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February 16, 2013 -
No. 7
Necessity for an Anti-War
Government
Obama Doctrine Promoting Drone
Warfare,
Global Lawlessness, Anarchy and Violence
Necessity for an Anti-War Government
• Obama Doctrine Promoting
Drone Warfare, Global Lawlessness, Anarchy and
Violence
For Your Information
• Lawfulness of a Lethal
Operation Directed Against a U.S. Citizen Who Is
a Senior Operational Leader of Al-Qa'ida or An
Associated Force - U.S. Department
of Justice White Paper
Necessity for an Anti-War
Government
Obama Doctrine Promoting Drone Warfare,
Global Lawlessness, Anarchy and Violence
U.S. imperialism is codifying
in theory and practice the violation of rights and
absolutist dictum "might makes right"
Something is rotten in the state of the United
States of America. The U.S. state is an unweeded
garden of things rank and gross in nature. The
peoples of the world are aghast as they witness
the fish rotting from the head down.
President Obama leaked a White Paper to entice
policy discussion on how far to drag this modern
country into a global lawless war against everyone
including its own citizens. With an interview with
John Brennan, Obama's nominee for director of the
CIA, the Senate Intelligence Committee and the
mass media led the charge to disinform public
opinion so as to make sure there is no organized
opposition to the state-organized denial of
rights, lawless violence and anarchy. The ensuing
policy discussion featured official voices from
the U.S. left and right, from conservatives and
liberals, from Republicans and Democrats differing
only in what constitutes exceptional circumstances
when state-organized violation of rights, military
and other interference in sovereign states,
incarceration without trial and lethal violence
are justified.
 Not
one official voice has protested and declared
Obama's endless drone war and policy discussion to
deprive people of their rights as illegal, wrong,
unprincipled, backward and immoral, a theory and
practice dragging humanity towards catastrophic
self-destruction.
Not one official voice has said resolutely and
clearly that Obama's drone war and policy
discussion to deprive people of their rights
violate principles that have been won throughout
the last three hundred years including:
- the enlightenment movement;
- the capitalist revolutions overthrowing
obscurantism, hereditary right and petty
production of the feudal era;
- the successful revolt of the thirteen British
colonies in North America to break with colonial
rule and govern themselves;
- the development of the sovereign nation state;
- the 1917 Russian socialist revolution and
establishment of the first state ruled by the
working class in alliance with the peasantry;
- the 1945 victory in the anti-fascist war;
- and, the proletarianization of the world's
working people and their actions with analysis to
affirm their right to be and for a say and control
over the direction of the economy and politics.
Not one official voice has said Obama's drone war
and policy discussion to deprive people of their
rights violate the modern conception of rights.
Rights do not exist on a hereditary basis,
conferred by a Divine Power. They do not exist on
a natural basis either, whereby ownership of
property enshrines better access to some and no
access to others. A modern conception of rights
defines them according to everything that human
beings require to realize the quality of being
human. Rights belong to human beings by virtue of
their being human. Rights are not privileges that
can be violated through executive privilege and
royal prerogative. They cannot be given, taken
away or forfeited in any way. Violation of rights
for whatever reason is unacceptable in the modern
era. Violation of rights combined with modern
military weapons such as armed drones leads to
global disequilibrium and disintegration of entire
societies. Such theories and practices of the
leader of U.S. imperialism will result in a global
arms race and deepening chaos and destruction as
other powerful states resort to similar practices
in the inter-imperialist and inter-monopoly
contention to exploit workers and seize raw
materials and spheres of influence within a global
lawless atmosphere of anarchy and violence.
The people organized into a united and determined
political force led by the working class must
deprive President Obama of the power to deprive
the peoples of the world of their rights of which
importantly is the right to live in peace and
security without interference from U.S.
imperialism and its military and subversive
forces. The people must deprive Obama of the power
to wage war on the peoples of the world, which is
what he is doing with his theory and practice of
drone warfare in the endless U.S. war on terror
and drugs.
 Security
for the people in the modern world lies in their
organized fight in defence of the rights of all
not in the denial of rights for whatever
high-sounding reason. Defence against terrorist
and other criminal acts cannot be found in denying
rights. Such state-organized denial of rights
engenders yet more acts of terror from individuals
and gangs aided and abetted by those same states
that deny rights and engage in interference and
invasions of sovereign nation states and the
suppression of rights such as the U.S., Britain,
France and Canada.
Acts of terror, dirty tricks, false flags and the
fomenting of tribal, clan and ethnic violence
directed against the people and their societies
are committed by dark forces financed and
connected with the espionage and military agencies
of the U.S. and other states. These criminal acts
must be dealt with through diplomacy and legal
systems at home and abroad. A state cannot declare
war against individuals or groups such as drug
gangs or Al Qaida. To do so undermines the legal
basis of the state itself exposing it as rotting
from the head down, a government unfit to rule and
a grave danger to all humanity. To declare a
general war on terror or drugs is not credible as
it leaves the hidden hand behind the criminal acts
unfound, unexposed and unpunished. General wars on
terror or drugs are meant to create conditions for
big power interference, military pressure and
regime change in states that are struggling to
affirm their right to be and find a way forward.
No political, economic, social or criminal
problem can be resolved through the denial of
rights. The modern world cannot survive without
principles and a political and legal system to
govern relations amongst the peoples and their
sovereign nation states. For the U.S. state to
practice and codify in theory its violations of
principles, rights and international law is to
declare itself a lawless state that depoliticizes
its own people and relentlessly attacks others.
Under conditions of monopoly capitalism, such a
state serves the most powerful private interests
in opposition to public right. Such a state
tramples on political and diplomatic
considerations under the dictum "might makes
right" spreading an absolutist atmosphere of
anarchy and violence. The people within such a
state serving the private interests of the most
powerful monopolies and their rich owners are duty
bound to deprive the state authority of its power
to deprive the world, its peoples and societies of
modern principles, politics, laws and rights.
The era of feuding medieval principalities, the
slave trade, colonialism, "might makes right" and
the absolutist politics of a ruling authority that
violated the rights of individuals and peoples
with impunity including their right to be was a
difficult period through which humanity travelled
and fought hard to overcome. To introduce medieval
notions and practices into the modern era together
with sophisticated and deadly weaponry and mass
media is a tragic farce that no one can or should
accept. The collective conscience of humanity
cannot and does not agree to yet another era of
denial of rights and the absolutist dictum "might
makes right." To do so within conditions of modern
weaponry would be catastrophic for humanity and
Mother Earth herself.
To its great shame, the Canadian government has
said nothing in opposition to Obama's theory and
practice of the violation of rights and endless
war. The fawning vassal Harper exceeds the U.S.
president in his zeal to promote and engage the
Canadian state in war and the denial of rights.
Let us together through organization and
resistance deprive those in authority of the power
to deprive humanity of its rights. Let us together
organize and fight for the awakening of the human
factor/social consciousness. The security of the
people lies in their organized fight in defence of
the rights of all!
