Congress, and in clear contravention of the War Powers Resolution of 1973. However, the Bill of Attainder and Treason Clauses were clearly intended to be applicable even after a congressional declaration of war or similar initiation of hostilities. The act of treason (the Constitution establishes this as the authoritative and exhaustive definition) is only committed when one adheres to or provides aid and comfort to the enemies of the United States. In the formal legal sense of the word, a state only has enemies in wartime. This is conclusive evidence that the Framers intended that the clauses apply in the course of hostilities, as James Madison’s actions with respect to “Clark the Spy” during the War of 1812 also indicate.

Most importantly, it is vital to understand that the Framers’ motivation in drafting the Bill of Attainder and Treason Clauses was precisely to prevent any branch of government from being able to label an alleged traitor during wartime or a rebellion as an enemy or an outlaw, i.e., a particular person who could then be killed on sight under any circumstances, even when attempting surrender, without judicial process. This, of course, had also been the impetus for the affirmation of the rights contained in Clause 29 of the Magna Carta, which the Framers sought to indicate (in the Ninth Amendment) had been retained by the people. Neither wars, rebellions, nor any other emergency could suspend this section of the Great Charter or provide exceptions to its ironclad guarantee, which was particularly dear to the Founding Fathers.

Likewise, Congress cannot itself create exceptions to the Bill of Attainder Clause, which had been designed to extend the reach of the Magna Carta’s ban on extrajudicial death warrants to encompass legislative acts. This Clause binds Congress explicitly and has no exceptions. Congress cannot approve of or delegate an action that it is constitutionally forbidden to perform itself. Accordingly, no form of Congressional approval for an extrajudicial order to kill a citizen can ever render it legal.

I would also note in passing that I do not believe that the AUMF permits military action in Yemen, although as a legal historian, I lack the scholarly qualifications to come to a definitive conclusion on the matter. Still, I would note that there is evidence that this is the way Congress has interpreted that statute: one section of the recent Resolution of the House of Representatives to reauthorize the USA-PATRIOT Act would grant the president the power to use military force worldwide against suspected terrorists and the states that purportedly harbor them, in what I fear is a catastrophic abnegation of Congress’ responsibilities under Article I.

Finally, I have concluded that Supreme Court precedent is not particularly helpful on the question of the attainder of alleged traitors. Here, we are confronted with a constitutional violation so severe that it has never occurred in the history of our republic: no Congress (much less a president) has even attempted to attaint a citizen since 1787. Accordingly, by necessity we must return to the question of the Framers’ understanding of the issue, rather than attempting to put together a patchwork of precedents—none of which are squarely on point—to determine whether or not an executive death warrant should be deemed lawful. While the latter approach may be a useful exercise when attempting to predict the Court’s ultimate decision, I believe that constitutional scholars must aspire to be oracles of the law, rather than merely prognosticators of potentially problematic decisions to come.

I also believe that legal scholars should reject the presumption that the courts’ decisions are correct statements of the law when these fail to respect the basic guarantees of our Constitution. Chief Justice Taney’s plurality opinion in Dred Scott v. Sandford concluded that an African-American could never be the citizen of any state. This was inconsistent with original intent and was never the correct interpretation of the constitutional text; it did not become any more correct for having been announced from the bench. (I sincerely hope that someday the plurality opinion in Hamdi, even though the majority of its holding has no legal force owing to the partial concurrence, is recognized as a blot on the escutcheon of American jurisprudence.) In situations that are either novel or where the Court has gone astray, scholars must return to the more fundamental task of faithfully interpreting the original meaning of the Constitution.

Should we do so in this case, we will quickly recognize that al-Awlaki has been attainted, something which is impermissible even after a congressional declaration of hostilities, whether or not it extends to Yemen. Our Constitution requires that he be tried in an Article III court, in absentia if necessary. To do otherwise would be to ignore the clear meaning of the constitutional text and instead to delude ourselves with the sonorous scrutiny of a morass of irrelevant technicalities. We must not preoccupy ourselves with legal fiddling while our liberties burn.

