Sentence First, Verdict Afterwards

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.

Also from this issue

Lead Essay

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

Response Essays

  • 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.

  • 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.

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