Down with Obama's drone warfare and denial of
rights and Harper's slavish accord!
Through organization and resistance, the people
can bring into being an anti-war government and
hold the government to account to give the rights
of the people a guarantee, rights that they
possess by virtue of being human.
  
For
Your Information
Lawfulness of a Lethal Operation Directed
Against a U.S. Citizen Who Is a Senior Operational
Leader of Al-Qa'ida or An Associated Force
- U.S. Department of Justice White
Paper, December 18, 2011 -
This white paper sets forth a legal framework for
considering the circumstances in which the U.S.
government could use lethal force in a foreign
country outside the area of active hostilities
against a U.S. citizen who is a senior operational
leader of al-Qa'ida or an associated force[1] of al-Qa'ida --
that is, an al-Qa'ida leader actively engaged in
planning operations to kill Americans. The paper
does not attempt to determine the minimum
requirements necessary to render such an operation
lawful; nor does it assess what might be required
to render a lethal operation against a U.S.
citizen lawful in other circumstances, including
an operation against enemy forces on a traditional
battlefield or an operation against a U.S. citizen
who is not a senior operational leader of such
forces. Here the Department of Justice concludes
only that where the following three conditions are
met, a U.S. operation using lethal force in a
foreign country against a U.S. citizen who is a
senior operational leader of al-Qa'ida or an
associated force would be lawful: (1) an informed,
high-level official of the U.S. government has
determined that the targeted individual poses an
imminent threat of violent attack against the
United States; (2) capture is infeasible, and the
United States continues to monitor whether capture
becomes feasible; and (3) the operation would be
conducted in a manner consistent with applicable
law of war principles.
This conclusion is reached with recognition of
the extraordinary seriousness of a lethal
operation by the United States against a U.S.
citizen, and also of the extraordinary seriousness
of the threat posed by senior operational al-
Qa'ida members and the loss of life that would
result were their operations successful.
The President has authority to respond to the
imminent threat posed by al-Qa'ida and its
associated forces, arising from his constitutional
responsibility to protect the country, the
inherent right of the United States to national
self defense under international law, Congress's
authorization of the use of all necessary and
appropriate military force against this enemy, and
the existence of an armed conflict with al-Qa'ida
under international law. Based on these
authorities, the President may use force against
al-Qa'ida and its associated forces. As detailed
in this white paper, in defined circumstances, a
targeted killing of a U.S. citizen who has joined
al-Qa'ida or its associated forces would be lawful
under U.S. and international law. Targeting a
member of an enemy force who poses an imminent
threat of violent attack to the United States is
not unlawful. It is a lawful act of national self
defense. Nor would it violate otherwise applicable
federal laws barring unlawful killings in Title 18
or the assassination ban in Executive Order No.
12333. Moreover, a lethal operation in a foreign
nation would be consistent with international
legal principles of sovereignty and neutrality if
it were conducted, for example, with the consent
of the host nation's government or after a
determination that the host nation is unable or
unwilling to suppress the threat posed by the
individual targeted.
Were the target of a lethal operation a U.S.
citizen who may have rights under the Due Process
Clause and the Fourth Amendment, that individual's
citizenship would not immunize him from a lethal
operation. Under the traditional due process
balancing analysis of Mathews v. Eldridge,
we recognize that there is no private interest
more weighty than a person's interest in his life.
But that interest must be balanced against the
United States' interest in forestalling the threat
of violence and death to other Americans that
arises from an individual who is a senior
operational leader of al-Qa'ida or an associated
force of al-Qa'ida and who is engaged in plotting
against the United States.
The paper begins with a brief summary of the
authority for the use of force in the situation
described here, including the authority to target
a U.S. citizen having the characteristics
described above with lethal force outside the area
of active hostilities. It continues with the
constitutional questions, considering first
whether a lethal operation against such a U.S.
citizen would be consistent with the Fifth
Amendment's Due Process Clause, U.S. Const. amend.
V. As part of the due process analysis, the paper
explains the concepts of "imminence," feasibility
of capture, and compliance with applicable law of
war principles. The paper then discusses whether
such an operation would be consistent with the
Fourth Amendment's prohibition on unreasonable
seizures, U.S. Const. amend. IV. It concludes that
where certain conditions are met, a lethal
operation against a U.S. citizen who is a senior
operational leader of al-Qa'ida or its associated
forces -- a terrorist organization engaged in
constant plotting against the United States, as
well as an enemy force with which the United
States is in a congressionally authorized armed
conflict -- and who himself poses an imminent
threat of violent attack against the United
States, would not violate the Constitution. The
paper also includes an analysis concluding that
such an operation would not violate certain
criminal provisions prohibiting the killing of
U.S. nationals outside the United States; nor
would it constitute either the commission of a war
crime or an assassination prohibited by Executive
Order 12333.
I.
The United States is in an armed conflict with
al-Qa'ida and its associated forces, and Congress
has authorized the President to use all necessary
and appropriate force against those entities. See
Authorization for Use of Military Force ("AUMF"),
Pub. L. No. 107-40, S 2(a), 115 Stat. 224, 224
(2001). In addition to the authority arising from
the AUMF, the President's use of force against
al-Qa'ida and associated forces is lawful under
other principles of U.S. and international law,
including the President's constitutional
responsibility to protect the nation and the
inherent right to national self defense recognized
in international law (see, e.g., U.N. Charter art.
51). It was on these bases that the United States
responded to the attacks of September 11, 2001,
and "[t]hese domestic and international legal
authorities continue to this day." Harold Hongju
Koh, Legal Adviser, U.S. Department of State,
Address to the Annual Meeting of the American
Society of International Law: The Obama
Administration and International Law (Mar. 25,
2010) ("2010 Koh ASIL Speech").
Any operation of the sort discussed here would be
conducted in a foreign country against a senior
operational leader of al-Qa'ida or its associated
forces who poses an imminent threat of violent
attack against the United States. A use of force
under such circumstances would be justified as an
act of national self-defense. In addition, such a
person would be within the core of individuals
against whom Congress has authorized the use of
necessary and appropriate force. The fact that
such a person would also be a U.S. citizen would
not alter this conclusion. The Supreme Court has
held that the military may constitutionally use
force against a U.S. citizen who is a part of
enemy forces. See
Hamdi, 542 U.S. 507, 518 (2004)
(plurality opinion); id. at 587, 597 (Thomas, J.,
dissenting); Ex Parte Quirin, 317 U.S. at 37-38.