I would like to thank Professor McNeal for his bold and stimulating response to my essay. I am glad that he agrees that a traitor may only be executed after conviction in an Article III court, and I reassure him that my argument is not as restrictive as the maximalist reading that he presents. To explain, I should set forth the established definition of a bill of attainder.

An attainder is not the act of killing a citizen; this act is an order from a nonjudicial branch of the government authorizing that action, whether or not it is carried out. This is how Josiah Phillips was deprived of his rights. The fatal wounding of someone pointing an RPG at the White House would not implicate the Attainder Clause’s protections, and accordingly its legality would need to be determined by reference to common-law principles. All killings, other than those of individuals specifically targeted by legislation or executive act, fall outside of the Clause’s scope—including the shooting of someone in self-defense. That said, the burden of proving that a defense to homicide exists will rest on the aggressor; they might be called upon to establish the existence of circumstances that excuse them for having deprived someone of their right to life.

The Framers considered a bill of attainder an unmitigated evil in part because it authorizes the killing of a citizen under any circumstances, and serves as an a priori defense to any claim that a citizen was unlawfully killed. Whether the person attainted is attempting to surrender, demanding a chance to prove his innocence, or simply sleeping in his own bed, he may be killed. On my understanding of McNeal’s reading of the political question doctrine, the shooting of a nonthreatening, factually innocent person pursuant to a targeted killing order could never be challenged in any court. Does this really seem compatible with the rule of law and our Constitution? And if the courts do not have jurisdiction to consider the legality of an executive act that would deprive a citizen of life without due process, then what good are they?

That the Framers had this view of attainder is beyond cavil. While my lead essay’s quotations from future Chief Justice Marshall and Attorney General Randolph were exemplary, leading historian Leonard Levy also noted that “[t]hese remarks demonstrate the profound repugnance with which a bill of attainder was regarded by fair-minded men,” a group in which I would include all the Founding Fathers. The American patriots had also been made acutely aware of these evils by the attainting of the British “symbol of liberty” John Wilkes, which also contributed to their negative assessment (as did the fact that the Framers themselves were under threat of being attainted by Parliament for treason). Furthermore, given my earlier reference to the fact that the Clause was passed unanimously—in fact nemine contradicente—I rather think that the burden of the opposing claim rests on McNeal. Since it appears that he has no argument to the contrary, and merely questions the relevance of my historical evidence with his doubts, the rules of rational argument indicate that he must tentatively accept my assertions about the Founding Fathers’ views of attainder.

I must admit that I am rather puzzled by McNeal’s assertion that Hobbes was an influence on the judgments of the Framers, unless this is merely an uncontroversial reference to his theory of the social contract as radically reformulated by Locke and Montesquieu. Hobbes was an avowed monarchist who believed that Leviathan’s subjects must surrender their rights to an all-powerful sovereign—who cannot be bound to respect these rights in any way—so his core views were largely antithetical to the Framers’. His influence was largely negative: the thinkers that they respected the most had rejected these emphatically (see e.g., the section of my forthcoming article that discusses Sir Matthew Hale).

However, this assertion makes some sense when we consider the Hobbesian nature of President Jefferson’s justifications for trumping the Constitution with the doctrine of necessity. In the same letter of President Jefferson to John Colvin quoted by McNeal, Jefferson also stated that the “law of necessity and self-preservation … [renders] the salus populi supreme over the written law.” Speaking even more frankly in other letters, he argued for the necessity in “extreme cases” of resorting to “a dictator,” something he described as a “universal resource.” His views as president—which were diametrically opposed to those found in his Notes on the State of Virginia of 1781—are not those of the Founding Fathers at the time of the framing. Rather, they are proof of their collective conclusion that since power corrupts, only the stout strands of a written constitution could tie even a good man to the mast of the rule of law while its siren song plays. As James Elliot replied to Jefferson:

[W]e are told that the salus populi may have required and may require the lex suprema of military despotism. This doctrine is unknown to the Constitution. That sacred record of our rights proclaims itself and itself alone … the supreme law of the land. It acknowledges no superior. It contemplates no case in which the law of arms can erect a throne on its ruins.

