Targeting the twenty-first century outlaw.

• Author: Chong, Jane Y.
• Position: Introduction through III. The Case for Outlawry-Based Targeted Killing, p. 724-759

NOTE CONTENTS INTRODUCTION I. WHEREFORE OUTLAWRY? A. Due Process Requires Judicial Process B. Proposed Models of Judicial Review 1. Civil Action 2. Trial in Absentia 3. A Targeted Killing Court II. A BRIEF HISTORY OF OUTLAWRY A. Theory and Procedure at English Common Law B. Judicial Outlawry in the American Colonies and the Individual States C. Extrajudicial Outlawry in the United States III. THE CASE FOR OUTLAWRY-BASED TARGETED KILLING A. Outlawry Provides Properly Limited Judicial Process in the Form of Access to the Courts B. Outlawry Brings Targeted Killing in Line with Other Government Counterterrorism Operations Subject to Limited Judicial Review 1. Judicial Review in the Context of Wiretapping 2. Judicial Review in the Context of Detainment C. Outlawry Provides Coherent Principles for Legitimating and Limiting the Government's Use of Lethal Force IV. THE CONSTITUTIONALITY OF MODERN-DAY OUTLAWRY A. Cruel and Unusual Punishment B. Due Process C. Attainder V. UPDATING OUTLAWRY A. An Approach to Procedural Sufficiency B. Necessary Conditions for Lawful Modern Outlawry 1. Congressional Authorization 2. Formal Charges 3. Notice 4. Reversal of Outlawry upon Surrender C. Additional Considerations and Restrictions CONCLUSION INTRODUCTION

[T]hat outlawry is to be put aside as obsolete, and for that reason never to be enforced in any case, however grave, is a proposition which at least would seem to require further consideration. Future generations may unhappily have to face more troubled times, and "treason" may again be found in the indices of our text-books. Is it well to throw away a weapon which has been proved of service and which may be the only weapon available? -- Sir Henry Erie Richards (1902) (1)

On September 30, 2011, when drones fired Hellfire missiles at his convoy in Yemen, Anwar al-Awlaki did not become the first American citizen to be successfully targeted by his own government for execution without a trial. He became the first citizen known to be so killed abroad as part of the CIA's covert counterterrorism operations. (2)

As a general matter, government-sanctioned execution without trial is not a novel practice. Under the common law judgment of outlawry, a penalty "as old as the law itself," (3) a fugitive fleeing summons or indictment for a capital crime such as treason could be killed instead of captured on the theory that individuals unwilling to subject themselves to the judgment of the law could not avail themselves of its protections. A number of authorities have incorrectly asserted that outlawry, a legal weapon of critical importance for centuries in England, (4) "has never been known on this side of the Atlantic." (5) In fact, outlawry was practiced in the American colonies and remained in force as a criminal sanction in a number of states well after the ratification of the Constitution. North Carolina put its outlawry statute into occasional use until as late as 1975. (6)

In the context of modern terrorism, however, the term "outlawry" has been used loosely to refer to terrorist movements or state counterterrorism activities that operate outside a cognizable legal regime or violate established legal norms. (7) On the rare occasion when outlawry has been invoked as a legal sentence, it has been disparaged as the Western equivalent of the Islamic fatwa and as the barbaric analogue to current targeted killing practices. (8) In contrast, this Note examines the historical use and legitimacy of outlawry as a court-issued judgment. (9) My central argument is that the theory and past practice of outlawry provide helpful principles for narrowly crafting due process protections for prospective targets who are U.S. citizens. (10) Properly implemented, these protections would prevent their targeted killing from amounting to extrajudicial execution. (11)

The extraordinary circumstances of Awlaki's killing could not more clearly attest to the need for an extraordinary mechanism by which citizens accused of terrorism can be guaranteed an opportunity to partake in the legal process. One year and one month before the CIA-led drone attack on Awlaki and fellow American-born radical Samir Khan, (12) Awlaki's father sought unsuccessfully to enjoin the government from killing his son. (13) Nasser al-Aulaqi (14) claimed that the rumored targeted killing program violated both his rights and his son's rights under the Constitution and international law. (15) In its opposing brief, the Obama Administration refused to confirm or deny the existence of such a state-sponsored program but nevertheless objected to the requested injunction as an "unprecedented, improper, and extraordinarily dangerous" interference with the President's military powers. (16)