Like the imposition of military detention, the use
of lethal force against such enemy forces is an
"important incident of war." Hamdi, 542
U.S. at 518 (2004) (plurality opinion) (quotation
omitted). See,
e.g., General Orders No. 100: Instructions for the
Government of Armies of the United States in the
Field ¶ 15 (Apr. 24, 1863)
("[m]ilitary necessity admits of all direct
destruction of life or limb of armed enemies")
(emphasis omitted); International Committee of the
Red Cross,
Commentary on the Additional Protocols of 8 June
1977 on the Geneva Conventions of 12 Aug. 1949
and Relating to the Protection of Victims of
Non-International Armed Conflicts
(Additional Protocol II) §
4789 (1987) ("Those who belong to armed forces or
armed groups may be attacked at any time."); Yoram
Dinstein, The
Conduct of Hostilities Under the Law of
International Armed Conflict 94 (2004)
("When a person takes up arms or merely dons a
uniform as a member of the armed forces, he
automatically exposes himself to enemy attack.")
Accordingly, the Department does not believe that
U.S. citizenship would immunize a senior
operational leader of al-Qa'ida or its associated
forces from a use of force abroad authorized by
the AUMF or in national self-defense.
In addition, the United States retains its
authority to use force against al-Qa'ida and
associated forces outside the area of active
hostilities when it targets a senior operational
leader of the enemy forces who is actively engaged
in planning operations to kill Americans. The
United States is currently in a non-international
armed conflict with al-Qa'ida and its associated
forces. See
Hamdan v. Rumsfeld, 548 U.S. 557, 628-31
(2006) (holding that a conflict between a nation
and a transnational non-state actor, occurring
outside the nation's territory, is an armed
conflict "not of an international character"
(quoting Common Article 3 of the Geneva
Conventions) because it is not a "clash between
nations"). Any U.S. operation would be part of
this non-international armed conflict, even if it
were to take place away from the zone of active
hostilities. See John O. Brennan, Assistant to the
President for Homeland Security and
Counterterrorism, Remarks at the Program on Law
and Security, Harvard Law School: Strengthening
Our Security by Adhering to Our Values and Laws
(Sept. 16, 2011) ("The United States does not view
our authority to use military force against
Al-Qa'ida as being restricted solely to 'hot'
battlefields like Afghanistan."). For example, the
AUMF itself does not set forth an express
geographic limitation on the use of force it
authorizes. See
Hamdan, 548 U.S. at 631 (Kennedy, J.,
concurring) (what makes a non-international armed
conflict distinct from an international armed
conflict is "the legal status of the entities
opposing each other"). None of the three branches
of the U.S. Government has identified a strict
geographical limit on the permissible scope of the
AUMP's authorization. See, e.g., Letter for the
Speaker of the House of Representatives and the
President Pro Tempore of the Senate from the
President (June 15, 2010) (reporting that the
armed forces, with the assistance of numerous
international partners, continue to conduct
operations "against al- Qa'ida terrorists," and
that the United States has "deployed
combat-equipped forces to a number of locations in
the U.S. Central ... Command area[] of operation
in support of those [overseas counterterrorist]
operations"); Bensayah
v. Obama, 610 F.3d 718, 720, 724-25, 727
(D.C. Cir. 2010) (concluding that an individual
turned over to the United States in Bosnia could
be detained if the government demonstrates he was
part of al-Qa'ida); al-Adahi v. Obama, 613 F.3d
1102, 1003, 1111 (D.C. Cir. 2010) (noting
authority under AUMF to detain individual
apprehended by Pakistani authorities in Pakistan
and then transferred to U.S. custody).
Claiming that for purposes of international law,
an armed conflict generally exists only when there
is "protracted armed violence between governmental
authorities and organized armed groups," Prosecutor v. Tadic,
Case No. IT-94-1 AR72, Decision on the Defence
Motion for Interlocutory Appeal on Jurisdiction, P
70 (Int'l Crim. Trib. for the Former Yugoslavia,
App. Chamber Oct. 2, 1995), some commenters have
suggested that the conflict between the United
States and al-Qa'ida cannot lawfully extend to
nations outside Afghanistan in which the level of
hostilities is less intense or prolonged than in
Afghanistan itself. See, e.g., Mary Ellen
O'Connell, Combatants
and the Combat Zone, 43 U. Rich. L. Rev.
845, 857-59 (2009). There is little judicial or
other authoritative precedent that speaks directly
to the question of the geographic scope of a non-
international armed conflict in which one of the
parties is a transnational, non-state actor and
where the principal theater of operations is not
within the territory of the nation that is a party
to the conflict. Thus, in considering this
potential issue, the Department looks to
principles and statements from analogous contexts.
The Department has not found any authority for
the proposition that when one of the parties to an
armed conflict plans and executes operations from
a base in a new nation, an operation to engage the
enemy in that location cannot be part of the
original armed conflict, and thus the subject to
the laws of war governing that conflict, unless
the hostilities become sufficiently intense and
protracted in the new location. That does not
appear to be the rule of the historical practice,
for instance, even in a traditional international
conflict, See John R. Stevenson, Legal Adviser,
Department of State, United States Military Action
in Cambodia: Questions of International Law,
Address before the Hammarskjold Forum of the
Association of the Bar of the City of New York
(May 28, 1970), in 3 The Vietnam War and International Law:
The Widening Context 23, 28-30 (Richard
A. Falk, ed. 1972) (arguing that in an
international armed conflict, if a neutral state
has been unable for any reason to prevent
violations of its neutrality by the troops of one
belligerent using its territory as a base of
operations, the other belligerent has historically
been justified in attacking those enemy forces in
that state). Particularly in a non-international
armed conflict, where terrorist organizations may
move their base of operations from one country to
another, the determination of whether a particular
operation would be part of an ongoing armed
conflict would require consideration of the
particular facts and circumstances in each case,
including the fact that transnational non- state
organizations such as al-Qa'ida may have no single
site serving as their base of operations. See also, e.g.,
Geoffrey S. Corn & Eric Albot Jensen, Untying the Gordian
Knot: A Proposal for Determining Applicability
of the Laws of War to the War on Terror,
81 Temp. L. Rev. 787, 799 (2008) ("If ... the
ultimate purpose of the drafters of the Geneva
Conventions was to prevent 'law avoidance' by
developing de facto law triggers -- a purpose
consistent with the humanitarian foundation of the
treaties -- then the myopic focus on the
geographic nature of an armed conflict in the
context of transnational counterterrorist combat
operations serves to frustrate that purpose.") [2]
If an operation of the kind discussed in this
paper were to occur in a location where al-Qa'ida
or an associated force has a significant and
organized presence and from which al-Qa'ida or an
associated force, including its senior operational
leaders, plan attacks against U.S. persons and
interests, the operation would be part of the
non-international armed conflict between the
United States and al-Qa'ida that the Supreme Court
recognized in Hamdan.
Moreover, such an operation would be consistent
with international legal principles of sovereignty
and neutrality if it were conducted, for example,
with the consent of the host nation's government
or after a determination that the host nation is
unable or unwilling to suppress the threat posed
by the individual targeted. In such circumstances,
targeting a U.S. citizen of the kind described in
this paper would be authorized under the AUMF and
the inherent right to national self-defense. Given
this authority, the question becomes whether and
what further restrictions may limit its exercise.
