Targeting the twenty-first century outlaw.

• Author: Chong, Jane Y.
• Position: IV. The Constitutionality of Modern-Day Outlawry through Conclusion, with footnotes, p. 760-780

4. THE CONSTITUTIONALITY OF MODERN-DAY OUTLAWRY

   I have shown that outlawry enjoyed extensive use on both sides of the Atlantic and have offered practical arguments for resurrecting outlawry in the targeting context. But according to Professor Juan Cole, "The problem with declaring al-'Awlaqi an 'outlaw' by virtue of being a traitor or a terrorist is that this whole idea was abolished by the US constitution." (182) This Part focuses on establishing the opposite: judicial outlawry is not inherently inconsistent with the letter and spirit of the Constitution.

   Since outlawry entails punishment as well as process, here I examine concerns about whether outlawry would violate the Fifth and Eighth Amendments. The fact that this punishment would be imposed on named individuals without a trial, in turn, would appear to raise questions about whether outlawry violates prohibitions on attainder.

   1. Cruel and Unusual Punishment

      The outlawry and execution of a narrowly defined category of terrorists would not constitute cruel and unusual punishment. This position finds support in the general principles guiding the Supreme Court's assessments of Eighth Amendment claims, as well as in existing precedent governing the use of lethal force against fleeing felons in the United States.

      The Court's past approach to determining whether capital punishment violates the Eighth Amendment provides a helpful framework for analyzing the constitutionality of outlawry. In its 1976 decision in Gregg v. Georgia, (183) the Court looked to history and precedent to determine that capital punishment for murder was not a per se violation of the constitutional prohibition on cruel and unusual punishment. (184) The Gregg Court noted that the death penalty endured in cases of murder both at English common law and in the individual states. Capital punishment persisted even as the rules governing its imposition--much like those governing outlawry in criminal proceedings--became increasingly restricted, first due to the ever-narrowing category of murders punishable by death, and then through the adoption of laws allowing juries the discretion to grant mercy. (185) This historical evidence formed part of the basis for the Court's decision to uphold capital punishment.

      Similarly, the use of outlawry in states such as Pennsylvania in the late eighteenth century suggests that outlawry enjoyed acceptance as a practicable legal sanction around the time of the Constitution's drafting. Other evidence supports this observation. In a private letter written in 1794, Alexander Hamilton advocated for an outlawry bill and treason prosecutions in response to the violent Pennsylvanian protest of the federal excise tax during the Whiskey Rebellion. He reasoned, "A law regulating a peace process of outlawry is also urgent; for the best objects of punishment will fly, and they ought to be compelled by outlawry to abandon their property, homes, and the United States." (186) The Federalists eventually instead supported a military response to quell the rebellion. (187) Two years later, in 1796, a bill to regulate proceedings in cases of outlawry reached the floor of the U.S. House of Representatives. (188)

      Further, although outlawry per se has been largely dormant in most of the United States over the last century, numerous federal courts have determined that a common law rule authorizing the use of deadly force against a fleeing felon does not violate the Eighth Amendment. (189) Arrest, not execution, was the objective in these cases. However, the courts' tradition of upholding the constitutionality of the resort to lethal force at least begins to suggest that similar force might be acceptable under narrow circumstances in the counterterrorism context.

      The principle of proportionality has figured prominently in the Supreme Court's approach to determining whether a punishment accords with the Eighth Amendment. (190) At base, the punishment must not be excessive in either of two respects: it must not involve "unnecessary and wanton infliction of pain," and it must not be grossly disproportionate to the crime. (191)

      The outlawry and execution of fugitives who flee legal responsibility for the death of innocent civilians need not be excessive in either sense. Historically, the risk of authorizing use of force disproportionate to the underlying crime has been a major source of the courts' concerns about the propriety of using lethal force to effectuate arrests, especially in light of the growing number of lower-grade felonies created by legislation over time. (192) But execution upon outlawry need not implicate concerns of proportionality if drone strikes are properly restricted to a particular category of accused terrorists. (193) Modern-day protocol for reversal of outlawry would also mitigate concerns about the severity of the judgment. (194)

