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Targeting the twenty-first century outlaw.

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.

I. 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.

A. 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 this denial on the grounds of wartime exigency, the Obama Administration has chosen to redefine due process. (24) In a March 5, 2012, speech, Attorney General Eric Holder alluded to Judge Bates's ruling in Al-Aulaqi v. Obama as clear support for the proposition that due process "does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization ... even if that individual happens to be a U.S. citizen." (25) The Attorney General's claim mischaracterized Judge Bates's decision and contradicted an array of significant legal precedents.

To begin, Judge Bates did not rule on the due process implications of the government's secret killing operations. Judge Bates dismissed the case for lack of jurisdiction, and expressly recognized in doing so that his decision marked the first time that an American court had, on political question grounds, refused to hear a citizen's claim that government action abroad had violated his constitutional rights. (26)

Moreover, despite recognizing the inherent difficulty of demarcating where due process begins and ends, (27) the Supreme Court has insisted that courts play a meaningful role in protecting the individual from arbitrary government action, even in wartime. (28) At minimum, this protection includes notice and an opportunity for a hearing before the individual is deprived of life, liberty, or property. (29)

The Court's affirmation of these principles in the detainment context has served as a natural starting point for discussing judicial scrutiny of targeted killings. (30) In Hamdi v. Rumsfeld, (31) a plurality deferential to the Executive nonetheless concluded: "Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake." (32) In upholding the habeas rights of a noncitizen Guantanamo Bay detainee in Boumediene v. Bush, (33) the Court further stated that "[w]ithin the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person." (34) Indeed, the only exercise of judicial power more legitimate or necessary would seem to be the judiciary's responsibility to hear challenges to the President's authority to kill a person. (35)

Although Attorney General Eric Holder suggested that the President's targeted killing policy satisfies the separation of powers because the President would "regularly inform[]" Congress of his use of lethal force, (36) legislative oversight is not sufficient to fulfill constitutional due process guarantees. (37) As Alexander Hamilton declared in a 1787 speech to the New York Assembly, "The words 'due process' have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature." (38) Additional authority from the preconstitutional and Founding eras supports the position that the phrase "due process of law" at the time of the Fifth Amendment's ratification referred specifically to judicial procedures. (39)

Yet the government characterizes the extrajudicial targeting of alleged terrorists as a well-supported modern practice. The Obama Administration claims that lethal force is no more categorically prohibited against a twenty-first century American terrorist, allegedly responsible for the mass murder of civilians, than it was against Admiral Isoroku Yamamoto, mastermind of the Pearl Harbor attack in World War 11. (40) But this claim cannot survive on the delusion that identical risks and rules govern the execution of these two targets--the naval commander of a country that has formally declared war on the United States, and a citizen whose crimes the American government will not detail and whose death warrant the government will not admit it has signed. (41)

In a February 22, 2012, speech, Pentagon General Counsel Jeh Johnson ignored the risks and rules altogether, when he announced that "in the conflict against an unconventional enemy such as al Oaeda, we must consistently apply conventional legal principles." (42) Specifically, he ignored the fact that unconventional enemies such as Awlaki are not clearly legitimate targets of lethal force under conventional legal principles. Traditionally, legitimate targets are uniformed and participate in hostilities on a defined battlefield. The killing of alleged militants like Awlaki, in contrast, makes for a number of complications, including possible error in identifying the target. (43) For example, in 2004, the CIA detained German citizen Khaled el-Masri for months in Afghanistan before conceding that it had seized the wrong man. (44) The error points to plain practical problems with arguing the sufficiency of rigorous internal executive review.

Professors Richard Murphy and Afsheen Radsan sum up the problem simply: "In the real world, intelligence is sometimes faulty. Mistakes occur, and peaceful civilians are at risk. The law's method for preventing the government from harming people based on mistaken facts is to insist on reasonable or 'due' process." (45)

B. Proposed Models of Judicial Review

Accepting that due process requires judicial process necessarily opens the door to subjecting the government's targeting determinations to varying degrees of judicial scrutiny. With an eye on the fallibility of government intelligence, this Section offers a brief critique of some existing proposals for limited judicial review of unilateral executive targeting determinations.