II.
The Department assumes that the rights afforded
by Fifth Amendment's Due Process Clause, as well
as the Fourth Amendment, attach to a U.S. citizen
even while he is abroad. See Reid v. Covert, 354 U.S. 1,
5-6 (1957) (plurality opinion); United States v.
Verdugo-Urquidez, 494 U.S. 259, 269-70
(1990); see
also In re Terrorist Bombings of U.S. Embassies
in East Africa, 552 F.3d 157, 170 n.7 (2d
Cir. 2008). The U.S. citizenship of a leader of
al-Qa'ida or its associated forces, however, does
not give that person constitutional immunity from
attack. This paper next considers whether and in
what circumstances a lethal operation would
violate any possible constitutional protections of
a U.S. citizen.
A.
The Due Process Clause would not prohibit a
lethal operation of the sort contemplated here. In
Hamdi, a
plurality of the Supreme Court used the Mathews v. Eldridge
balancing test to analyze the Fifth Amendment due
process rights of a U.S. citizen who had been
captured on the battlefield in Afghanistan and
detained in the United States, and who wished to
challenge the government's assertion that he was
part of enemy forces. The Court explained 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 great process." Hamdi, 542
U.S. at 529 (plurality opinion) (quoting Mathews v. Eldridge,
424 U.S. 319, 335 (1976)). The due process
balancing analysis applied to determine the Fifth
Amendment rights of a U.S. citizen with respect to
law-of-war detention supplies the framework for
assessing the process due a U.S. citizen who is a
senior operational leader of an enemy force
planning violent attacks against Americans before
he is subjected to lethal targeting.
In the circumstances considered here, the
interests on both sides would be weighty. See Hamdi,
542 U.S. at 529 (plurality opinion) ("It is beyond
question that substantial interests lie on both
sides of the scale in this case."). An
individual's interest in avoiding erroneous
deprivation of his life is "uniquely compelling."
See Ake v.
Oklahoma, 470 U.S. 68, 178 (1985) ("The
private interest in the accuracy of a criminal
proceeding that places an individual's life or
liberty at risk is almost uniquely compelling.").
No private interest is more substantial. At the
same time, the government's interest in waging
war, protecting its citizens, and removing the
threat posed by members of enemy forces is also
compelling. Cf.
Hamdi, 543 U.S. at 531 (plurality
opinion) ("On the other side of the scale are the
weighty and sensitive governmental interests in
ensuring that those who have in fact fought with
the enemy during a war do not return to battle
against the United States."). As the Hamdi
plurality observed, in the "circumstances of war,"
"the risk of erroneous deprivation of a citizen's
liberty in the absence of sufficient process . . .
is very real," id.
at 530 (plurality opinion), and, of course, the
risk of an erroneous deprivation of a citizen's
life is even more significant. But, "the realities
of combat" render certain uses of force "necessary
and appropriate," including force against U.S.
citizens who have joined enemy forces in the armed
conflict against the United States and whose
activities pose an imminent threat of violent
attack against the United States -- and "due
process analysis need not blink at those
realities." Id.
at 531 (plurality opinion). These same realities
must also be considered in assessing "the burdens
the Government would face in providing greater
process" to a member of enemy forces. Id. at 529,
531 (plurality opinion).
In view of these interests and practical
considerations, the United States would be able to
use lethal force against a U.S. citizen, who is
located outside the United States and is an
operational leader continually planning attacks
against U.S. persons and interests, in at least
the following circumstances: (1) where an
informed, high-level official of the U.S.
government has determined that the targeted
individual poses an imminent threat of violent
attack against the United States; (2) where a
capture operation would be infeasible -- and where
those conducting the operation continue to monitor
whether capture becomes feasible; and (3). where
such an operation would be conducted consistent
with applicable law of war principles.
In these circumstances, the "realities" of the
conflict and the weight of the government's
interest in protecting its citizens from an
imminent attack are such that the Constitution
would not require the government to provide
further process to such a U.S. citizen before
using lethal force. Cf Hamdi, 542 U.S. at 535
(plurality opinion) (noting that the Court
"accord[s] the greatest respect and consideration
to the judgments of military authorities in
matters relating to the actual prosecution of war,
and . . . the scope of that discretion necessarily
is wide"); id.
at 534 (plurality opinion) ("The parties agree
that initial captures on the battlefield need not
receive the process we have discussed here; that
process is due only when the determination is made
to continue to hold those who have been seized.")
(emphasis omitted).
Certain aspects of this legal framework require
additional explication. First, the condition that an
operational leader present an "imminent" threat of
violent attack against the United States does not
require the United States to have clear evidence
that a specific attack on U.S. persons and
interests will take place in the immediate future.
Given the nature of, for example, the terrorist
attacks on September 11, in which civilian
airliners were hijacked to strike the World Trade
Center and the Pentagon, this definition of
imminence, which would require the United States
to refrain from action until preparations for an
attack are concluded, would not allow the United
States sufficient time to defend itself. The
defensive options available to the United States
may be reduced or eliminated if al-Qa'ida
operatives disappear and cannot be found when the
time of their attack approaches. Consequently,
with respect to al-Qa'ida leaders who are
continually planning attacks, the United States is
likely to have only a limited window of
opportunity within which to defend Americans in a
manner that has both a high likelihood of success
and sufficiently reduces the probabilities of
civilian causalities. See Michael N. Schmitt, State-Sponsored
Assassination in International and Domestic Law,
l7 Yale J. Int'l L. 609, 648 (l992). Furthermore,
a "terrorist 'war' does not consist of a massive
attack across an international border, nor does it
consist of one isolated incident that occurs and
is then past. It is a drawn out, patient, sporadic
pattern of attacks. It is very difficult to know
when or where the next incident will occur."
Gregory M. Travalio, Terrorism, International Law, and the
Use of Military Force, 18 Wis. Int'l L.J.
145, 173 (2000); see also Testimony of
Attorney-General Lord Goldsmith, 660 Hansard. H.L.
(April 21. 2004) 370 (U.K.), available at
http://www.publications.parliament.
uk/pa/ld200304/ldhansrd/vo0404 21 /text/404 21-
07.htm(what constitutes an imminent threat "Will
develop to meet new circumstances and new threats
. . . . It must be right that states are able to
act in self-defense in circumstances where there
is evidence of further imminent attacks by
terrorist groups, even if there is no specific
evidence of where such an attack will take place
or of the precise nature of the attack.").
Delaying action against individuals continually
planning to kill Americans until some theoretical
end stage of the planning for a particular plot
would create an unacceptably high risk that the
action would fail and that American casualties
would result.
