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A panel of the U.S. Circuit Court of Appeals for the District of Columbia Circuit heard oral argument in the appeal of Trump against the ruling of District Court Judge Tanya Chutkan’s ruling rejecting Trump’s motion to dismiss the case against him brought by Special Counsel Jack Smith for election interference related criminal charges.
Circuit Court Judge Florence Pan asked Trump’s lawyer John Sauer if a president would be immune from criminal prosecution if he had ordered Seal Team 6 to assassinate a political rival. Trump is claiming that any act of a president may be criminally charged only after impeachment and conviction. (You might think of this as a requirement for a super grand jury.) Sauer argued that any lesser threshold would expose presidents to potential liability for official acts that were not the subject of an impeachment. As an example, he gave an action against President Obama for ordering a drone strike killing an American citizen.
That wasn’t a hypothetical; it actually happened.
The al-Aulaqi Case—President Obama Orders a Drone Strike on a US Citizen
The United States Court of Appeals for the Second Circuit ruled on June 23, 2014 that the U.S. Government was required to release a legal opinion (the al-Aulaqi Opinion, beginning at page 69) concerning the legality of killing a U.S. citizen in Yeman. This was in response to a lawsuit brought by The New York Times (NYT) and others to enforce rights under the Freedom of Information Act (FOIA). The court's decision itself (the first 68 pages in the footnote link) is mainly of interest to FOIA specialists. I address some of the reporting and editorials on the al-Aulaqi Opinion and how it interprets or misinterprets the content and reasoning of the opinion. What this portion of the media is looking for, an explanation of why the government decided to kill a US citizen by drone attack, is not answered by a legal analysis of whether it is lawful.
The Linked News Articles See the al-Aulaqi Opinion as an Attempted Justification
The United States Court of Appeals for the Second Circuit has released a long-secret memo in which the Obama administration lays out its legal reasoning for launching a drone attack on an American citizen overseas. NPR1
The U.S. government memo providing legal justification for a drone strike that killed a U.S. citizen belonging to an al-Qaeda affiliate was ordered released by a federal appeals court. Bloomberg2
Under orders from a federal appeals court, the Justice Department made public a 2010 memo explaining why the drone strike was legal. NYT3
We finally know the legal argument the Obama administration used to justify killing American citizen and alleged al-Qaeda operative Anwar al-Awlaki in a 2011 drone strike in Yemen. Vox4
As a corporate law firm and in-house lawyer, I often heard from non-lawyers the magical phrase “legal says it's ok.” Oh, sure, end of discussion. Right.
Often, what the legal department said was more like
You have asked whether [some specified activity] has [some legal consequence] based on [a laboriously extracted set of existing facts and proposed actions]. ... [discussion of applicable law] ... [leading to a conclusion] that it is our opinion that if properly briefed, a court having jurisdiction [would] [although the matter can not be free from doubt, should] hold that [the activity] is not in violation of applicable law.
Counsel would not include any of the following additional sentiments: stupid, unfair, incredibly bad idea, brilliant, go team!, the sin upon my head, dread sovereign.
In this case, the opinion addressed a very specific legal question: does a specific federal statute (Title 18 United States Code Section 1119, the Murder Abroad Statute)5 that prohibits the killing of a US national abroad apply to the Department of Defense (DoD) or the Central Intelligence Agency (CIA) killing of a specific US citizen in Yemen, Anwar al-Aulaqi, based on the facts and circumstances provided?
The legal memo does not address whether such a killing is sound policy, helpful or counterproductive or if it crosses a line that shouldn't be crossed to avoid erosions of civil liberties at home. Those are not legal questions; they are political questions. The legal question is not even “is this permitted?” The legal question is, rather, “is it a crime?” The answer, in this case, that it is not a crime is not a policy justification. There is no end of things that government can do that are not criminal, but that doesn't make them justified.
The opinion was not a justification, nor was it meant to be.
Getting Away With Murder
Barron [the lawyer who signed the legal memo] relies on something called the “public authority: justification, which allows government officials to break the law when doing so is authorized by “proper public authority” — i.e., other laws that give them legal authority to take an otherwise illegal action. Vox
The main theory that the government says allows it to kill American citizens, if they pose a threat, is the “public authorities justification,” a legal concept that permits governments to take actions in emergency situations that would otherwise break the law. NYT
At common law, as taught in law school, murder is the killing of a human being with malice aforethought without justification, excuse or mitigation. Malice aforethought is essentially killing on purpose. Excuse is self-defense or defense of others in immediate danger and mitigation is the various facts and circumstances that reduce the killing to the lesser offense of manslaughter.
Justification covers all the situations where deadly force is authorized by law: wardens and executioners on death row, snipers taking down a school shooter, soldiers returning fire, cops taking down a suspect who pulls a weapon. These killings are simply not murder, not because of who commits them, but because the killings are in situations necessary to prevent greater harm. (Needless to say, the specifics are always open to debate.)
The main question in the legal memo was whether the [Murder Abroad Statute] criminalizing the “unlawful killing” of US nationals abroad applied to killings by the DoD or CIA based on a concept similar to the “justification” carveout for common law murder. In other words, is there such a thing as a “not unlawful killing” for purposes of the statute?
Read the the al-Aulaqi Opinion carefully and you will find an analysis of the legislative history of the statute. This is needed when no judicial decision on the interpretation of the statute is available. The opinion concludes that Congress must have intended the statute to work similarly to other federal laws in this respect. If the government is authorized to apply deadly force, resulting killings are not “unlawful killings” and are not, therefore, criminal under the Murder Abroad Statute.
