Outlawry and Indeterminacy: Mere Formalistic Concerns?

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.


[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.

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.