By its nature, therefore, the threat posed by
al-Qa'ida and its associated forces demands a
broader concept of imminence in judging when a
person continually planning terror attacks
presents an imminent threat, making the use of
force appropriate. In this context, imminence must
incorporate considerations of the relevant window
of opportunity, the possibility of reducing
collateral damage to civilians, and the likelihood
of heading off future disastrous attacks on
Americans. Thus, a decision maker determining
whether an al-Qa'ida operational leader presents
an imminent threat of violent attack against the
United States must take into account that certain
members of al- Qa'ida (including any potential
target of lethal force) are continually plotting
attacks against the United States; that al-Qa'ida
would engage in such attacks regularly to the
extent it were able to do so; that the U.S,
government may not be aware of all al-Qa'ida plots
as they are developing and thus cannot be
confident that none is about to occur; and that,
in light of these predicates, the nation may have
a limited window of opportunity within which to
strike in a manner that both has a high likelihood
of success and reduces the probability of American
casualties.
With this understanding, a high-level official
could conclude, for example, that an individual
poses an "imminent threat" of violent attack
against the United States where he is an
operational leader of al-Qa'ida or an associated
force and is personally and continually involved
in planning terrorist attacks against the United
States. Moreover, where the al-Qa'ida member in
question has recently been involved in activities
posing an imminent threat of violent attack
against the United States, and there is no
evidence suggesting that he has renounced or
abandoned such activities, that member's
involvement in al-Qa'ida's continuing terrorist
campaign against the United States would support
the conclusion that the member poses an imminent
threat.
Second, regarding the feasibility of
capture, capture would not be feasible if it could
not be physically effectuated during the relevant
window of opportunity or if the relevant country
were to decline to consent to a capture operation.
Other factors such as undue risk to U.S. personnel
conducting a potential capture operation also
could be relevant. Feasibility would be a highly
fact-specific and potentially time-sensitive
inquiry.
Third, it is a premise here that any
such lethal operation by the United States would
comply with the four fundamental law-of-war
principles governing the use of force: necessity,
distinction, proportionality, and humanity (the
avoidance of unnecessary suffering). See, e.g.,
United States Air Force, Targeting, Air Force
Doctrine Document 2-1.9, at 88 (June 3, 2006);
Dinstein, Conduct
of Hostilities at 16-20, l 15-16, l
19-23; see also
2010 Koh ASIL Speech. For example, it
would not be consistent with those principles to
continue an operation if anticipated civilian
casualties would be excessive in relation to the
anticipated military advantage. Chairman of the
Joint Chiefs of Staff Instruction 5810.01D,
Implementation of the DoD Law of War Program
¶ 4.a, at 1 (Apr. 30, 2010). An operation
consistent with the laws of war could not violate
the prohibitions against treachery and perfidy,
which address a breach of confidence by the
assailant. See,
e.g., Hague Convention IB, Annex, art.
23(b), Oct. 18, 1907, 36 Stat. 2277, 2301-02
("[I]t is especially forbidden .... [t]o kill or
wound treacherously individuals belonging to the
hostile nation or army . . . ."). These
prohibitions do not, however, categorically forbid
the use of stealth or surprise, nor forbid attacks
on identified individual soldiers or officers. See U.S. Army
Field Manual 2?-10, The Law of Land Warfare, ¶
31 (1956) (article 23(b) of the Annex to the Hague
Convention IV does not "preclude attacks on
individual soldiers or officers of the enemy
whether in the zone of hostilities, occupied
territory, or elsewhere"). And the Department is
not aware of any other law-of-war grounds
precluding use of such tactics. See Dinstein,
Conduct of Hostilities at 94-95, 199; Abraham D.
Sofaer, Terrorism,
the Law, and the National Defense, 126
Mil. L. Rev. 89, 120-21 (1989). Relatedly, "there
is no prohibition under the laws of war on the use
of technologically advanced weapons systems in
armed conflict -- such as pilotless aircraft or
so-called smart bombs -- so long as they are
employed in conformity with applicable laws of
war." 2010 Koh
ASIL Speech. Further, under this
framework, the United States would also be
required to accept a surrender if it were feasible
to do so.
In sum, an operation in the circumstances and
under the constraints described above would not
result in a violation of any due process rights.
B.
Similarly, assuming that a lethal operation
targeting a U.S. citizen abroad who is planning
attacks against the United States would result in
a "seizure" under the Fourth Amendment, such an
operation would not violate that Amendment in the
circumstances posited here. The Supreme Court has
made clear that the constitutionality of a seizure
is determined by "balanc[ing] the nature and
quality of the intrusion on the individual's
Fourth Amendment interests against the importance
of the governmental interest alleged to justify
the intrusion." Tennessee
v. Garner, 471 US. 1, 8 (1985) (internal
quotation marks omitted); accord Scott v.
Harris, 550 U.S. 372, 383 (2007). Even in
domestic law enforcement operations, the Court has
noted that "[w]here 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." Garner, 471
U.S. at 11. Thus, "if the suspect threatens the
officer with a weapon or there is probable cause
to believe that he has committed a crime involving
the infliction or threatened infliction of serious
physical harm, deadly force may be used if
necessary to prevent escape, and if, where
feasible, some warning has been given." Id. at 11-12.
The Fourth Amendment "reasonableness" test is
situation-dependent. Cf. Scott, 550 U.S. at 382 ("Garner did
not establish a magical on/off switch that
triggers rigid preconditions whenever an officer's
actions constitute 'deadly force.'"). What would
constitute a reasonable use of lethal force for
purposes of domestic law enforcement operations
differs substantially from what would be
reasonable in the situation and circumstances
discussed in this white paper. But at least in
circumstances where the targeted person is an
operational leader of an enemy force and an
informed, high-level government official has
determined that he poses an imminent threat of
violent attack against the United States, and
those conducting the operation would carry out the
operation only if capture were infeasible, the use
of lethal force would not violate the Fourth
Amendment. Under such circumstances, the intrusion
on any Fourth Amendment interests would be
outweighed by the "importance of the governmental
interests [that] justify the intrusion," Garner,
471 U.S. at 8 -- the interests in protecting the
lives of Americans.
C.
Finally, the Department notes that under the
circumstances described in this paper, there
exists no appropriate judicial forum to evaluate
these constitutional considerations. It is
well-established that "[m]atters intimately
related to foreign policy and national security
are rarely proper subjects for judicial
intervention," Haig
v. Agee, 453 U.S. 280, 292 (1931),
because such matters "frequently turn on standards
that defy judicial application," or "involve the
exercise of a discretion demonstrably committed to
the executive or legislature," Baker v. Carr,
369 U.S. 186, 211 (1962). Were a court to
intervene here, it might be required
inappropriately to issue an ex ante command to the
President and officials responsible for operations
with respect to their specific tactical judgment
to mount a potential lethal operation against a
senior operational leader of al- Qa'ida or its
associated forces. And judicial enforcement of
such orders would require the Court to supervise
inherently predictive judgments by the President
and his national security advisors as to when and
how to use force against a member of an enemy
force against which Congress has authorized the
use of force.
III.
