08.04.10 |

The Obama administration has been savagely criticized for authorizing the CIA to use lethal force against Anwar al-Awlaki, a US citizen who is allegedly a member of al-Qaeda in Yemen. Glenn Greewald, for example, has described the decision — justifiably — as “unbelievably Orwellian and tyrannical.” To date, however, critics have ignored what I think is perhaps the most important point: An American who kills an American outside of the United States is guilty of murder. Not political murder. Not figurative murder. Legal murder.

18 USC 1119:

(a) Definition.— In this section, “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)). (b) Offense.— 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

The foreign-murder statute has to be the starting point of any analysis of the Obama adminstration’s decision to authorize the CIA to kill al-Awlaki. If the CIA does kill him — and even if it doesn’t; see below — any CIA operative involved in the killing who is American is presumptively a murderer. The only questions would be (1) whether for some reason 18 USC 1119 would not apply, and (2) whether the CIA operative would have a plausible defense if he was charged with murder in federal court.

1. Does 18 USC 1119 Apply?

There are three possible arguments as to why the foreign-murder statute would not apply. The first is that, if al-Awlaki were killed on the battlefield — i.e., during an armed conflict — US criminal law, including 18 USC 1119, would be displaced by international humanitarian law (IHL). That might be the case, for example, if an American CIA operative killed al-Awlaki in Afghanistan, which qualifies as an international armed conflict. Even in such a situation, however, IHL would protect a CIA operative only if he qualified as a lawful combatant. If he qualified as a lawful combatant, he would possess a combatant’s privilege to kill. But if he did not qualify as a lawful combatant, he would not be privileged to kill and killing al-Awlaki could be prosecuted in federal court under US criminal law — under 18 USC 1119 in particular.

Whether an American CIA operative would qualify as a lawful combatant in Afghanistan is a complex question. I take it as a given that an operative who directly killed al-Awlaki, such as a CIA sniper, would not qualify as a lawful combatant. I doubt many CIA field operatives carry their arms openly and distinguish themselves from the civilian population. The more difficult situation would be one in which a CIA operative killed al-Awlaki remotely, using a drone. Personally, I don’t believe the issue of whether someone qualifies as a lawful combatant depends upon the weapon he uses in combat. If the person who uses the weapon does not qualify as a lawful combatant, it should make no difference how high-tech his weapon is. But I could be convinced otherwise.

This argument, of course, depends upon the assumption that al-Awlaki would be killed in the context of armed conflict. If he was killed outside of an armed conflict — in Yemen, for example — IHL would not apply and thus would not displace US criminal law. Which leads us to the second possible explanation of why 18 USC 1119 does not apply: because Obama has authorized the CIA to kill al-Awlaki. That explanation seems implicit in much of the media’s coverage of the Obama administration’s decision; I have yet to see any reporter ask why Obama believes he has the legal authority to order Americans killed, given that 18 USC 1119 specifically criminalizes such killings. The argument, however, is deeply problematic — and eerily reminiscent of debates over the Bush administration’s authorization of torture. The Bush administration argued that Bush had the authority as Commander-in-Chief to ignore the federal torture statute, 18 USC 2340; the Obama administration seems to now be arguing, albeit implicitly, that Obama has the authority as Commander-in-Chief to ignore the foreign-murder statute. As Glenn constantly and rightly points out, progressives can’t have it both ways: if Bush could ignore the torture statute, Obama can ignore the foreign-murder statute; if Bush could not, Obama cannot.

There is, finally, a third possible argument, one that was recently made by the Center for American Progress: namely, that the Authorization to Use Military Force (AUMF) permits the CIA to kill al-Awlaki wherever he is found. But that argument is no more convincing than the second argument: although Congress could repeal or amend 18 USC 1119, it cannot simply authorize the President to ignore the statute or authorize the CIA to violate it. Again the torture analogy is apposite. If the AUMF permits the President and the CIA to violate the foreign-murder statute, why did it not authorize the President and the CIA to violate the torture statute? I don’t recall any progressive endorsing the latter argument, so why is a progressive organization like the Center for American Progress endorsing the same argument now?

2. Would a CIA Operative Have a Defense?

The bottom line is that there is only one situation in which an American CIA operative who used lethal force against al-Awlaki would not violate 18 USC 1119 — on the battlefield while qualifying as a lawful combatant. (And note that Obama’s authorization means nothing in this situation; lawful battefield killings cannot be prosecuted under US criminal law regardless of whether they are “authorized.” Combatant’s privilege is an inherent and essential part of IHL.) In every other situation, the CIA operative would be guilty of murder under the foreign-murder statute. The only question would be whether he would have a defense to that crime.

