Greenlighting American Citizens: Proceed with Caution

• Author: Philip Dore
• Position: J.D./D.C.L., 2012, Paul M. Hebert Law Center, Louisiana State University
• Pages: 255-286

Greenlighting American Citizens: Proceed with

Caution

TABLE OF CONTENTS

Introduction ..........................................................................256

I. Green Light: The Obama Administration’s Decision to

Kill al-Awlaki ......................................................................258

A. Framing the Issue ...........................................................258

1. Al-Awlaki—The Facts .............................................258

2. The Doctrinal Dilemma Posed by Targeting

al-Awlaki ..................................................................260

B. Relevant Statutes & Treaties ..........................................262

1. The Foreign-murder Statute .....................................262

2. Authorization for Use of Military Force (AUMF) ...262

3. International Law—The Geneva Conventions ........263

C. Recent Developments—Al-Bihani v. Obama ................264

II. Yellow Light: Is Killing al-Awlaki Prohibited by the

Foreign-murder Statute? ......................................................266

A. Are International Law Norms Automatically a

Part of U.S. Domestic Law? ..........................................267

1. Pre-Medellin Treaty Status in U.S. Domestic

Law ..........................................................................267

2. Post-Medellin Treaty Status in U.S. Domestic

Law ..........................................................................269

3. The Medellin Paradigm and the International

Laws of War .............................................................273

B. Circumventing Non-self-execution—Has Congress

Incorporated the Laws of War? ......................................274

1. Incorporation of the Laws of War in the UCMJ ......275

2. Incorporation of the Laws of War in the AUMF .....277

C. The Showdown: Foreign-murder Statute v. AUMF ......283

Conclusion ...........................................................................285

256 LOUISIANA LAW REVIEW [Vol. 72

INTRODUCTION

Name-calling is hurtful. But when the Obama Administration

labeled Anwar al-Awlaki as a “global terrorist,”1 it was a death

sentence. According to various media reports, the Obama

Administration has authorized the C.I.A. to use lethal force against

al-Awlaki, a dual U.S.-Yemeni citizen.2 A U.S. drone attack

targeted but missed al-Awlaki in May 2011.3 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.4 Al-Awlaki and another American citizen, Samir Khan,

were killed.5

Copyright 2011, by PHILIP DORE.

1. See Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 13 (D.D.C. 2010) (“[T]he

United States has neither confirmed nor denied whether . . . it has . . . authorized

the use of lethal force against [al-Aulaqi] . . . .”); id. at 8 (“On July 16, 2010, the

U.S. Treasury Department’s Office of Foreign Assets Control . . . designated

Anwar Al-Aulaqi as a Specially Designated Global Terrorist . . . .”).

2. See, e.g., Peter Finn, Secret U.S. Memo Sanctioned Killing of Aulaqi,

WASH. POST, Sept. 30, 2011, available at http://www.washingtonpost.

com/world/national-security/aulaqi-killing-reignites-debate-on-limits-of-executive

-power/2011/09/30/gIQAx1bUAL_story.html; Vicki Divoll, Editorial, Will We

Kill One of Our Own?, L. A. TIMES, Apr. 23, 2010, at A25; Aamer Madhani, What

Makes Cleric al-Awlaki so Dangerous; Terrorist Wears Mask of Scholar, Knows

His Foe, USA TODAY, Aug. 25, 2010, at A1, available at http://www.usatoday.

com/printedition/news/20100825/1a_awlaki25_cv.art.htm; Charlie Savage,

Secrets Cited in White House Effort to Block Suit, N.Y. TIMES, Sept. 25, 2010, at

A7, available at http://www.nytimes.com/2010/09/25/world/25awlaki.html.

3. Erika Solomon & Mohammed Ghobari, CIA Drone Kills U.S.-Born al

Qaeda Cleric in Yemen, REUTERS, Sept. 30, 2011, available at http://www.

reuters.com/article/2011/09/30/us-yemen-awlaki idUSTRE78T0W320110930;

Mark Mazzetti, Eric Schmitt, & Robert F. Worth, Two-Year Manhunt Led to

Killing of Awlaki in Yemen, N.Y. TIMES , Sept. 30, 2011, available at http://

www.nytimes.com/2011/10/01/world/middleeast/anwar-al-awlaki-is-killed-in-

yemen.html.

4. See Solomon & Ghobari, supra note 3; Mazzetti, Schmitt, & Worth,

supra note 3; Paul Harris & Jamie Doward, How U.S. Tracked Anwar al-Awlaki

to his Death in Yemen, THE GUARDIAN, Oct. 1, 2001, available at http://www.

guardian.co.uk/world/2011/oct/01/yemen-drone-killing-ibrahim-al-asiriri.

5. Mazzetti, Schmitt, & Worth, supra note 3; Mark Schone & Matthew

Cole, American Jihadi Samir Khan Killed With Awlaki, ABC NEWS, Sept. 30,

2011, available at http://abcnews.go.com/Blotter/american-jihadi-samir-khan-

killed-awlaki/story?id=14640013. Samir Khan, an America citizen of Pakistani

origin, was an editor of al-Qaeda’s English-language online magazine. Mazzetti,

Schmitt, & Worth, supra note 3. U.S. officials said that the drone strike may

also have killed Ibrahim Hassan al-Asiri, a Saudi bomb maker responsible for

the weapon carried by Umar Farouk Abdulmutallab who attempted to detonate

explosives on an American jetliner en route to Detroit. See Mazzetti, Schmitt, &

Worth, supra note 3; infra note 22.

2011] COMMENT 257

This Comment argues that the C.I.A.’s targeted killing of al-

Awlaki is prohibited under 18 U.S.C. § 1119,6 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,7 and (2) those laws have not been

incorporated in domestic legislation.8 Consequently, the

Administration must rely on the Authorization for Use of Military

Force (AUMF) to justify violating the foreign-murder statute.9 The

AUMF does not, however, provide the needed justification. 10

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.11 It concludes with a

discussion of Al-Bihani v. Obama, the judiciary’s latest ruling

regarding the relationship between international and domestic

law.12 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.13 The domestic status of relevant

provisions of the laws of war is then considered in light of

Medellin.14 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.15 This

section is followed by a discussion of whether the AUMF

supersedes the foreign-murder statute.16 The Comment concludes

that the foreign-murder statute prohibits the targeted killing of al-

Awlaki.

6. 18 U.S.C. § 1119 (2006).

7. See discussion infra Part II.A.

8. See discussion infra Part II.B.

9. One argument that could be made is that the foreign-murder statute is

unconstitutional, because it infringes upon the Commander-in-Chief’s wartime

powers. Whether the President can ignore certain domestic law during wartime

is not addressed in this Comment. This issue has been discussed extensively

elsewhere. See generally Trevor W. Morrison, Constitutional Avoidance in the

Executive Branch, 106 COLUM. L. REV. 1189 (2006); Harold Hongju Koh, Can

the President be Torturer in Chief?, 81 IND. L.J. 1145 (2005); Neil Kinkopf, The

Statutory Commander in Chief, 81 IND. L.J. 1169 (2005).

10. See discussio n infra Part II.C.

11. See discussio n infra Part I.A–B.

12. See discussio n infra Part I.C.

13. See discussio n infra Part II.A.1–2.

14. See discussion infra Part II.A.3.

15. See discussion infra Part II.B.

16. See discussio n infra Part II.C.