At the most superficial level, Judge David Barron, who the Senate confirmed last week to a seat on the United States Court of Appeals for the First Circuit, is easy to compare to the infamous Bush Administration attorney John Yoo. Yoo authored several infamous memos while he was a senior attorney in the Justice Department’s Office of Legal Counsel, which argued that it was perfectly legal to torture so-called “enemy combatants” captured during the Bush Administration’s efforts to fight terrorism. Barron, also as a senior attorney in the same Justice Department office, authored several memos concerning the use of drones to target suspected terrorists during the Obama Administration — including at least two concerning whether the president may order a senior enemy combatant who is also an American citizen killed without trial.
But the similarities between the two men end there. Torture, of the kind endorsed by Yoo, is explicitly forbidden by federal law. There is no similar law governing targeted drone strikes. Nor does any provision of the Constitution grant American citizens who are actively engaged in hostilities against the United States immunity from a military strike. The Office of Legal Counsel’s job is not to provide moral or strategic advice to the president, it is to advise the administration on what is legal — and the uncomfortable truth is that targeted killings of senior enemy combatants are legal, regardless of their citizenship status.
That does not mean that such targeted killings need to remain legal forever — indeed, we have highlighted several possible ways Congress could limit the president’s power to authorize such attacks. Until Congress acts, however, the president has much broader discretion in this area than many Americans are comfortable with the nation’s chief executive having.
Secrecy And Legality
As recently as a few weeks before Barron’s confirmation, the fate of his nomination seemed uncertain at best. Republican opposition to Barron was predictable. Prior to his recent ascension to the bench, Barron was a Harvard law professor with a long paper trail that conservative activists could use against him. He’s defended campaign finance regulation in the Supreme Court. He formally withdrew many of the Bush Era torture memos while he was acting head of the Office of Legal Counsel. And he’s also already being talked about as a potential Supreme Court nominee. Barron is, in short, a known liberal with a very bright future ahead of him. That meant that he had a big target on his back.
Meanwhile, shortly before his confirmation vote, liberal and, in some cases, libertarian opposition to Barron arose due to concerns about the memos Barron drafted regarding targeted killings. Some of this opposition stemmed from the Obama Administration’s lack of transparency regarding these memos. Though the existence of the memos — including Barron’s conclusion that the United States could legally target an American-citizen-turned-al-Qaeda-leader named Anwar al-Awlaki — is not a secret. The memos themselves are not available to the public.
Just two days before Barron’s confirmation vote, however, the Justice Department announced that it would not appeal a court order requiring the disclosure of one of these memos and that it would release a redacted version to the public. This decision was likely made, at least in part, to placate several Senate Democrats who were uncertain votes on Barron. Sen. Ron Wyden (D-OR), for example, announced a day later that he would support Barron and that he agreed with Barron’s ultimate conclusion that the strike on al-Awlaki was “legitimate and lawful.” Though he added that “[i]t is unfortunate that it took Mr. Barron’s nomination for the Justice Department to make these memos public.”
That left Sen. Rand Paul (R-KY) to lead much of the charge against Barron. In an op-ed Paul published earlier this month, the senator disagreed with Barron’s substantive conclusion that targeted killings of citizen enemy combatants are lawful outside of very limited circumstances. “In battle, combatants engaged in war against America get no due process and may lawfully be killed,” Paul conceded. “But citizens not in a battlefield, however despicable, are guaranteed a trial by our Constitution.”
Yamamoto, bin Laden and al-Awlaki
Paul’s formulation has intuitive moral appeal, but it is not an accurate statement of the law. Paul is correct that “combatants engaged in war against America get no due process and may lawfully be killed,” but this also applies to senior combatants who direct others to take hostile actions against the United States — and not just to soldiers on the front lines. The Constitution did not prohibit American forces from targeting Japanese Admiral Isoroku Yamamoto, who was killed during an American air strike in World War II. Nor did it prohibit us from targeting Osama bin Laden, even though bin Laden was not a member of a traditional uniformed military.
Paul, however, argues that al-Awlaki is legally distinct from bin Laden and Yamamoto because of his citizenship status — Mr. al-Awlaki was born in New Mexico while his Yemeni father was a graduate student in the United States. But there’s nothing in the Constitution itself that supports this distinction. According to Paul, because al-Awlaki is an American citizen he “should have been tried — in absentia, if necessary” before he could be targeted for an attack.
For starters, this idea of a capital trial where the accused is not even present makes a mockery of the American system of criminal justice. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to . . . be informed of the nature and cause of the accusation [and] to be confronted with the witnesses against him.” That’s tough to do when the accused is tried in absentia. Meanwhile, there are obvious strategic and tactical reasons why the United States doesn’t want to broadcast to one of its enemy’s leaders that it intends to kill them.