My familiarity with the pamphlet literature of the American Revolution leads me to believe that this response reflects the Framers’ views much better than President Jefferson’s letters.

I often feel that if we acquainted ourselves with the Framers’ motivations and ideals, there would be far fewer examples of the fallacy of wishful thinking in modern legal scholarship. Namely, arguments such as “the Founding Fathers couldn’t have believed there were no exceptions to constitutional right X, because that would mean Y, and Y does not appear to be a pragmatic approach.” Every variation on this theme is as fallacious as “it cannot rain tomorrow, because we’ll be picnicking and that would ruin everything.” The Framers had uncompromising ideas about liberty, rights, and limited government; they bound us to constitutional principles that McNeal might find burdensome. I mentioned a potential debate discussing these principles in my lead essay because I believe that it is the proponents of targeted killing of citizens who would need to create popular support for a constitutional amendment that would allow for this action, should they so choose, because the Framers’ Constitution does not allow it.

I find it remarkable that McNeal would point to the federal protective power (a judicially created doctrine which has been invoked to allow a marshal the right of self-defense on behalf of a Justice and to allow the National Guard to restore order during riots) as a trump card over the clear wording of unambiguous clauses of the Constitution that protect us against nonjudicial death warrants. If that doctrine establishes that salus populi is supreme and the executive branch is the sole judge of the necessity of overriding our Constitution, then I would fear for the republic. Fortunately, I cannot imagine it ever being extended that far.

Finally, I believe that any conclusion that the Constitution is too challenging for us to interpret would be a serious renunciation of our scholarly vocation. If the Constitution has no determinable meaning (or one that only the president can discern), then we do not live in a nation of laws. It is our ever-present duty to uncover and publicize its meaning, rather than to shrug and to be glad of the fact that some purported complexity (that we might have created ourselves with inartful analysis) disposes of all limitations on arbitrary government. Fortunately, by means of this debate we are helping to establish that the meanings of the Bill of Attainder and Treason Clauses are clear and unambiguous, and that the order targeting al-Awlaki violates both.

I thank Professor Alford for his measured response to my essay. I will discuss the key issue it raises. His invocation of Ex parte Milligan also prompts me to briefly address the relevance of the location of a citizen to my general thesis regarding the amenability of citizens to war measures—a topic I earlier eschewed in an endnote.

Professor Alford and I disagree regarding one key point: the fundamental legal nature of targeted killing. Professor Alford’s argument appears to essentially rest on the proposition that, from the perspective of our Constitution, all executive or legislative orders to kill a specific citizen have the effect of branding them a traitor and imposing punishment. This is why I, and perhaps also Professor Larson, emphasized that targeted killing in armed conflict is not “punishment.” Johnny Reb could lawfully be targeted in the course of Civil War hostilities. He could also be prosecuted and punished for treason if captured (though commentators of the era suggested that such prosecutions were properly instituted only against leaders of rebellions).[1] For the latter, the Constitution requires the testimony of two witnesses to the same act or a confession in open court, but this is not so of the former. Each act has a distinct legal character, and a distinct basis in the Constitution.