I. Civil Action

In 2009, Professors Murphy and Radsan used the due process model that emerged from the Court's detainment decisions as a basis for arguing that Bivens-style private civil actions could enable targets to challenge the legality of their placement on the kill list after an attack. (46) The proposal conceded that the role for the courts under such a schema would be "vanishingly small," but deserves mention for offering a form of limited judicial scrutiny designed to establish executive accountability with minimal harm to national security. (47)

Yet in the wake of Awlaki's killing, ex post review of the Executive's targeting determinations is unsatisfactory for obvious reasons. The strategy assumes that the target would be alive to bring such a challenge or that a next friend would be able to bring an unmooted claim. (48) Certainly, the adequacy of an ex ante approach has been directly called into question by Nasser al-Aulaqi's failure to obtain standing to challenge his son's targeting in 2010. Although whether the approach proves entirely unavailing ex post, in the wake of the target's death, remains to be seen, (49) under Judge Bates's interpretation of the political question doctrine, the "vanishingly small" role that civil action offers the judiciary appears to vanish to nothing.

2. Trial in Absentia

A full trial stands in dramatic contrast to ex post review and its minimal protections. Although commencing a capital trial against an absent defendant has no basis in the common law tradition, (50) the idea of trying prospective targets in absentia in the United States has gained some traction as the most rigorous possible form of pre-targeting review. (51)

But the idea has also been panned as "wildly impracticable" (52) and "time-wasting." (53) It is not merely that a full trial implicates all of the concerns that have long buttressed arguments for trying terrorists through military tribunals rather than in civilian courts. (54) Trials conducted in absentia have the added distinction of forcing the government to build a court case against a defendant who has yet to be successfully apprehended. (55) This magnifies the problems associated with a normal federal trial, which involves everything from a civilian grand jury to a standard of proof beyond a reasonable doubt.

The national security concerns that arise out of a public trial suggest that the court should be permitted to assess the evidence in camera. (56) This model offers the accused important procedural protections like notice, but otherwise suffers all of the problems I attribute to secret killing courts.

3. A Targeted Killing Court

Commentators have clamored around proposals for the creation of a special targeted killing court. (57) The court would exist "beyond the executive echo chamber," (58) but its accelerated, closed-door procedures would preclude many of the problems associated with normal trials.

David Byman is among those who have argued in this vein for an elaborate system of target-vetting procedures, both within the executive branch and in the form of judicial review. (59) His judicial model contains two possible prongs. A Justice Department official insulated from the executive branch could vet the secret intelligence used to identify targets. (60) Additionally, the Chief Justice of the Supreme Court could create a court "capable of rapid action if necessary," much like the FISA court, which is authorized under the Foreign Intelligence Surveillance Act to conduct ex parte review of the government's wiretapping requests. (61)

In theory, establishing a special court to review targeting determinations is a logical compromise between no trial and full trial. By giving the judiciary the power to substantively assess whether lethal force against a particular citizen is well founded, the court would offer prospective targets the benefits of ex ante, case-by-case review and ostensibly serve as a major check on the Executive's use of lethal force. But a closer examination reveals that a secret killing court is the worst of both worlds: it affords the prospective target insufficient protections while limiting the judiciary to discharging a responsibility that falls outside of its purview.

On the first point, a secret killing court would be subject to all of the criticisms levied at the FISA court, whose closed doors and sealed records make for an inscrutable process by which government requests for surveillance warrants are granted seemingly as a matter of course. (62) In the targeting realm, however, this opacity would translate into due process denial: ex parte court proceedings shrouded in secrecy would preclude an accused terrorist from laying claim to the opportunity to contribute to the decision that may lead to his killing. (63)

For example, the Obama Administration refused to concede Awlaki was a target even when moving to dismiss the lawsuit filed by Awlaki's father. This secrecy rendered impracticable the two avenues of redress that Judge Bates suggested were available to a target willing to challenge his placement on the government's kill list: peacefully surrendering to an embassy, in which case the government would be barred from killing him as a matter of domestic and international law, (64) or challenging his placement on the target list using videoconferencing technology. (65) Both "solutions" to the standing problem are illusory for targets as a general matter because they require the target to be aware of his target status. (66) Although that information was leaked in the high-profile case of this particular radical cleric, neither option is clearly available to future citizen-targets so long as the Executive is permitted to formally keep its kill list a secret, and in the secret court context, submit its evidence for review strictly in camera.

