Why the “Public Authority” Defense Does Not Work for
the CIA
March
10th, 2013 by Kevin Jon Heller
I’m
grateful to Ken, Wells Bennett, and Marcy Wheeler for speculating
that my April 2010 blog post on 18
USC 1119, the foreign-murder statute, is the
post referred to in today’s New York Times article on
the behind-the-scenes machinations that culminated in the CIA using a drone to
kill Anwar al-Awlaki. I imagine they are correct; the post fits the timeline
and Marcy notes that no other post around that time on a legal blog
specifically addressed the foreign-murder statute. If so, it’s a testament to
the growing importance of academic blogging.
In
this post, I want to discuss the part of the White Paper that seems to
be motivated by the questions I raised in my 2010 post — Part III, which argues
that killing a US citizen abroad who qualifies as a senior operational leader
in al-Qaeda or its associated forces would not be murder because the
individual responsible for the killing would be entitled to a public-authority
defense. Here, for example, is one statement to that effect (p. 14):
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 an established variant of the public authority justification
and therefore would not be murder.
I have
no problem with sections A and B of Part III, which argue that an individual
prosecuted for violating the foreign-murder statute would be entitled to argue
that the killing was justified because it was conducted pursuant to public
authority. I also have no issue with the idea, offered in section C, that a
member of the US armed forces would indeed be acting pursuant to public
authority if he killed a combatant in an international armed conflict (IAC); in
such conflicts, members of a state’s armed forces always have the right to kill
— in other words, are justified in killing — members of the enemy state’s armed
forces. The existence of the combatant’s privilege in IAC is black-letter
international humanitarian law (IHL).
But
that is not the end of the inquiry, for one simple reason: al-Awlaki
was killed by the CIA, not by the US military. The White Paper does not
discuss whether a CIA drone operator would be entitled to a public-authority
defense in a prosecution under the foreign-murder statute; indeed, all of
the sources cited in III.C regarding the defense (p. 14) — three classic
criminal-law treatises and an old state case — claim that the laws of war
entitle a soldier to kill the enemy. They say nothing about
the right of anyone else to kill.
So
would a CIA drone operator be entitled to a public-authority defense? I don’t
see how. I won’t spend much time explaining why “national self-defense” does
not provide the requisite public authority; as I explain in my signature-strikes article (and
as Marko Milanovic explains here), a legitimate act of
self-defense may justify the US violating another state’s sovereignty, but it
does not — and cannot — justify depriving the
target of his right to life. That deprivation would have to be
independently justified either by IHL (if the killing took place in armed
conflict) or by IHRL (if it took place outside of armed conflict). In the words
of the International Law Commission’s commentaryto the Draft
Articles on the Responsibility of States for Internationally Wrongful Acts:
This
is not to say that self-defence precludes the wrongfulness of conduct in all
cases or with respect to all obligations…. As to obligations under
international humanitarian law and in relation to non-derogable human rights
provisions, self-defence does not preclude the wrongfulness of conduct.
The
real question, then, is whether the laws of war would justify a CIA drone
operator killing an American citizen like al-Awlaki. Let’s assume, for sake of
argument, three things: (1) the killing took place in armed conflict, so was
subject to IHL; (2) the target qualified as a combatant, or at least as a
civilian directly participating in hostilities, at the time of the attack; and
(3) members of the US armed forces possess the combatant’s privilege — the
right to kill — in non-international armed conflict (NIAC) as well as in
international armed conflict. All three assumptions are debatable; I have
discussed (1) and (2) many times on the blog and in my scholarship, and it’s
not worth getting into (3) here, because the US has always accepted it.
But
even if we grant those assumptions, I simply fail to understand how the US could argue that a CIA drone operator has the right to kill
an American citizen abroad, even one who otherwise qualifies as a
legitimate target. In an international armed conflict, the categories of
individuals who possess the combatant’s
privilege are specified by Art. 43 of the First Additional Protocol (AP
I):
Art
43. Armed forces
1.
The armed forces of a Party to a conflict consist of all organized armed
forces, groups and units which are under a command responsible to that Party
for the conduct of its subordinates, even if that Party is represented by a
government or an authority not recognized by an adverse Party. Such armed
forces shall be subject to an internal disciplinary system which, inter alia,
shall enforce compliance with the rules of international law applicable in
armed conflict.
2.
Members of the armed forces of a Party to a conflict (other than medical
personnel and chaplains covered by Article 33 of the Third Convention) are
combatants, that is to say, they have the right to participate directly in
hostilities.
3.
Whenever a Party to a conflict incorporates a paramilitary or armed law
enforcement agency into its armed forces it shall so notify the other Parties
to the conflict.