Indeed, what Professor Alford describes as the “evil” on the Framers’ minds when drafting the Bill of Attainder and Treason Clauses would not permit targeted killing in armed conflict. The laws of war only permit targeting of “combatants” (or “fighters”) and civilians or non-combatants actively taking a direct part in the hostilities of an armed conflict. Those considered hors de combat, meaning “out of the fight,” may not be. But as Alford explained in his response to me,

“it is vital to understand that the Framers’ motivation in drafting the Bill of Attainder and Treason Clauses was precisely to prevent any branch of government from being able to label an alleged traitor during wartime or a rebellion as an enemy or an outlaw, i.e., a particular person who could then be killed on sight under any circumstances, even when attempting surrender, without judicial process.” (emphasis mine)

In his response to Professor McNeal, Professor Alford said,

“The Framers considered a bill of attainder an unmitigated evil in part because it authorizes the killing of a citizen under any circumstances, and serves as an a priori defense to any claim that a citizen was unlawfully killed. Whether the person attainted is attempting to surrender, demanding a chance to prove his innocence, or simply sleeping in his own bed, he may be killed.” (emphasis mine)

I earlier argued that for the targeted killing of a citizen to be permissible, it must occur in the context of an armed conflict and be consistent with the laws of war. As the State Department Legal Advisor made clear in relation to the killing of Osama bin Laden, combatants in an armed conflict must be allowed to surrender if they clearly manifest the intent to do so. This is because at the point they surrender they are “out of the fight.” Although demonstrating a clear intent to surrender may be somewhat difficult in al-Awlaki’s case, it is certainly not impossible. Thus, my argument for targeting him does not meet Professor Alford’s legal description of attainder, and helps to explain why such killing is not “punishment” for treasonous acts.

Although deserving of more research, I think it possible that the evil Alford describes has a somewhat different historical origin. Traditionally, certain individuals were thought to be “enemies of mankind” who could be summarily punished (usually executed) when encountered. These included pirates, highway robbers, and other outlaws whose conduct was essentially considered private war-making and punished as contrary to the law of civilized peoples and nations. In the context of armed conflict, “irregular” or “guerilla” fighters also fell into this category. For example, article 82 of the Lieber Code of 1863 (issued by President Lincoln to Union forces as General Orders 100)—largely credited as the first codification of the laws of war—stated,

“Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers—such men, or squads of men, are not public enemies, and therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.” (emphasis mine)

I think it possible, even likely given Alford’s description and analysis, that an attainder was effectively a declaration that a given citizen was a conceptually similar “enemy of the crown” (or “sovereign” or “state”) condemned to certain death as punishment for disloyalty. If so, the function of the Bill of Attainder Clause would be to clarify that in matters of routine domestic governance, including such matters occurring incident to an armed conflict, any such executive or legislative declarations are prohibited.

It goes without saying that an armed conflict is anything but a matter of routine governance. The challenge is and always has been one of line-drawing—of distinguishing between crimes of violence or acts of dissent and acts of war or treason. Oklahoma City federal building bomber Timothy McVeigh no doubt “waged war” in some sense against his government. But would his personal war, even if he had eluded capture and successfully attacked again, be considered an armed conflict in which he could be lethally targeted on sight and without trial? That seems highly unlikely. While I make no firm assertion regarding whether Al Qaeda in the Arabian Peninsula is currently engaged in armed conflict against the United States, or whether Anwar al-Awlaki is properly targeted in any such conflict, available information suggests that this is at least plausibly the case. Judicial review in appropriate cases should demand adequate proof of such claims.

This important difference between matters of “routine” governance incident to war and those considered an essential aspect of war was essential to the Court’s decision in Ex parte Milligan. Lambdin P. Milligan was a twenty-year resident of the state of Indiana. He was convicted by a military commission for various acts sympathetic to or aiding the Confederacy and sentenced to death by hanging. While he successfully challenged the jurisdiction of the military commission in the Supreme Court, the Court did not establish an absolute constitutional requirement for Article III court trials as Professor Alford suggests. It noted that in Indiana, “the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances.”[2] It then found that “[m]artial law cannot arise from a threatened invasion.” Instead, “[t]he necessity must be actual and present; [where] the invasion …effectually closes the courts and deposes the civil administration.”[3] In other words, contrary to what Professor Alford suggested, the Court did not completely foreclose subjecting citizens to these purely executive tribunals capable of imposing capital punishment. It merely limited the use of such tribunals to areas of conflict where the civil authority was unable to function.[4] In fact, purely executive military commissions regularly punished southern enemy belligerents and civilians during the Civil War. In Ex parte Quirin, the Court distinguished Milligan and held that enemy belligerents, including putative U.S. citizen Herman Haupt, were subject to military commission jurisdiction even within friendly U.S. territory when the courts are open.[5]