There are, I think, three possibilities: self-defense, necessity, and mistake of law. In terms of the first, we need to be careful not to elide the difference between “self-defense” as a justification for the use of force and “self-defense” as a criminal defense. The former might permit the US to violate the sovereignty of the state in which al-Awlaki was killed by the CIA, which would otherwise be an act of aggression in violation of the UN Charter. But it would not provide a CIA operative with a defense to murder in a criminal prosecution, just as “self-defense” does not provide a CIA interrogator — contra Yoo’s notorious 14 March 2003 torture memo — with a defense to torture.

To be clear, that does not mean a CIA operative could not argue self-defense in a murder prosecution. The defense would apply — but it would be governed by the normal requirements, most relevantly that the operative must have reasonably believed that lethal force was necessary to prevent the imminent use of deadly force. The CIA operative would thus likely be entitled to the defense of self-defense only if he killed al-Awlaki to prevent an imminent attack by al-Qaeda; the defense would not justify the operative killing al-Awlaki at any other time.

For similar reasons, it is unlikely that the CIA operative who killed al-Awlaki would be entitled to argue that the killing was necessary. To begin with, the Supreme Court has said that it is “an open question whether federal courts ever have authority to recognize a necessity defense not provided by statute.” US v. Oakland Cannabis Buyers’ Coop, 532 U.S. 483, 490 (2001). Moreover, even if they do, the necessity defense — like self-defense — requires a “clear and imminent danger,” which means that the CIA operative could only argue necessity if an attack by al-Qaeda was imminent.

Finally, it is possible that the CIA operative could argue mistake of law. Federal courts recognize a mistake of law defense when a government official “misleads a party as to the state of the law and that party proceeds to act on the misrepresentation,” as long as the party’s reliance on the misrepresentation is reasonable. United States v. Nichols, 21 F.3d 1016, 1018 (10th Cir. 1994). The reasonableness requirement would be critical if a CIA operative argued in a murder prosection that he had relied on Obama’s misrepresentation that it was lawful for him use lethal force against al-Awlaki. A jury may well buy the argument that his reliance was reasonable, but I do not think they should. Given the plain language of 18 USC 1119 and the fact that none of the recent (post-1998) terrorism-based relaxations of Executive Order 12333 contemplated the assassination of US citizens, I do not think it is reasonable to believe that the President of the United States can order the execution of an American citizen abroad simply because he has unilaterally decided that the citizen is a terrorist.

Note also that those who authorized the CIA to kill al-Awlaki would be even less likely to have a legitimate mistake of law defense. It is not simply criminal for an American to murder an American abroad. It is equally criminal to solicit an American to murder an American abroad, to aid-and-abet an American to murder an American abroad, or to conspire with an American to murder an American abroad. Obama and other high-ranking members of the administration involved in the decision to authorize al-Awlaki’s murder are thus potentially guilty of murder, as well. Could Obama argue reasonable reliance on the OLC, which I presume has told him that he has legal right to authorize the CIA to kill al-Awlaki? Perhaps, but I think the argument is much weaker for him than for the CIA operative who acts on Obama’s authorization. And the OLC lawyers obviously could not rely on their own legal advice.

Finally, although I think it’s clear that a CIA operative who uses lethal force against al-Awlaki is guilty of legal murder, it is important to acknowledge that there is — at least now — an insuperable procedural hurdle to prosecuting that operative under the foreign-murder statute. Here is 18 USC 1119(c)(1):

No prosecution may be instituted against any person under this section except upon the written approval of the Attorney General, the Deputy Attorney General, or an Assistant Attorney General, which function of approving prosecutions may not be delegated. No prosecution shall be approved if prosecution has been previously undertaken by a foreign country for the same conduct.

The Obama administration would never authorize the prosecution of a CIA operative who murdered al-Awlaki, much less one of its own lawyers or officials. But who knows what the future will hold? There is no statute of limitations for murder, so perhaps one day a genuine progressive will be elected President, someone who takes seriously the need to hold government officials accountable for their crimes — even those committed in the name of “fighting terrorism.” In the interim, we need to constantly remind people that the criminal law is not optional, not something that can be cast aside every time the government decides it is too limiting. And the best way to do that is to call the (potential) killing of al-Awlaki what it is — murder.