CIA, Drone Strikes, and Public Authority: Responding to Kevin Heller

Kevin Heller and I have been debating whether the CIA drone strike targeting Anwar al-Aulaqi violated 18 USC 1119, which makes it a felony to kill American citizens overseas (to be clear, our exchange has not extended to Due Process Clause questions or to international law questions such as whether that attack related to a NIAC, etc.). In connection with the question whether the "public authority" justification shields CIA from section 1119, Kevin had advanced the claim that the CIA cannot point to the AUMF as statutory authority to engage in uses of force (because section 2 of the AUMF has a title referring only to the armed forces), and for the sake of argument I have accepted that premise, arguing in the alternative that Article II can and does do the exact same work. That is: If we assume for the sake of argument that the President’s Article II authority to use lethal force in national self-defense has been triggered, it can provide the foundation for a “public authority” justification just as well as the AUMF concededly does. Kevin has responded, and in a moment I'll engage with his argument. I do want to underscore two points first, however. One, I'm not actually agreeing with his AUMF reading. Yes, Section 2's title refers to the armed forces, but the actual text of section 2 is not so limited (in contrast to the similar section of the 2002 Iraq AUMF, for example, which did refer explicitly and only to armed forces). Two, it is worth noting that any debate about the constraining effect of 50 USC 3093(a)(5), which places conditions on the ability of the president to authorize covert action, is not relevant only for CIA. The Title 50 covert action system of course is especially relevant for CIA, which is the usual entity charged with carrying out an authorized covert action, but though this point often gets overlooked the rules governing covert action in fact are institution-neutral; they apply to any entity engaging in activity qualifying as covert action, and conversely they have no application at all should CIA conduct an activity overtly. Ok, on to business. Assuming for the sake of argument the AUMF is irrelevant to CIA thanks to the title of Section 2, can CIA benefit from the public-authority justification? Kevin’s response, posted here, is very interesting, and gave me much to ponder. If I may, I’ll simplify his argument to the following sequence (I apologize in advance if I’ve misunderstood or misstated anything): 1. The President may not authorize covert action that would violate an otherwise-applicable federal statute. Title 50’s covert-action provision says as much. 50 USC 3093(a)(5):

“(5) A finding may not authorize any action that would violate the Constitution or any statute of the United States.”

2. The government’s argument that CIA drone strikes do not “violate” section 1119 turns on an affirmative defense (the public-authority justification). 3. An affirmative defense in the form of justification accepts that the statute in question was indeed “violated”; it’s just that a proper justification causes that violation to be excused such that no liability attaches. 4. Since that is how justifications work, CIA has a problem: it can’t benefit from the public-authority justification without accepting that 1119 indeed is violated in the first instance...and Title 50 (see #1 above) does not allow covert action to violate statutes. This chain of reasoning turns, I think, on how we interpret the language quoted above from 50 USC 3093(a)(5), and specifically how we interpret the rule against covert action that would “violate” a statute. There is an interpretive choice here, and it is not clear to me that the right answer is the one Kevin gives. Simply put, there is a choice between reading “violate” in § 3093(a)(5) as broadly as possible--i.e., taking no account of justifications--or instead reading it to incorporate the possibility of justifications. I take Kevin to be saying that there is no such choice here because of the very nature of justifications; as a doctrinal matter justifications assume a violation has occurred, and since “violation” is the word used in 3093(a)(5) we just cannot construe the statute to encompass justifications. That is a strong argument, and it gives me much pause. But I’m not convinced. To be clear, it's not that I question his account of the nature of justifications. That is, I’m not trying to claim they work other than as he has described. It does not follow, though, that 3093(a)(5)'s reference to statutory violations must be interpreted as Kevin suggests. The issue is how to interpret the word “violate” in 3093(a)(5). And I think that the more persuasive reading is one that allows for justifications. Does this give the game away, emasculating 3093(a)(5) by allowing President’s to order covert actions that violate statutes wily-nily? I would reject my proposed interpretation if so, for that would conflict with manifest Congressional intent. But I don’t think that interpreting 3039(a)(5) to accommodate justifications leads to that result. There must still be a legitimate basis for invoking the public-authority justification in the first place. Where, as here, the proffered basis is that there is an armed conflict and the action involved was a lawful use of force, either an AUMF or a legitimate Article II self-defense claim should suffice to support the claim. This distinguishes the al-Aulaqi scenario (assuming for the sake of argument that he was a proper target in an armed conflict) from the torture scenario Kevin mentioned in his post (I appreciate that Kevin made a point of saying that I would not likely endorse the torture scenario; quite right).