In 2008, former federal judge and then-Attorney General Michael Mukasey summed up further problems with leaving difficult national security decisions to the judiciary: "Judges decide particular cases, and they are limited to the evidence and the legal arguments presented in those cases. They have no independent way, or indeed authority, to find facts on their own, and they are generally limited by the parties' presentations of background information and expert testimony." (67) These limitations would be a special curse in ex parte killing-court proceedings. The judiciary would be left without a meaningful avenue for questioning the reliability or accuracy of the government's evidence. Indeed, such questioning is already difficult in detainment cases where the terror suspect is present and equipped with a defense team. (68) Even if counsel were appointed to represent the absent defendant, (69) as in a public trial in absentia, it is unclear what value this would add in the way of challenging the government's narrative. The court's role would necessarily be limited to analyzing whether, given the Executive's presentation of its case, the prospective target poses enough of a national security threat to warrant execution.

The great irony of such a system is that it would amount to assigning the judiciary a task over which the Executive rightfully has exclusive domain. The system would thereby undermine, not promote, the proper balance of powers. (70) For despite insisting on some amount of judicially enforced protection against government interference with fundamental individual liberties, (71) the courts have also recognized the need for judicial restraint when it comes to substantively reviewing the content of the Executive's national security assessments. (72) The courts have likewise deferred to the Executive's legal and policy arguments in cases that turn on evaluating foreign intelligence. (73)

The judiciary's longstanding tradition of declining to review the Executive's assessments of what constitutes a national security threat presents a formidable challenge to any proposal that places the substance of target status determinations in the hands of the courts. Although this Note will argue that courts have a critical role to play in negotiating the line between national security and individual rights, in the targeting context, that role properly takes the form of procedural, not substantive, appraisals of when due process has been denied.

II. A BRIEF HISTORY OF OUTLAWRY

The practice of outlawry has been wrongly equated with the denial of due process. But characterizing outlawry as a lawless edict unilaterally imposed by the king--"hang[ing] someone out to dry by decree" (74)--Overlooks the evolution and centuries-long use of outlawry as a court-issued legal judgment.

In this Part, I explore outlawry as a mechanism for administering justice to untried fugitives at English common law, in the American colonies, and in the individual states. I do not argue that outlawry was consistently fair in practice; rather, I seek to show that at various points in history its legal validity as a court-issued judgment was predicated on the observation of compelling procedural principles. The evidence suggests that, in its best form, outlawry does not amount to punishment at the cost of process--its lawful use requires due process. (75)

A. Theory and Procedure at English Common Law

Historically, to be declared an outlaw was to be cast outside the law's protection. (76) Among the oldest of weapons at English common law, outlawry was a legal remedy that conditioned the accused felon's rights on his willingness to submit himself to the law. (77) A fugitive of justice who denied the law's authority was in turn denied the law's protections with respect to both his property and physical person. (78)

In its oldest forms, outlawry was the harshest of judgments. Before the Conquest, no one could be held responsible for injuring or killing an outlaw. (79) This was because the fugitive's flight constituted an act of war: "He who breaks the law has gone to war with the community; the community goes to war with him." (80) Under this logic, an individual "rebelli[ng] against the organic law of the state ... certainly cannot complain if those who are intrusted with the maintenance of the social order and welfare declare that he has forfeited the benefits and privileges of the law to which he refuses to submit." (81)

Two practical factors explain the severity of outlawry in the later Anglo-Saxon period: the challenges of obtaining specific evidence of the offense in question, and the difficulties associated with compelling accused and suspected persons to submit themselves to the legal process. (82) Frederick Pollock and Frederic Maitland also noted that in England, outlawry was originally reserved for the worst crimes. (83) As outlawry ceased to be punishment and was reduced to mere process, it was extended, and eventually restricted, to minor offenses. (84)