The upshot of these decisions appears to be that enemy belligerents, including citizens, are generally subject to war measures permitted by the laws of war no matter where they are. Civilian citizens sympathetic to or supporting enemies of the United States are not, particularly not in U.S. territory under the control of our civil authorities whether in peace or war.[6]

If Anwar al-Awlaki is properly classified as an enemy belligerent or takes a direct part in an armed conflict against the United States, the Constitution permits his individualized lethal targeting, particularly in a foreign land under the control of no authority at all, whether U.S. or foreign, civil or military. If he is simply a civilian sympathizer and spiritual leader supporting enemies of the United States, he is not subject to lethal targeting under the laws of war, and therefore must generally be prosecuted in Article III federal courts if he is to be punished for his disloyal acts.

Notes

[1] See, for example, Henry Halleck, Elements of International Law and Laws of War (Philadelphia: J.B. Lippincott & Co., 1866), at 154-55.

[2] Ex parte Milligan, 71 U.S. 2, 121 (1866).

[3] Id. at 127.

[4] For a discussion of concepts of military and imperative public necessity in war, see the forthcoming Temple Law Review article referenced in my earlier essay.

[5] Ex parte Quirin, 317 U.S. 1 (1942).

[6] See Duncan v. Kahanamoku, 327 U.S. 304 (1946) (overturning military commissions trials in Hawaii conducted even when civil authority was reestablished after the Pearl Harbor attacks).

First, I would like to thank Professor Larson for his incisive analysis of this issue. I am very glad to hear that there is so much upon which we both agree. Like him, I believe that the implications of a targeted killing order naming an American citizen are staggering.

Additionally, I would like to point out that while my view is that analysis of broader issues are simplified by first considering whether the Bill of Attainder Clause applies squarely to the presidential orders targeting American citizens, I am not hostile to Larson’s argument that the Clause may also provide some protection to noncitizens. I am not committed firmly to the position that citizens accused of terrorism should necessarily receive more of the benefit of due process that noncitizens. However, should this argument prove untenable, a clear reason why Americans receive these constitutional protections would still remain: the Constitution of the United States clearly guarantees them to citizens.

I think the question of the importance of paying attention to the formalities of the supreme law of the land leads me to an implicit disagreement that I may have with Larson (which also came to the surface in my reply to Professor McNeal). First, I should note that my argument was never designed to be a guide for American foreign policy, but rather an uncompromising response to actions that I believe violate bedrock rule of law principles. As for the objection that I am excessively formalistic: even if all that the Bill of Attainder and Treason Clauses require is the observance of some nominal requirements (as the Constitution does in many areas that are not nearly as fundamental), any argument that justifies flouting such a requirement would still be extremely dangerous. It would serve to validate the idea that any one person, perhaps the President, can discern what the Constitution is “good for” and ignore what they find superfluous, even when it involves the fundamental guarantees of due process.

This is precisely the evil that a written constitution is designed to avoid, and this pragmatic perspective is also dangerously presumptuous. The law is a collection of learned views that accumulated over time, which no man can ever understand more adequately than its collective authors. Merely because we cannot see a law’s purpose does not mean that one does not exist, as Sir Edward Coke and Edmund Burke often reminded us. The practice of law is not merely one of searching for loopholes to please one’s client. Our vocation requires us to approach the texts that we swore oaths to uphold and that comprise the supreme law of the land with a sense of fidelity and discipline, even when they exceed our understanding. This is particularly important for those who wield the power of the state: if they are permitted to act is if constitutional restraints are mere nuisances, rather than time-tested principles that protect against the creeping encroachments of arbitrary power, certain traditions that had quietly protected us for centuries might suddenly seem vital—but only in retrospect.

