Saturday, November 12, 2011
Philip Dore (Student, Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted Greenlighting American Citizens: Proceed with Caution (Louisiana Law Review, Vol. 72, p. 255, 2011) on SSRN. Here is the abstract:
Name-calling is hurtful. But when the Obama Administration labeled Anwar al-Awlaki as a “global terrorist,” it was a death sentence. According to various media reports, the Obama Administration authorized the C.I.A. to use lethal force against al-Awlaki, a dual U.S.-Yemeni citizen. A U.S. drone attack targeted but missed al-Awlaki in May 2011. Approximately four months later, armed drones operated by the C.I.A. fired a barrage of Hellfire missiles at a car carrying him and at least one other person. Al-Awlaki and another American citizen, Samir Khan, were killed.
This Comment argues that the C.I.A.’s targeted killing of al-Awlaki is prohibited under 18 U.S.C. § 1119, commonly known as the foreign-murder statute. Although the Obama Administration might seek to avoid this prohibition by relying on the laws of war, this Comment concludes that any such reliance is misplaced for two reasons: (1) the particular laws of war on which the Administration must rely are non-self-executing, and (2) those laws have not been incorporated in domestic legislation. Consequently, the Administration must rely on the Authorization for Use of Military Force (AUMF) to justify violating the foreign-murder statute. The AUMF does not, however, provide the needed justification.
Part I of this Comment explores the background of the President’s authorization to target al-Awlaki and the federal and international law relevant to that decision. It concludes with a discussion of Al-Bihani v. Obama, the judiciary’s latest ruling regarding the relationship between international and domestic law. Part II begins with a discussion of the status of treaties in the United States before and after Medellin v. Texas, a pivotal Supreme Court decision.The domestic status of relevant provisions of the laws of war is then considered in light of Medellin. Part II next discusses whether those laws of war have been incorporated through a federal statute, specifically, the Uniform Code of Military Justice (UCMJ), or the AUMF.This section is followed by a discussion of whether the AUMF supersedes the foreign-murder statute.
The Comment concludes that the foreign-murder statute prohibits the targeted killing of al-Awlaki. Thus it is difficult to avoid the conclusion that any C.I.A. operative that executed President Obama’s order to kill al-Awlaki is guilty of murder under the foreign-murder statute. An equally unavoidable conclusion is that certain high-ranking executive officials, including the President, would share in that criminal culpability.