This distinction between outlawry as punishment and outlawry as process is a critical one, and useful for assessing what aspects of outlawry would prove effective in the modern counterterrorism context. Outlawry as a judgment for capital crimes was fundamentally different in form and function from outlawry against parties to lesser crimes and civil actions. (85) In misdemeanor cases, outlawry was a sanction for contempt of court, and in civil cases, it was primarily a means for compelling court appearance; in neither instance did the judgment of outlawry itself function as a conviction. (86) In cases of treason or felony, however, outlawry was a substantive punishment for criminals who fled judgment, particularly for those who displayed violent resistance to the legal process or persistent contempt of court. (87) Their flight amounted to a confession of guilt for the crime charged, and in their absence they were outlawed and subject to execution without trial. (88) He who was outlawed on a capital crime or sentenced to death was also instantly "attainted"--the effects of which included corruption of the blood as well as forfeiture of estate. (89)

As all punishment and no process, early outlawry presented great potential for misuse. (90) The passage of the Magna Carta in 1225 did not instantly transform outlawry into a fair or consistently effective practice, (91) but it ushered in a new era of judicial outlawry by providing that a person could be outlawed only by the lawful judgment of his peers or by the "law of the land." (92) The due process norms embodied in the "law of the land" provision were "designed to secure the subject against the arbitrary action of the crown and place him under the protection of the law." (93) As a formal stripping of the right to this process, a judgment of outlawry could henceforth be lawfully rendered by a court only in accordance with established judicial procedures.

English outlawry proceedings varied according to place and time period, but they generally involved certain basic procedural prerequisites: charges, notice, successive summonses, and the suspect's repeated failures to appear. Before Bracton's time in the thirteenth century, outlawry proceedings began with either the indictment of the accused felon or an "appeal" brought by an aggrieved party. (94) If the accused did not appear before the King's justices upon indictment, the justices would assess evidence of his guilt and accordingly direct that he be "exacted" and outlawed. (95) The appealed individual was required to appear in county court to avoid a similar fate. (96)

The exacting process required a court to issue a writ of capias ad respondendum in the county where the prosecution commenced, instructing the sheriff to take the individual into custody. (97) If the accused was not found in the jurisdiction, the court would issue a writ of exigifacias, requiring the sheriff to summon the accused at five successive court proceedings. (98) Under thirteenth-century law, no man could be declared an outlaw until he was demanded at five successive county courts. (99)

Changes to outlawry proceedings over time suggest some sensitivity to outlawry's fairness as a legal judgment. For example, murder, arson, rape, maiming, and larceny were among the thirteenth-century felonies that warranted outlawry and execution. (100) But in response to the increasing use of common law imprisonment in the case of misdemeanors, a 1295 statute stipulated that private citizens could not kill prison escapees as presumptive outlaws, (101) signaling an interest in meting out punishment proportionate to the underlying crime. By the fourteenth century, no longer were private citizens permitted to kill the outlaw upon sight. (102) During the fifteenth century, provisions dictating wider promulgation of the indictment were designed to give the suspect sufficient notice and opportunity to appear. (103)

That a judgment of outlawry was subject to challenge and reversal is perhaps the most powerful evidence of meaningful limits on its lawful use. For example, in the famous 1234 case of Hubert de Burgh, the prison escapee was declared a rebel by the King but had his outlawry declared null on the grounds that he had been neither indicted nor appealed. (104) In general, the severity of outlawry as a punishment and the potential for its abuse "always inclined the Courts to strain every point in favour of the applicant" seeking a reversal of outlawry. (105) For instance, the fact that the defendant was outlawed while outside the country and therefore deprived of notice was a ground for finding error. (106) A sixteenth-century statute took away this ground in cases of treason, but compensated for the deprivation with a one-year grace period during which time the outlaw could surrender, reverse the judgment, and reclaim his right to trial. (107)

In 1879, the Commissioners' Report on the Criminal Code Bill concluded that outlawry had been effectively superseded by extradition and should be abolished. (108) In 1901, Sir Henry Erle Richards penned a plea for the resurrection of the obsolete but still-legitimate practice of outlawry as the only viable means for bringing fugitives accused of high treason to justice where extradition treaties failed. (109)

B. Judicial Outlawry in the American Colonies and the Individual States

As noted by the Second Circuit a century after the fact, outlawry was exported from England to the American colonies with some vigor. (110) Outlawry enjoyed protracted existence, and rare use, (111) as a weapon of last resort against fugitives in the United States well into the twentieth century. The practice of outlawry in Pennsylvania and North Carolina, among the last states to retain outlawry as a legal sanction, (112) helps illustrate its adaptation for use by a three-branch republic.