The
CIA is obviously not an “organized armed force, group, or unit” that is under
the command of the US military; the CIA is, in its own words, “an independent
US Government agency responsible for providing national security intelligence
to senior US policymakers.” Nor are the CIA’s drone strikes controlled by the military (which
would not satisfy Art. 43 anyway). The interesting provision is paragraph
3. The CIA may be an “armed law enforcement agency,” but it still does not
satisfy Art. 43(3): first, it has not been “incorporated” into the US’s armed
forces, because incorporation requires national legislation subjecting the agency
to military control (see the ICRC Commentary to AP I,
para. 1682); and second, the US has not informed al-Qaeda and its associated
forces that it has been so incorporated — indeed, as widely noted, the US has never even formally acknowledged that
the CIA drone program exists.
In an
IAC, then, CIA drone operators would not have the right under IHL to kill
anyone. And it is difficult to see how the situation could be any different in
a NIAC. Arguing that the rules of IAC apply analogically in NIAC, as the US
often does – it borrows the concept of an
al-Qaeda “associated force,” for example, from the IAC concept of
co-belligerency — is no help, for all the reasons just mentioned. So the US
would have to argue that the category of privileged combatants in NIAC is
somehow actually wider in NIAC than in IAC, an idea for which
there is no precedent in state practice and little if any support in
conventional international law. (An excellent Australian scholar, Ian
Henderson, has argued that a state can authorize anyone it wants to
use lethal force in a NIAC. I don’t find his argument persuasive,
particularly in the context of a transnational NIAC where a state is using
force on the territory of many other states, but interested readers should
check out his article.)
This
is a critical conclusion. If a CIA drone operator does not possess the
combatant’s privilege in the US’s “NIAC” with al-Qaeda and its associated
forces, the US cannot plausibly argue that — to quote another paragraph in the
White Paper (p. 15) — killing someone like al-Awlaki “would constitute a lawful
killing under the public authority doctrine” because it was “conducted in a
manner consistent with the fundamental law of war principles governing the use
of force in a non-international armed conflict.” Such a killing would not be
“consistent with the “the fundamental law of war principles governing the use
of force,” because the absence
of combatant’s privilege means that a CIA drone operator has no
right under IHL to use any force at all. As a result, a CIA
drone operator prosecuted for violating the foreign-murder statute would not be
entitled to a public-authority defense – at least insofar as the US
purports to base his or her public authority from IHL’s recognition of the
right of privileged combatants to kill.
Finally,
I want to say a few words about Part IV of the White Paper, which argues that
killing someone like al-Awlaki would not qualify as a war crime. I completely
agree with that conclusion, assuming that the target of the drone strike was,
in fact, a combatant or a civilian directly participating in hostilities.
An unprivileged combatant — ie, someone who does not possess the combatant’s
privilege — does not commit a war crime simply because he uses force; he
commits a war crime only if he uses force in a manner specifically prohibited
by IHL. That’s why, for example, considering al-Nashiri’s attack on the USS
Cole to be a war crime is absurd: although
al-Nashiri had no right to use force against the USS Cole, the USS Cole was a
legitimate military target that could have been lawfully targeted by a
privileged combatant.
Does
that mean al-Nashiri did not commit a criminal act when he attacked the USS
Cole? Absolutely not. But here’s the point: an unprivileged combatant who
attacks a legitimate military target does not commit a war crime, but
his actions can still be prosecuted as an ordinary crime under domestic law.
The US has every right to prosecute al-Nashiri for murder in a federal court —just
as it would have every right to prosecute an American who, because he lacked
the combatant’s privilege, violated federal law by using force against a target
that could have been lawfully attacked by a privileged combatant.
Sound
familiar? This is exactly the situation faced by a CIA drone operator who kills
an American citizen abroad. Because CIA drone operators do not possess the
combatant’s privilege, a drone operator does indeed violate federal law when he
kills an American citizen abroad — namely, the foreign-murder statute.
That is true even though the exact same attack would not be criminal if it was
carried out by a drone operator working for the US military. The difference is
precisely one of public authority: the military drone operator has it (the
combatant’s privilege); the CIA drone operator does not.
NOTE:
An earlier version of this post suggested that the White Paper was written
prior to al-Awlaki’s death. The New York Times article claims
that, on the contrary,it was “prepared months after the Awlaki and Khan
killings amid an internal debate over how much to disclose.” If so, that’s
troubling — because it suggests that the author(s) of the White Paper did not
even recognize that the public-authority defense might function differently
depending on whether the defendant in a prosecution under the foreign-murder
statute was a soldier or a CIA officer.