      Of course, historical evidence and precedent can only go so far in establishing that a particular practice accords with the Eighth Amendment. After all, the question of what constitutes cruel and unusual punishment "is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice." (195) Significantly, however, outlawry has proven capable of evolving along with mores. Indeed, moral concerns about outlawry appear to have often centered on practices either associated with extrajudicial outlawry or easily excised from judicial outlawry proceedings. For example, as discussed in Part I, in its earliest form a judgment of outlawry permitted--indeed, obliged--every man to slay the outlaw upon encountering him. But in the thirteenth century, this "barbaric justice" was abolished in England, even as outlawry itself remained in force. (196) Further supporting the proposition that private-citizen action need not be associated with outlawry is evidence that the practice of allowing private citizens to pursue fugitives actually outlived outlawry in the United States. At common law, posse comitatus referred to the power of authorities to request assistance from citizens in pursuing a criminal, with the civilians in pursuit using such force as deemed necessary to effectuate the arrest. (197) On the Western frontier, use of this power was interpreted as an authorization for manhunts. (198) A regime that empowers only government agents to execute a legal outlaw would preclude the public violence implicit in this kind of private-citizen action.

   2. Due Process

      Whether modern outlawry proceedings could meet constitutional due process demands is a holistic inquiry, intertwined with many of the considerations that are relevant to determining whether execution upon outlawry constitutes cruel and unusual punishment. (199) But to begin the analysis, it is worth noting that critics who allege that the government's targeted killing policy violates the Constitution's due process guarantees have not reached consensus on what protections would have sufficed in the case of Anwar al-Awlaki. Some commentators have pointed out that Awlaki was not provided formal notice or charged. (200) Still others have focused on the government's refusal to confirm the existence and contents of the CIA's kill list and the targets' lack of opportunity to surrenderY1 Many legal experts and ex-military officers have argued that, as a general matter, terror suspects must be afforded the same rights as ordinary criminal suspects in the form of a public trial in a federal court, irrespective of citizenship. (202)

      Outlawry's legitimacy as a legal judgment is predicated on fulfilling the first two sets of demands, for criminal proceedings and for the kind of notice that would allow the prospective target to submit to those proceedings. (203) However, outlawry law rejects the assumption built into the third demand--that due process requires a full trial. Outlawry posits instead that at the heart of due process lies the choice of trial. As the Supreme Court noted in 1894, it is axiomatic under our jurisprudence that due process gives the affected parties "an opportunity to be heard respecting the justice of the judgment sought." (204) And as the Pennsylvania Supreme Court declared in the case of Aaron Doan, outlawry does not deprive the accused of this opportunity to be heard: given adequate procedures for notice, the accused may claim his right to trial by surrendering to the legal process. (205)

      Modern practice confirms that the choice of trial, not trial itself, is the essence of due process. Approximately ninety-five percent of felony convictions in the United States are the consequence of individuals waiving their right to trial in favor of a plea bargain. (206) An effective waiver "is ordinarily an intentional relinquishment or abandonment of a known right." (207) The modern guilty plea meets this standard as an affirmative admission of wrongdoing and an express waiver of trial rights. (208)

      Whether outlawry is consistent with due process, in contrast, turns on the legitimacy of interpreting the suspected terrorist's failure to surrender as an intentional waiver (or perhaps forfeiture) of his trial rights. (209) Although current Supreme Court jurisprudence militates against such an interpretation in ordinary circumstances, (210) it seems reasonable to suggest a more flexible approach to waiver warrants consideration in the extraordinary counterterrorism context. After all, "[i]t is waiver of rights that permits the system of criminal justice to work at all." (211) Extending this truism to citizens who are accused of crimes so serious as to warrant their killing would allow the criminal justice system to work in the targeting setting.

      In the targeting setting, flight could be interpreted as a kind of constructive waiver. The constructive waiver, whereby a criminal defendant may waive a constitutional right by his conduct rather than by express request, arose out of Illinois v. Allen, (212) in which the Supreme Court ruled that a...