A judgment of outlawry in colonial Pennsylvania amounted to a conviction and sentence. (113) If a person indicted of any one of several specified offenses either did not appear in court to answer the indictment or escaped before trial, the indictment was removed to the state supreme court. (114) If the person failed to appear for trial, the court could outlaw him and declare him attainted of the crime for which he was indicted, which had the legal effect of a verdict. (115) A fugitive indicted and outlawed for treason or other specified crimes could be lawfully executed. (116) The execution was not conducted by just any vigilante; it was rather the duty of the President of the Pennsylvania Supreme Executive Council to see that a warrant for execution was carried out. (117)

The Executive Council President's refusal to carry out one such warrant in in 1784 set the stage for a major commonwealth controversy. From 1782 through 1784, the Pennsylvania Supreme Court had instituted outlawry proceedings against seventeen members and associates of the Doan family for criminal activities related to aiding the British during the Revolutionary War. (118) Described as the terrorists of their time, (119) the Doans persisted in intimidating any county citizen who attempted to assist their capture. (120)

In 1784, when Aaron Doan was captured, the Pennsylvania Supreme Court issued a death sentence against him despite the efforts of Doan's attorneys to reverse his outlawry. (121) When Executive Council President Dickinson questioned the legality of using outlawry proceedings to deny Doan a jury trial and refused to carry out the warrant for Doan's execution, (122) the supreme court determined that outlawry in general and its application to Doan in particular did not violate the state constitution. (123) Conviction by way of outlawry did not constitute the state depriving the fugitive of a jury trial; the fugitive had denied himself that right by refusing to submit to the proper authorities. (124)

Dickinson remained free to exercise executive prerogative to pardon Doan or grant him reprieve; the legislature could also abolish the use of outlawry in future cases. (125) But the court found that separation-of-powers principles prohibited the court itself from acquiescing to executive pressure by changing the law or refusing to properly apply it to Doan. (126)

In the targeted killing context, the pressures are, of course, reversed: unrestrained executive power takes the form of unilaterally ordering the execution of the accused without a trial rather than impeding it. But the case still provides a useful example of a court's ability to assess the legitimacy of an individual's outlaw status independently and irrespective of the Executive's preferences. According to one scholar, the Doan case allowed for the emergence of "a clearer appreciation and articulation of the separation of powers doctrine" in Pennsylvania in the aftermath of the Revolutionary War. (127)

North Carolina was the last state to declare a fugitive from justice an outlaw executable upon sight. (128) The state statute "empowered and required" judges who received information that a person had committed a felony and had evaded arrest and service of "the usual processes of law" to issue a proclamation demanding the fugitive's surrender. (129) In contrast with outlawry proceedings in Pennsylvania, which charged the Executive Council President with enforcing a warrant for an outlaw's execution, the North Carolina statute enabled private citizens to seek out the outlaw and kill him if he persisted in resisting surrender. (130)

The law was put into practice well into the twentieth century. In 1960, escaped prison inmate Robert Tyson, wanted for murder and rape, was formally outlawed. He committed suicide before he could be captured. (131) In 1962, a court declared Jack Harvey Davis an outlaw after he sawed his way out of a prison cell. (132) In 1975, a superior court judge proclaimed a judgment of outlawry against Morrey Joe Campbell, who was charged with murder and assault. (133) In 1975, Arthur Parrish was outlawed in connection with a gruesome grocery store murder. (134) The criminal outlawry statute was declared unconstitutional by a federal court for specific procedural deficiencies in 1976 but was not formally repealed until 1997. (135)

C. Extrajudicial Outlawry in the United States

The many procedural safeguards upon which outlawry's lawfulness had been predicated since the time of the Magna Carta were most conspicuously discarded during the American Civil War. Extrajudicial execution in wartime resembled the brutal caricature of outlawry that now persists in the popular and legal imagination. The following review of its legacy in American history serves two functions: it helps explain how outlawry became so widely reviled in the modern era and offers a critical glimpse of what twenty-first century outlawry must not be--death by fiat.

