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09/30/2011

What Should Originalists Think about al-Awlaki?
Michael Ramsey

Prompted by the killing of Anwar al-Awlaki in a U.S. drone strike in Yemen, NRO has re-posted last year’s debate between Kevin Williamson and Andrew McCarthy on the legality of targeting al-Awlaki, a U.S. citizen.  There have been a number of good analyses posted today as well – for opposing sides, here’s Jack Goldsmith in the New York Times and Glenn Greenwald at Salon.  The Williamson/McCarthy exchange is notable, though, in that both arguments rest to an extent on the Constitution’s original meaning.

They are both strong arguments, deserving to be read in full.  But I think both are a little bit incomplete.   For me, the originalist analysis turns on two exceptionally hard questions: first, whether “war” could be conducted against non-sovereign actors, and second, whether the due process clause applied abroad.  Here’s the way I would approach it (with the caution that these are tentative thoughts without firm conclusions).

As Williamson's essay recognizes, the key question is whether the killing took place in a wartime situation.  The President has Article II power to fight a constitutional war, no doubt including power to kill the enemy, an essential part of warfare in the eighteenth century.  That power would appear to extend to U.S. citizens who join the enemy, as nothing in the Constitution seems to immunize them.  While Williamson and others invoke the due process clause, there’s no historical reason to think that the clause offers protection to enemies in wartime.  As a matter of eighteenth century practice, someone manifestly a wartime enemy could be killed, period.  (The ordinary conduct of war is the central foundation of Jack Goldsmith’s NYT defense of the killing, noted above, although he doesn’t pitch it in originalist terms.)  To avoid this conclusion, Williamson argues that the “war on terrorism” is metaphorical only, not a real war triggering real war powers; it’s really a law enforcement operation, and in a law enforcement operation the Constitution (absent exigent circumstances) does not permit targets to be killed rather than captured and tried.

How should this issue be approached from an originalist perspective?  To be sure, Congress in enacting the post-9/11 Authorization for Use of Military Force (AUMF) appeared to treat the issue as a warlike situation, and the executive branch has consistently called it a war.  But the executive can’t make the "war on terror" a war just by calling it a war, any more than the executive can make the Libya intervention not a war by calling it not a war.  It seems that the correct originalist question is whether “war” (and the powers that went with it) in the eighteenth century encompassed military actions against non-state actors like al-Qaeda and al-Awlaki’s affiliate al-Qaeda in the Arabian Peninsula (AQAP)  -- especially actions against non-state actors that don’t even claim sovereign status, in contrast to the Taliban in Afghanistan. 

As an original matter, the question of whether war could exist against non-sovereign entities is not clear cut.  Here’s what I wrote on that subject a while back (Univ. of Chicago Law Review, Vol. 69, p. 1612 n.254 (2002)):

One question that seems difficult to answer on the basis of eighteenth-century sources is whether “war” meant only contentions between sovereigns, or whether sovereign force on one side was sufficient.  [Samuel] Johnson’s dictionary definition seems to require sovereign force only on one side[:] … “War may be defined [as] the exercise of violence under sovereign command.”  Blackstone spoke of “war” against pirates, who were generally not representatives of sovereign entities. … But other authorities thought that the term required two contending sovereigns.  [Jean Jacques] Burlamaqui [wrote] that “[c]ommon use has restrained the word war to that, carried on between sovereign powers.”  [Christian] Wolff … stat[ed] that “public war is war “waged between nations, or by those leaders who have the supreme sovereignty.” Richard Lee said that war is “a contest between independent sovereigns” but defined “independent sovereigns” to mean “nations, or private men, where there is no community.” … Without intending to be definitive, my view is that the best eighteenth century meaning of “war” would generally have connoted an armed struggle between sovereigns, but likely would have included contests with quasi-sovereign entities such as pirates.

Despite debate in ensuing years about the status of our conflict with al-Qaeda (and AQAP), I’m not aware that scholarship on eighteenth century non-sovereign warfare has advanced much beyond the little I wrote then.  On balance, the conclusion still seems right to me, not least because the English sources (chiefly Blackstone and Johnson) seem to understand sovereign versus non-sovereign (or at least quasi-sovereign) conflict as war, whereas the stricter definition is found in European writers such as Burlamaqui and Wolff.  Other things being equal, the English writers more likely influenced the framers’ understanding.  Further, the founding generation clearly thought conflicts with Native American tribes were “wars” governed by the Constitution’s war powers, even though the tribes may not have been regarded at the time as fully sovereign.  Still, as it stands this is fairly weak evidence.

Let’s assume, though, that Williamson is right that operations against al-Qaeda or AQAP aren’t war in the constitutional sense.  It’s not clear that he necessarily prevails.  The question becomes whether the due process clause is extraterritorial.  Here’s how I get to that conclusion.

(1) The President generally can’t order the killing of people within the U.S. because (a) that’s (usually) contrary to domestic law, and the President can’t alter domestic law (see Youngstown Sheet & Tube Co. v. Sawyer, where the Court reached a parallel conclusion barring seizure of private property); and (b) in any event the Fifth Amendment prevents deprivation of “life” without due process of law, a provision among other things mindful of abusive kings killing their domestic enemies.  (The situation of a war actually taking place in the U.S., like the Civil War, would of course be different).

(2) The President also can’t order killings abroad absent the consent of the territorial sovereign, because those would be acts of war reserved to Congress by the declare war clause.  But here (apparently) we had consent of the territorial sovereign, Yemen. Absent an express limitation elsewhere in the Constitution, the President likely has the power to act from Article II, Section 1’s grant of “executive Power,” which (I’ve argued) includes a general residual power over foreign affairs.  (And in any event the President can claim authorization from the AUMF, though there’s some question whether the AUMF covers AQAP).

(3) So the question is whether anything limits the President’s ability to use lethal military force abroad, short of war and with the consent of the territorial sovereign.  It can’t be (1)(a) above, because domestic law doesn’t apply abroad.  A limit might arise from international law, but I’ll leave that aside as Williamson doesn’t rely on it even indirectly.   It could be (1)(b), though – if the due process clause applies abroad.  In the nineteenth century the view was that the Constitution generally was not extraterritorial.  But I’m not aware of scholarship that satisfactorily links that view to the eighteenth century.

It’s true that in the founding era statutes generally weren’t extraterritorial.  But that rule had an exception for laws governing a nation’s own citizens.  Moreover, the Constitution is a bit different from a statute, in that it’s a limit on government rather than a limit on private parties.  It’s not clear that the founders wouldn’t have wanted to limit the government’s actions abroad.  Indeed, many of the Constitution’s structural provisions assign authority over extraterritorial actions such as making treaties and engaging in war.

It’s also possible that the Constitution applies abroad only to protect U.S. citizens.  Much has been made of the fact that al-Awlaki was a U.S. citizen (for example, in Greenwald’s Salon article noted above).  But it seems assumed, rather than proved, that this matters.  Certainly, it seems a reasonable assumption.  But originalism would demand that it rest on more than apparent modern reasonableness.  In particular, a central inquiry would be whether the English Bill of Rights was understood to apply to English citizens outside English territory.

I confess I don’t know the answer.  Thus this post is less about conclusions and more about questions.  It’s surprising that 10 years after 9/11 we don’t have more satisfactory and well-known originalist scholarship addressing two core questions: whether the eighteenth-century understanding of warfare included conflicts with non-state actors and to what extent the Constitution (especially the Bill of Rights) was thought to apply abroad.  Perhaps it's out there, and I just don’t know about it.  In that case, please let me know.