Section 1119(b) of title 18 provides that a
"person who, being a national of the United
States, kills or attempts to kill a national of
the United States while such national is outside
the United States but within the jurisdiction of
another country shall be punished as provided
under sections 1111, 1112, and 1113." 18 U.S.C.
§ 1119(b) (2006).[3]
Because the person who would be the target of the
kind of operation discussed here would be a U.S.
citizen, it might be suggested that section
1119(b) would prohibit such an operation. Section
1119, however, incorporates the federal murder and
manslaughter statutes, and thus its prohibition
extends only to "unlawful killing[s]," 18 U.S.C.
§§ 1111(a), 1112(a) (2006). Section 1119
is best construed to incorporate the "public
authority" justification, which renders lethal
action carried out by a government official lawful
in some circumstances. As this paper explains
below, a lethal operation of the kind discussed
here would fall within the public authority
exception under the circumstances and conditions
posited because it would be conducted in a manner
consistent with applicable law of war principles
governing the non-international conflict between
the United States and al-Qa'ida and its associated
forces. It therefore would not result in an
unlawful killing.[4]
A.
Although section 1119(b) refers only to the
"punish[ments]" provided under sections 1111,
1112, and 1113, courts have held that section
1119(b) incorporates the substantive elements of
those cross-referenced provisions of title 18. See, e.g., United
States v. Wharton, 320 F.3d 526, 533 (5th
Cir. 2003); United
States v. White, 51 F. Supp. 2d 1008,
1013-14 (E.D. Cal. 1997). Section 1111 of title 18
sets forth criminal penalties for "murder", and
provides that "[m]urder is the unlawful killing of
a human being with malice aforethought." 18 U.S.C.
§ 1111(a). Section 1112 similarly provides
criminal sanctions for "[m]anslaughter," and
states that "[m]anslaughter is the unlawful
killing of a human being without malice." Id. §
1112(a). Section 1113 provides criminal penalties
for "attempts to commit murder or manslaughter." Id. §
1113. It is therefore clear that section 11119(b)
bars only "unlawful killing."
Guidance as to the meaning of the phrase
"unlawful killing" in sections 1111 and 1112 --
and thus for purposes of section 1119(b) -- can be
found in the historical understandings of murder
and manslaughter. That history shows that states
have long recognized justifications and excuses to
statutes criminalizing "unlawful" killings.[5] One state court,
for example, in construing that state's murder
statute, explained that "the word 'unlawful' is a
term of art" that "connotes a homicide with the
absence of factors of excuse or justification." People v. Frye,
10 Cal. Rptr. 2d 217, 221 (Cal. Ct. App. 1992).
That court further explained that the factors of
excuse or justification in question include those
that have traditionally been recognized. Id. at
221 n.2. Other authorities support the same
conclusion. See,
e.g., Mullaney v. Wilbur, 421 U.S. 684,
685 (1975) (requirement of "unlawful" killing in
Maine murder statute meant that killing was
"neither justifiable nor excusable"); cf also
Rollin M. Perkins & Ronald N. Boyce, Criminal Law
56 (3d ed. 1982) ("Innocent homicide is of two
kinds, (l) justifiable and (2) excusable.").
Accordingly, section 1119 does not proscribe
killings covered by a justification traditionally
recognized under the common law or state and
federal murder statutes. "Congress did not intend
[section 1119] to criminalize justifiable or
excusable killings." White, 51 F. Supp. 2d at 1013.
B.
The public authority justification is
well-accepted, and it may be available even in
cases where the particular criminal statute at
issue does not expressly refer to a public
authority justification. Prosecutions where such a
"public authority" justification is invoked are
understandably rare, see American Law Institute Model
Penal Code and Commentaries § 3.03 Comment 1,
at 23-24 (1985);
cf Visa Fraud Investigation, 8 Op. O.L.C.
284, 285 n.2, 286 (1984), and thus there is little
case law in which courts have analyzed the scope
of the justification with respect to the conduct
of government officials. Nonetheless, discussions
in the leading treatises and in the Model Panel
Code demonstrate its legitimacy. See 2 Wayne
R. LaFave, Substantive
Criminal Law § 10.2(b), at 135 (2d
ed. 2003); Perkins & Boyce, Criminal Law at
1093 ("Deeds which otherwise would be criminal,
such as taking or destroying property, taking hold
of a person by force and against his will, placing
him in confinement, or even taking his life, are
not crimes if done with proper public
authority."); see also Model Penal Code §
3.03(1)(a), (d), (e) at 22023 (proposing
codification of justification where conduct is
"required or authorized by," inter alia,
"the law defining the duties or functions of a
public officer," "the law governing the armed
services or the lawful conduct of war," or "any
other provision of law imposing a public duty");
National Commission on Reform of Federal Criminal
Laws, A
Proposed New Federal Criminal Code §
602(1) (1971) ("Conduct engaged in by a public
servant in the course of his official duties is
justified when it is required or authorized by
law."). And the Department's Office of Legal
Counsel ("OLC") has invoked analogous rationales
when it has analyzed whether Congress intended a
particular criminal statute to prohibit specific
conduct that otherwise falls within a government
agency's authorities. See, e.g., Visa Fraud
Investigation, 8 Op. O.L.C. at 287-88
(concluding that a civil statute prohibiting
issuance of visa to an alien known to be
ineligible did not prohibit State Department from
issuing such a visa where "necessary" to
facilitate an important Immigration and
Naturalization Service undercover operation
carried out in a "reasonable" fashion).
The public authority justification would not
excuse all conduct of public officials from all
criminal prohibitions. Or the legislature may
design some criminal prohibitions to place bounds
on the kinds of governmental conduct that can be
authorized by the Executive. Or the legislature
may enact a criminal prohibition in order to limit
the scope of the conduct that the legislature has
otherwise authorized the Executive to undertake
pursuant to another statute. See, e.g., Nardone
v. United States, 302 U.S. 379, 384
(1937) (federal statute proscribed government
wiretapping). But the generally recognized public
authority justification reflects that it would not
make sense to attribute to Congress the intent to
criminalize all covered activities undertaken by
public officials in the legitimate exercise of
their otherwise lawful authorities, even if
Congress clearly intends to make those same
actions a crime when committed by persons not
acting pursuant to public authority. In some
instances, therefore, the best interpretation of a
criminal prohibition is that Congress intended to
distinguish persons who are acting pursuant to
public authority from those who are not, even if
the statute does not make that distinction
express. Cf. id.
at 384 (federal criminal statutes should be
construed to exclude authorized conduct of public
officers where such a reading "would work obvious
absurdity as, for example, the application of a
speed law to a policeman pursuing a criminal or
the driver of a fire engine responding to an
alarm").[6]
The touchstone for the analysis whether section
1119 incorporates not only justifications
generally, but also the public authority
justification in particular, is the legislative
intent underlying this statute. Here, the statute
should be read to exclude from its prohibitory
scope killings that are encompassed by traditional
justification, which include the public authority
justification. The statutory incorporation of two
other criminal statutes expressly referencing
"unlawful" killings is one indication. See supra at
10-11. Moreover, there are no indications that
Congress had a contrary intention. Nothing in the
text or legislative history of sections 1111-1113
of title 18 suggests that Congress intended to
exclude the established public authority
justification from those justifications that
Congress otherwise must be understood to have
imported through the use of the modifier
"unlawful" in those statutes. Nor is there
anything in the text or legislative history of
section 1119 itself to suggest that Congress
intended to abrogate or otherwise affect the
availability of this traditional justification for
killings. On the contrary, the relevant
legislative materials indicate that, in enacting
section 1119, Congress was merely closing a gap in
a field dealing with entirely different kinds of
conduct from that at issue here.[7]
The Department thus concludes that section 1119
incorporates the public authority justification.[8] This paper turns
next to the question whether a lethal operation
could be encompassed by that justification and, in
particular, whether that justification would apply
when the target is a U.S. citizen. The analysis
here leads to the conclusion that it would.