Judge Bates of the U.S. District Court for the District of Columbia ruled that the Executive's targeting determinations fall outside the courts' purview. This had the practical effect of permitting the Executive to kill Awlaki without judicial intervention, irrespective of whether the killing constituted a denial of due process. (17)

But the controversial decision also contained the intuition that informs this Note. Judge Bates declined to grant Awlaki's father standing as Awlaki's next friend, declaring that "no U.S. citizen may simultaneously avail himself of the U.S. judicial system and evade U.S. law enforcement authorities." (18) Judge Bates's reasoning suggests that even under modern precepts, a citizen's access to the legal system and his rights under that system are--or should be--predicated on his recognition of his obligations under that system.

The alternative would be to permit the alleged citizen-terrorist to exercise his legal rights even while refusing to submit to the legal system that affords those rights, turning the law into his shield while denying the government the use of the law as a sword. It is perhaps an unwillingness to accept this alternative, one that renders the government captive to its own legal process, that informs the Obama Administration's targeted killing policy. That policy is part of an aggressive counterterrorism agenda that has, by all media accounts, "baffled liberal supporters and confounded conservative critics alike." (19)

This Note shows that outlawry offers a narrow procedural avenue for bringing targeted killing within the bounds of the law, by explaining the conditions under which alleged citizen-terrorists place themselves outside the law.

The Note proceeds in five Parts. Part I provides an overview of the legal void that outlawry proceedings can be tailored to fill. Due process demands that targeted killings be subject to some measure of judicial scrutiny, but the most commonly proposed models of judicial review suffer serious defects. Part II traces the use of outlawry as a basis for executing untried fugitives throughout history, and distinguishes arbitrary and extrajudicial forms of outlawry from court-issued outlawry.

Part III presents a three-part case for outlawry-based targeted killings. First, outlawry can be used to subject the Executive's targeting determinations to judicial process without forcing the judiciary to make substantive national security assessments outside of its proper role. Second, this schema corrects the perverse effects of allowing the Executive to kill citizens with impunity while its other counterterrorism activities, notably in the context of detainment and surveillance, are subject to limited judicial scrutiny. Third, outlawry offers coherent principles for legitimating and delimiting the government's targeting powers.

Part IV addresses threshold issues that bear on the constitutionality of present-day outlawry. Part V then draws upon the theoretical justifications and historical underpinnings of outlawry law to spell out necessary conditions for the lawful outlawing of alleged citizen-terrorists. Part V concludes by proposing additional restrictions on the government's use of outlawry, given the demands of modern international law and key practical considerations.

Denial of a citizen's right to seek redress through the very legal system that he eschews echoes the logic of outlawry law, which withdraws the law's protections from those who refuse to submit to its obligations. (20) This Note accepts that the exigencies of twenty-first century terrorism may require authorizing the use of lethal force against citizens outside of a geographically circumscribed arena of warfare, but also recognizes that the Constitution demands that such targets be afforded a meaningful opportunity to submit to the legal process. My project is to reconcile these premises, using outlawry principles to construct a practicable alternative to executive carte blanche and to existing proposals for limited judicial review of targeting decisions.

1. WHEREFORE OUTLAWRY?

   This Part details this Note's most basic premise, a rejection of the Obama Administration's position that it affords targets due process. It then describes problems with existing proposals for judicial review. These proposals either fail to protect the prospective target's right to engage in the legal process, or advocate for what I argue is the wrong kind of judicial scrutiny, wherein the judiciary is forced to measure the threat that the target allegedly poses to national security.

   1. Due Process Requires Judicial Process

      The controversy over the legality of targeted killings has its roots in the profound confusion over whether terrorism is properly treated as a crime or as war, (21) and whether the government's counterterrorism strategies are therefore circumscribed by the rules of law enforcement or the laws of armed conflict. (22) The realities of twenty-first century international terrorism do not fit into this binary framework. (23) This is well reflected in the facts of Awlaki's death, far removed from any battlefield.

      But rather than conceding that its current targeted killing policy denies targets due process and justifying...