According to historian Stephen Ambrose, the Union's official position during the war was that the Southern states had never successfully seceded, which meant that from the Union perspective, traditional rules of warfare did not protect Confederate soldiers. (136) Their engagement in hostilities amounted to rebellion. (137) By another account, the lack of a command presence in states like Missouri meant that the Confederate forces in those regions consisted of guerrilla bands waging "independent war" against the Union, (138) which helped Union leaders justify a practice of immediate execution of those civilians suspected of involvement in hostilities. (139) Volatile battle conditions undermined the formation of any consistent military policy, but the Union stance was clear in one respect: as outlaws, active guerrillas were to be regularly executed when captured in arms rather than taken alive as prisoners of war. (140)

Pursuant to orders promulgated during the Civil War by President Lincoln's first General-in-Chief, Henry Halleck, extrajudicial outlawry was used to justify the execution of Confederate guerrillas even when capture was feasible or the guerrillas were willing to surrender. (141) In an 1862 order, General Halleck declared that "every man who enlists in [a guerrilla band], forfeits his life and becomes an outlaw." (142) It was left to the field officers to distinguish the outlaw from the noncombatant. (143) The soldiers' recurring attempts to justify the Union's policy of executing captured Confederates, who in Missouri were little more than civilians in arms, suggest lurking doubts as to the policy's moral and legal legitimacy. (144)

The end of the Civil War heralded the American movement toward actively abolishing outlawry. (145) The Virginia legislature repealed the state's outlawry statutes, (146) the Alabama Supreme Court declared the judgment of outlawry repugnant to the state constitution, (147) and Texas used the declaration of rights in its new constitution to prohibit outlawry permanently. (148)

But the uncomfortable legacy of Civil War outlawry includes a significant historical twist. The same General Halleck who promulgated the orders upon which Confederate guerrillas were killed as outlaws--without the involvement of the courts-eventually commissioned legal scholar Francis Lieber to write a uniform set of instructions for the conduct of soldiers in the field and the treatment of civilian guerrillas. (149) The result was the enormously influential Lieber Code, signed by Abraham Lincoln as the first modern codification of the laws of war, (150) and which later shaped the Hague and Geneva Conventions. (151) The Code included a ban on outlawry in times of both war and peace, and it helped set the weight of moral law against outlawry by characterizing the practice as fundamentally inhumane:
   The law of war does not allow proclaiming either an individual
   belonging to the hostile army, or a citizen, or a subject of the
   hostile government, an outlaw, who may be slain without trial by
   any captor, any more than the modern law of peace allows such
   intentional outlawry; on the contrary, it abhors such outrage.
   (152)


I argue this prohibition on outlawry should be understood in the context of the extrajudicial outlawry that likely helped inspire it--that is, as a response to the Union's dubious policy of treating captured civilians suspected of hostilities as outlaws subject to extrajudicial execution. Put differently, the ban on outlawry enshrined in the Lieber Code and adopted by so many international conventions should be construed not as a ban on the court-issued outlawry that emerged after centuries of evolving English practice, but instead as an uncontroversial ban on extrajudicial assassination and other practices that can be severed from outlawry.

III. THE CASE FOR OUTLAWRY-BASED TARGETED KILLING

The extrajudicial outlawry that was employed during the Civil War and formed a basis for later international bans on outlawry is clearly not the kind of outlawry that this Note proposes to revive. As Part II explained, outlawry saw evolution before obsolescence. Through formal charges, notice, successive summonses, and provisions for surrender, outlawry became a mechanism for administering a unique blend of process and punishment: no process in excess of what the accused needed to choose whether to submit to the law, and no punishment in excess of what would have been warranted by his legal conviction. This Part will argue that this is the proper formula for judicial review in the targeted killing context.