C.
A lethal operation against an enemy leader
undertaken in national self-defense or during an
armed conflict that is authorized by an informed,
high-level official and carried out in a manner
that accords with applicable law of war principles
would fall within a well established variant of
the public authority justification and therefore
would not be murder. See, e.g., 2 Paul H. Robinson,
Criminal Law Defenses § 148(a), at 208 (1984)
(conduct that would violate a criminal statute is
justified and thus not unlawful "[w]here the
exercise of military authority relies upon the law
governing the armed forces or upon the conduct of
war"); 2 LaFave, Substantive Criminal Law S
10.2(c) at 136 ("another aspect of the public duty
defense is where the conduct was required or
authorized by 'the law governing the armed
services or the lawful conduct of war); Perkins
& Boyce, Criminal
Law at 1093 (noting that a "typical
instance[] in which even the extreme act of taking
human life is done by public authority" involves
"the killing of an enemy as an act of war and
within the rules of war").[9]
The United States is currently in the midst of a
congressionally authorized armed conflict with
al-Qa'ida and associated forces, and may act in
national self-defense to protect U.S. persons and
interests who are under continual threat of
violent attack by certain al-Q'aida operatives
planning operations against them. The public
authority justification would apply to a lethal
operation of the kind discussed in this paper if
it were conducted in accord with applicable law of
war principles. As one legal commentator has
explained, "if a soldier intentionally kills an
enemy combatant in time of war and within the
rules of warfare, he is not guilty of murder,"
whereas, for example, if that soldier
intentionally kills a prisoner of war -- a
violation of the laws of war -- "then he commits
murder." 2 LaFave, Substantive Criminal Laws §
10.2(c), at 136; see also State v. Gut, 13 Minn.
341, 357 (1868) ("That it is legal to kill an
alien enemy in the heat and exercise of war, is
undeniable; but to kill such an enemy after he has
laid down his arms, and especially when he is
confined in prison, is murder."); Perkins &
Boyce, Criminal
Law at 1093 ("Even in time of War an
alien enemy may not be killed needlessly after he
has been disarmed and securely imprisoned.").
Moreover, without invoking the public authority
justification by its terms, this Department's OLC
has relied on the same notion in an opinion
addressing the intended scope of a federal
criminal statute that concerned the use of
potentially lethal force. See United States
Assistance to Countries that Shoot Down Civil
Aircraft Involved in Drug Trafficking, 18
Op. O.L.C. 148, 164 (1994) (concluding that the
Aircraft Sabotage Act of 1984, 18 U.S.C. §
32(1))(2) (2006), which prohibits the willful
destruction of a civil aircraft: and otherwise
applies to U.S. government conduct, should not be
construed to have "the surprising and almost
certainly unintended effect of criminalizing
actions by military personnel that are lawful
under international law and the laws of almed
conflict").
The fact that an operation may target a U.S.
citizen does not alter this conclusion. As
explained above, see supra at 3, the Supreme Court
has held that the military may constitutionally
use force against a U.S. citizen who is part of
enemy forces. See Hamdi, 542 U.S. at 518
(plurality opinion); id. at 587, 597 (Thomas, J.,
dissenting); Ex
parte Quirin, 317 U.S. at 37-38
("Citizens who associate themselves with the
military arm of the enemy government, and with its
aid, guidance and direction enter [the United
States] bent on hostile acts," may be treated as
"enemy belligerents" under the law of war).
Similarly, under the Constitution and the inherent
right to national self-defense recognized in
international law, the President may authorize the
use of force against a U.S. citizen who is a
member of al-Qa'ida or its associated forces and
who poses an imminent threat of violent attack
against the United States.
In light of these precedents, the Department
believes that the use of lethal force addressed in
this white paper would constitute a lawful killing
under the public authority doctrine if conducted
in a manner consistent with the fundamental law of
war principles governing the use of force in a
non-international armed conflict. Such an
operation would not violate the assassination ban
in Executive Order No. 12333. Section 2.11 of
Executive Order No. 12333 provides that "[n]o
person employed by or acting on behalf of the
United States Government shall engage in, or
conspire to engage in, assassination." 46 Fed.
Reg. 59,941, 59, 952 (Dec. 4, 1981). A lawful
killing in self-defense is not an assassination.
In the Department's view, a lethal operation
conducted against a U.S. citizen whose conduct
poses an imminent threat of violent attack against
the United States would be a legitimate act of
national self-defense that would not violate the
assassination ban. Similarly, the use of lethal
force, consistent with the laws of war, against an
individual who is a legitimate military target
would be lawful and would not violate the
assassination ban.
IV.
The War Crimes
Act, 18 U.S.C. § 2441 (2006) makes
it a federal crime for a member of the Armed
Forces or a national of the United States to
"commit[] a war crime." Id. § 2441(a). The only
potentially applicable provision of section 2441
to operations of the type discussed herein makes
it a war crime to commit a "grave breach" of
Common Article 3 of the Geneva Conventions when
that breach is committed "in the context of and in
association with an armed conflict not of an
international character."[10]
Id.
2441(c)(3). As defined by the statute, a "grave
breach" of Common Article 3 includes "[m]urder,"
described in pertinent part as "[t]he act of a
person who intentionally kills, or conspires or
attempts to kill . . . one or more persons taking
no active part in the hostilities, including those
placed out of combat by sickness, wounds,
detention, or any other cause." Is. S
2441(s)(1)(D).
Whatever might be the outer bounds of this
category of covered persons, Common Article 3 does
not alter the fundamental law of war principle
concerning a belligerent party's right in an armed
conflict to target individuals who are part of an
enemy's armed forces or eliminate a nation's
authority to take legitimate action in national
self-defense. The language of Common Article 3
"makes clear that members of such armed forces [of
both the state and non-states parties to the
conflict] ... are considered as 'taking no active
part in the hostilities' only once have disengaged
from their fighting function ('have laid down
their arms') or are placed hors de combat;
mere suspension of combat is insufficient."
