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.