This assessment leads to my answer about what the Bill of Attainder Clause is good for, if it only protects against nonjudicial orders that mark out individuals for death by name. Before this order targeting al-Awlaki, there were only two types of responses one might take against an American who took up arms against the United States. The first was to treat him like a criminal: arrest him and try him for treason in an Article III court, as Larson agrees is necessary should he be captured alive. Were he to be killed while resisting arrest, a court might then be called upon to decide whether the doctrine of self-defense excuses this homicide. The second approach would be to authorize the military to fight against the enemy that shelters the traitor. However, should he then be killed in irregular circumstances (such as while attempting to surrender) we might need to determine whether this was consistent with the laws of war. In either case, there is a clear legal framework to determine whether or not the killing was lawful, something which is vital for the preservation of the rule of law.

When the President authorizes the targeting of a citizen with an executive order, both of these frameworks are circumvented in a very problematic manner. I have no doubt at all about the constitutionality of sending armies out into the field to engage a rebellious enemy.[1] However, I believe this analogy clearly fails.

By authorizing the killing of a particular citizen, whether he is arrayed in battle or sleeping in bed, the President has circumvented restraints on his power by creating a third and extraconstitutional category alien to both the law of war and the principles of justice. Furthermore, the Framers would have recognized this purportedly new category for what it is: extrajudicial outlawry. (As the furor over Josiah Phillips’ case demonstrates, a revulsion of outlawry had also in part motivated the passage of the Bill of Attainder Clause.) In approving of the killing of a citizen under any circumstances by means of a nonjudicial order, when that person has never had access to the courts either before or after the determination to do so was made, we have again surpassed the boundaries of a medieval practice that was itself repugnant to the Framers.

In designing a purportedly new category of killing (which is akin to but much worse than the Bush administration’s controversial creation of the novel status of “enemy combatant,”) the Obama administration sought to create another gray area that allows for actions that would not be allowed under either existing legal framework. Shouldn’t the fact that we are outstripping even long-shunned medieval practices upset us? If not, will we finally become outraged when we realize that an order may now be issued specifying that a particular citizen can be killed, under any circumstances, even if they are nonthreatening and attempting surrender —on the basis of nothing more than allegations from the executive?

We must not lose sight of the most essential fact: the accusations lodged against al-Awlaki are exactly that. Despite what any of us might think about his obvious guilt, this has never been proven in a court of law: he is being subjected to targeted killing after what the President has argued (in Al-Aulaqi v. Obama) was a review within the executive branch that purportedly provided the requisite due process. Neither you nor I (nor even the president) should possess the power to assume the facts that justify the death of a citizen without an adversarial proceeding. Unfortunately, we see in the submissions to the District Court (and in leaked statements to the media from the executive branch) the traces of a third paradigm of justice, one in which the President’s determination, unreviewable and made in secret, allegedly constitutes adequate due process under the law of the land.

The targeted killing of American citizens, by means of nonjudicial declarations of outlawry and executive death warrants, circumvents both ius in pace and ius in bello. Allowing the president to declare a citizen an outlaw, who then effectively has no legal rights and can be killed on sight pursuant to the president’s order to do so, dispenses with the centuries of collected wisdom about due process and the rule of law embodied in the U.S. Constitution. It demands a vigorous response, and not just drawing-room disapproval.

Note

[1] I hope Larson will excuse my idiosyncratic translation of Magna Carta’s Clause 29—and my following the English practice of using the numeration of the statutory enactment—but I find the English phrase “send against” rather too anodyne, given the bloodthirsty intent.