International Committee of the Red Cross, Interpretive
Guidance on the Notion of Direct Participation
in Hostilities Under International Humanitarian
Law 28 (2009). An operation against a
senior operational leader of al-Qa'ida or its
associated forces who poses an imminent threat of
violent attack against the United States would
target a person who is taking "an active part in
hostilities" and therefore would not constitute a
"grave breach" of Common Article 3.
V.
In conclusion, it would be lawful for the United
States to conduct a lethal operation outside the
United States against a U.S. citizen who is a
senior, operational leader of al-Qa'ida or an
associated force of al-Qa'ida without violating
the Constitution or the federal statutes discussed
in this white paper under the following
conditions: (l) an informed, high-level official
of the U.S. government has determined that the
targeted individual poses an imminent threat of
violent attack against the United States; (2)
capture is infeasible, and the United States
continues to monitor whether capture becomes
feasible; and (3) the operation is conducted in a
manner consistent with the four fundamental
principles of the laws of war governing the use of
force. As stated earlier, this paper does not
attempt to determine the minimum requirements
necessary to render such an operation lawful, nor
does it assess what might be required to render a
lethal operation against a U.S. citizen lawful in
other circumstances. It concludes only that the
stated conditions would be sufficient to make
lawful a lethal operation in a foreign country
directed against a U.S. citizen with the
characteristics described above.
Notes
1. An associated force
of al-Qa'ida includes a group that would qualify
as a co-belligerent under the laws of war. See Ham!ily v. Obama,
616 F. Supp. 2d 63, 74-75 (D.D.C. 2009)
(authority to detain extends to '"associated
forces,"' which "mean 'co-belligerents' as that
term is understood under the laws of war")
2. See Prosecutor v.
Tadic, Case No. IT-94-1AR72, Submission
of the Government of the United States of
America Concerning Certain Arguments Made by
Counsel for the Accused, at 27-28 (Int'l Crim.
Trib. For the Former Yugoslavia, App. Chamber
July 17, 1995) (in determining which body of law
applies in a particular conflict, "the conflict
must be considered as a whole, and "it is
artificial and improper to attempt to divide it
into isolated segments, either geographically or
chronologically").
3. See also 18 U.S.C. §
1119(a) (2006) (providing that "'national of the
United States' has the meaning stated in section
101(a)(22) of the Immigration and Nationality
Act," 8 U.S.C. § 1101(a)(22) (2006)).
4. In light of the conclusion
that section 1119 and the statutes it
cross-references incorporate this justification,
and that the justification would cover an
operation of the sort discussed here, this
discussion does not address whether an operation
of this sort could be lawful on any other
grounds.
5. The same is true with
respect to other statutes, including federal
laws, that modify a prohibited act other than
murder or manslaughter with the term
"unlawfully."
See, e.g., Territory v. Gonzales, 89 P.
250, 252 (N.M. 1907) (construing the term
"unlawful" in statute criminalizing assault with
a deadly weapon as "clearly equivalent" to
"without excuse or justification"). For example,
18 U.S.C. § 2339C(a)(1) (2006) makes it
unlawful, inter
alia, to "unlawfully and willfully
provide[] or collect[] funds" with the intention
that they may be used (or knowledge they are to
be used) to carry out an act that is an offense
within certain specified treaties, or to engage
in certain other terrorist acts. The legislative
history of section 2339C makes clear that "[t]he
term 'unlawfully' is intended to embody common
law defenses." H.R. Rep. No. 107-307, at 12
(2001).
6. Each potentially applicable
statute must be carefully and separately
examined to discern Congress's intent in this
respect. See
generally, e.g., Nardone, 302 U.S. 379;
United States
Assistance to Countries that Shoot Down Civil
Aircraft Involved in Drug Trafficking,
18 Op. O.L.C. 148 (1994); Application of
Neutrality Act to Official Government
Activities, 8 Op. O.L.C. 58 (1984).
7. Section 1119 was
designed to close a jurisdictional loophole --
exposed by a murder that had been committed
abroad by a private individual -- to ensure the
possibility of prosecuting U.S. nationals who
murdered other U.S. nationals in certain foreign
countries that lacked the ability to lawfully
secure the perpetrator's appearance at trial. See 137
Cong. Rec. 8675-76 (1991) (statement of Sen.
Thurmond). This loophole is unrelated to the
sort of authorized operation at issue here.
Indeed, prior to the enactment of section 1119,
the only federal statute expressly making it a
crime to kill U.S. nationals abroad (outside the
United States' special and maritime
jurisdiction) reflected what appears to have
been a particular concern with the protection of
Americans from terrorist attacks. See 18
U.S.C. § 2332(a), (d) (2006) (criminalizing
unlawful killings of U.S. nationals abroad where
the Attorney General or his subordinate
certifies that the "offense was intended to
coerce, intimidate, or retaliate against a
government or a civilian population").
8. 18 U.S.C. § 956(a)(l)
(2006) makes it a crime to conspire within the
jurisdiction of the United States "to commit at
any place outside the United States an act that
would constitute the offense of murder,
kidnapping, or maiming if committed in the
special maritime and territorial jurisdiction of
the United States" if any conspirator acts
within the United States to effect any object of
the conspiracy. Like section 1119(b), section
956(a) incorporates the public authority
justification. In addition, the legislative
history of section 956(a) indicates that the
provision was "not intended to apply to duly
authorized actions undertaken on behalf of the
United States Government." 141 Cong. Rec.
4491,4507 (1995) (section-by-section analysis of
bill submitted by Sen. Biden, who introduced the
provision at the behest of the President); see also id.
at 11,960 (section-by-section analysis of bill
submitted by Sen. Daschle, who introduced the
identical provision in a different version of
the anti-terrorism legislation a few months
later). Thus, for the reasons that section
1119(b) does not prohibit the United States from
conducting a lethal operation against a U.S.
citizen, section 956(a) also does not prohibit
such an operation.
9. See also Frye, 10 Cal. Rptr.
2d at 221 n.2 (identifying "homicide done under
a valid public authority, such as execution of a
death sentence or killing an enemy in a time of
war," as examples of justifiable killing that
would not be "unlawful" under the California
statute describing murder as an "unlawful"
killing); Model Penal Code § 3 .03(2)(b ),
at 22 (proposing that criminal statutes
expressly recognize a public authority
justification for a killing that "occurs in the
lawful conduct of war" notwithstanding the Code
recommendation that the use of deadly force
generally should be justified only if expressly
prescribed by law).
10. The statute also defines
"war crime" to include any conduct that is
defined as a grave breach in any of the Geneva
Conventions (or any Geneva protocol to which the
United States is a party); that is prohibited by
four specified articles of the Fourth Hague
Convention of 1907; or that is a willful killing
or infliction of serious injury in violation of
the 1996 Protocol on Prohibitions or
Restrictions on the Use of Mines, Booby-Traps
and Other Devices. 18 U.S.C. § 2441(c).
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