The Sixth Amendment’s text also does not draw a distinction between citizens and non-citizens, it simply refers to the “accused.” It is also limited in scope to “criminal prosecutions,” not to military strikes. It is obviously unworkable, as Paul admits, to treat members of an enemy force as a criminal defendant and afford them a trial before they can be targeted by U.S. forces.
Alternatively, al-Awlaki might be protected by the Fifth Amendment, which provides that “[n]o person” may be “deprived of life, liberty, or property, without due process of law.” Here, as well, however, the Constitution makes no distinctions between citizens and non-citizens. The clear implication is that due process rights apply to citizens and non-citizens alike. In other words, the naked text of the Constitution suggests a rather stark conclusion — that citizen combatants such as al-Awlaki do not need to be given any legal protections that we would not have given Osama bin Laden.
Barron’s Limits & Yoo’s Lawlessness
The Obama Administration — and presumably, Judge David Barron — did not reach this stark conclusion in evaluating whether they could target al-Awlaki, however. Though Barron’s redacted memos are not yet publicly available, a Justice Department white paper released last year lays out the administration’s legal reasoning regarding “the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force.” This white paper offers three criteria to guide the administration’s determination of when “an operational leader continually planning attacks against U.S. persons and interests” can be targeted:
(1) where an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) where a capture operation would be infeasible — and where those conducting the operation continue to monitor whether capture becomes feasible; and (3) where such an operation would be conducted consistent with applicable law of war principles.
There’s a lot to be troubled about in this formulation. As ThinkProgress wrote shortly after this white paper was released, “This framework ensures both that decisions can be made swiftly and by officials with a broad understanding of both the details of a particular operation and of the laws governing war. But it also means that there is little external check on an executive branch eager to use its power irresponsibly. And even if you trust President Obama to not abuse a power to order targeted killings, there is no guarantee that the next president can also be trusted.”
At the same time, however, it is not a formulation that is without limits. Last year, for example, Paul warned about a hypothetical situation where “Americans could be killed [by a drone strike] in a cafe in San Francisco, or in a restaurant in Houston or at their home in Bowling Green, Kentucky.” But it’s all but certain that a “capture operation” would be feasible in these cases — and thus a targeted strike would not be authorized under the Obama Administration’s framework. The same thing can be said about Americans abroad in friendly countries whose governments control their entire landmass.
Compare these real, if potentially inadequate, limits to the rather limitless framework John Yoo laid out during the Bush Administration. In a 2003 memo signed by Yoo, for example, the Bush Administration lawyer lays out a truly breathtaking vision of federal power:
Any effort by Congress to regulate the interrogation of enemy combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President. . . . Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield. Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that would prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.
There are numerous federal laws forbidding torture. One, for example, provides that “[w]hoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years,” or potentially even face the death penalty if they torture someone to death. Yet, under Yoo’s framework, these laws are unconstitutional.
Similarly, Yoo’s framework would prohibit any nearly any limit on the president’s ability to target U.S. citizens in wartime, as these laws would “dictate strategic or tactical decisions on the battlefield.” If the president determined that a hostile enemy combatant was sitting in a “cafe in San Francisco,” Yoo’s formulation suggests that it would be perfectly fine to send a drone after them.
Until Congress Acts
Lest there be any doubt, Yoo’s reading of the Constitution is wrong. Indeed, the Supreme Court established during the very early days of the Republic that Congress may place limits on how the president wages war. That was the holding of the Court’s 1804 decision in Little v. Barreme. If Congress passes a law forbidding torture, or forbidding targeted killings of American citizens, then the president must comply with it.
Short of an outright ban on targeted killings, Congress has other options. It could increase the transparency of Executive Branch decisions to target individuals, or it could require mandatory consultation with Congressional leaders, or it could create a special court — similar in character to the FISA court — that would allow independent review of orders to target a particular individual. It could also codify the limits described in Barron’s memos. Or it could develop new limits and codify those as well.
But Congress has not yet done so, and this is what ultimately distinguishes Barron’s memos from Yoo’s — at least as a legal matter. Yoo wrote that the president can outright flout federal law. Barron, by contrast, was writing about an area where federal law is largely silent, outside of an very broadly worded Authorization of Military Force enacted shortly after the 9/11 attacks.
Nevertheless, the history of John Yoo and the Torture Memos should disturb anyone who is worried about the hypothetical that Paul and others have laid out — or anyone else with a healthy fear of presidents with largely unchecked warmaking power. Though this administration recognized some limits on its ability to target U.S. citizens, there’s no guarantee that the next administration will do the same. An Act of Congress limiting the president’s power to strike Americans won’t prevent people like Yoo from claiming that the president can flout the law, but it will leave no doubt that the president is acting illegally if they do so.