What Killings Are Not Unlawful?
To justify the Awlaki killing, Barron relies heavily on the 2001 Authorization for the Use of Military Force (AUMF)6, the law that Congress passed to permit striking al-Qaeda post-September 11th, and which was used to justify the US-led investigation [sic] of Afghanistan. Vox
The legal justification concerns the drone strike that killed Anwar al-Awlaki, a U.S. citizen who the United States claims was tied to plots against the U.S. and played a key role in al-Qaida in the Arabian Peninsula. NPR
Congress has never explicitly authorized an exception for official killing in this kind of circumstance, as the memo acknowledges. NYT
Having concluded that the statute criminalizes only "unlawful" killings, the opinion next considers what laws authorize killings in the circumstances contemplated. The opinion considers Public Law 107-40, enacted on September 18, 2001, the Authorization for the Use of Military Force (AUMF), which provides
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
The step-by-step breakdown is straightforward
* The President is authorized to use force
* force must be necessary and appropriate
* it must be directed against entities involved in the 9/11 attacks
* the President is responsible for identifying them
* it must be for the purpose of preventing future terrorism against the United States
Key terms are left undefined: necessary and appropriate and the al-Aulaqi Opinion looks to the law of war to interpret them. This is brought in by a Supreme Court decision, Hamdi v. Rumsfeld7, that found that the detention of a US citizen captured on the battlefield in Afghanistan was authorized by AUMF was “so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.” The discussion of international law addresses the question whether killing, like detention, is an incident of war and the limitations imposed by the War Crimes Act8.
What About The Bill of Rights?
A U.S. government legal opinion used to justify a drone attack that killed American citizens and alleged Al Qaeda in the Arabian Peninsula leader Anwar al-Awlaki contains little analysis of the constitutional issues at stake and dwells primarily on dismissing arguments that carrying out such an attack might constitute murder under U.S. criminal law. Politico9
one might have expected [of the legal memo] a thoughtful memo that carefully weighed the pros and cons and discussed how such a strike accords with international and Constitutional law. NYT
The opinion discusses two the Fourth and Fifth Amendments to the US Constitution in the Bill of Rights10.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Fourth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Fifth Amendment
These topics receive less attention in the al-Aulaqi Opinion because Supreme Court precedent, in the judgment of the opinion's authors, provides the guidance required.
With respect to the Fourth Amendment's restrictions on seizure [the al-Aulaqi Opinion] notes the leading case, Tennessee v. Garner,11 in which the Supreme Court in 1985 dealt with the police killing of a fleeing, unarmed suspect. The Court stated “apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Whether a seizure is reasonable depends on the facts and circumstances that determine the balance between the public interest in law enforcement and the citizen's strong claim on life. The Court concluded
Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.
For the Fifth Amendment due process analysis, they again turned to Hamdi v. Rumsfeld, in which a plurality of the Justices decided that
the process due in any given instance is determined by weighing “the private interest that will be affected by the official action” against the Government's asserted interest, “including the function involved” and the burdens the Government would face in providing greater process.
In other words, due process in the AUMF context depends on another balancing of interests of the citizen and the government and the practicalities of increased degrees of due process. While the al-Aulaqi Opinion quotes passages from Hamdi v. Rumsfeld to support its conclusion that the government's interest in preventing future terror attacks and the impracticalities of providing additional process, it ignores the holding of that case:
We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker.
I have not done any independent legal research into these questions. Here, I have been intending to describe what the opinion does do (decide whether the proposed killing violated law) and does not do (weigh the factual bases for the government's identification of the target or recommend whether the killing should occur). I have not been concerned with whether the al-Aulaqi Opinion adequately considered legal precedents and authorities and soundly reasoned to its conclusion. That was not my purpose and I look forward to reading academic critiques on those questions.
The failure to address the holding in Hamdi v. Rumsfeld is, however, inexplicable. Two issues should have been addressed:
- If a detainee has the right to challenge his classification as a combatant, why does a target not have the right to challenge his classification as a member of an organization that the President has determined is subject to AUMF?
- Does the target waive his Fourth Amendment rights by not challenging the government's classification?
It should be noted that Hamdi v. Rumsfeld suggests that due process might not avail much because of the deference due to the Executive Branch in its exercise of war powers. (“All right boys! We'll give ‘em a fair trial and then we'll hang ‘em!”)
The Missing Rationale
Assuming that the drone strike was consistent with applicable law, we still do not know important specifics in this case, because the opinion neither addresses them nor was it designed to address them.
- Was the target a member of a 9/11 organization?
- How do we know?
- Why do we think he was planning to act against the US?
- Why could we not have sent an extraction team in?
- Is it a good idea to kill people with drones?
The answers that the Obama Administration would offer to these questions are, I suspect, the same as a past or future Administration would offer: first and last, “yes” and for the rest “we won't say.”
This is the problem of Executive Power: we want the President to act but we also want to look over his or her shoulder while they are. In this case, it is possible to concede the legality of drone strikes on US members of al-Qaida without approving the policy. And that is a political, not a legal debate.
Sauer’s example proves too much, as James Pearce, arguing for the United States pointed out. The rule of law, consisting of prosecutorial ethics, grand juries, trial juries, trial judges and appeal judges limit the abuse of criminal prosecution for political ends.
