June, 2011

Outlawry and Indeterminacy: Mere Formalistic Concerns?

by Ryan Alford
The Conversation
June 17th, 2011

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 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 [...]

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Not Lambdin Milligan or Timothy McVeigh, but Johnny Reb?

by John C. Dehn
The Conversation
June 17th, 2011

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 [...]

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The Constitutional Text and Judicially Created Doctrines

by Ryan Alford
The Conversation
June 14th, 2011

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 [...]

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Al-Awlaki Is Not Johnny Reb

by Ryan Alford
The Conversation
June 14th, 2011

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 [...]

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A Difficult Issue

by Carlton F. W. Larson
Reaction Essay
June 13th, 2011

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

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The Federal Protective Power and Targeted Killing of U.S. Citizens

by Gregory S. McNeal
Reaction Essay
June 10th, 2011

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

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Targeting Citizens in Armed Conflict: Examining the Threat to the Rule of Law . . . in Context

by John C. Dehn
Reaction Essay
June 8th, 2011

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

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Sentence First, Verdict Afterwards

by Ryan Alford
Lead Essay
June 6th, 2011

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

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