In declining to rule on the merits of Awlaki's prospective killing, Judge Bates acknowledged the uncomfortable implications of all sides of the targeted killing debate. Taken together, these concerns suggest the appeal of developing a coherent procedural framework that permits but delimits the Executive's use of lethal force against alleged citizen-terrorists in an age of nontraditional and possibly infinite war. Using the "perplexing[] questions" (153) that Judge Bates raises but does not answer in his decision as a framing device, this Part makes a three-part argument for employing outlawry principles to construct that much-needed framework of limited judicial review.

A. Outlawry Provides Properly Limited Judicial Process in the Form of Access to the Courts
   Can the Executive order the assassination of a U.S. citizen without
   first affording him any form of judicial process whatsoever, based
   on the mere assertion that he is a dangerous member of a terrorist
   organization? How can the courts ... make real-time assessments of
   the nature and severity of alleged threats to national security,
   determine the imminence of those threats, weigh the benefits and
   costs of possible diplomatic and military responses, and ultimately
   decide whether, and under what circumstances, the use of military
   force against such threats is justified? (154)


At a conceptual level, modern-day outlawry proceedings amount to an uncommonly straightforward death-eligibility process. In a departure from the legal norm, the death eligibility of the prospective target would turn not on his proven guilt but instead on his apparent recalcitrance, as evidenced by his failure to respond to the measures taken by each of the three branches. As a threshold matter, Congress would need to craft the outlawing process. In the case of a particular prospective target, the Executive could then initiate the process, while the courts would be charged with ensuring adherence to the process.

In more concrete terms, under an outlawry statute, the Executive would be able to exercise its traditional prosecutorial discretion in deciding whether and when to bring a special category of charges against suspected citizen-terrorists. (155) Once the government has fulfilled, at minimum, the procedural protections outlined in Part V, infra, a suspect's failure to submit himself to legal authorities would empower a court to issue a judgment of outlawry against him.

Meanwhile, the judiciary would hold the power to declare a citizen an "outlaw" based on a procedural definition of a legitimate target of lethal force: a suspect who refuses to submit to the legal process, as defined by a set of procedural requisites specified under statute, or perhaps left to the courts' design. This form of judicial review is most notable for what it would not involve: outlawry proceedings would not compel the judiciary to make real-time assessments of the threat posed by individual targets, to determine when the use of military force against such threats is justified, or to demand from the Executive comprehensive proof that use of lethal force is warranted.

From a civil libertarian viewpoint, a defining feature of outlawry proceedings might be the constructive preservation of the choice of legal process. Outlawry would avoid rubber-stamping the Executive's targeted killing decisions by forcing the Executive to observe a number of critical basics, like issuing notice and formal charges. The target would be thereby afforded a role in precluding his own killing, and the target and the public provided some basis for alleging trumped-up charges of terrorist involvement.

Concedely, outlawry offers the prospective target highly circumscribed protections. Not trial, but the right to trial. (156) Not individualized notice, but centralized notice. (157) Not express waiver, but implied waiver. (158) As such, outlawry is unlikely to actually fully satisfy the civil libertarians, and is vulnerable to a criticism made of counterterrorism laws more generally: guilty of providing "too narrow a band of remedies focused on process." (159)

But the narrow focus on process under outlawry law is appropriate given the judiciary's characteristically modest role in reviewing the other branches' exercise of power when it comes to national security issues. (160) After surveying two centuries of case law, Professors Samuel Issacharoff and Richard Pildes conclude that "the courts have developed a process-based, institutionally-oriented (as opposed to rights oriented) framework for examining the legality of governmental action in extreme security contexts." (161) They further explained: "The American courts have neither endorsed unilateral executive authority nor taken it as their role to define directly the substantive content of rights in these contexts." (162) Instead, the courts have focused on ensuring "that the right institutional process supports the tradeoff between liberty and security at issue." (163)

This view lays the bricks for interpreting the judiciary's narrow process focus as outlawry's great strength. Outlawry posits that in the targeting context, the right institutional process for striking a balance between liberty and security is one that resists either being hostage to the suspect's unwillingness to participate, or giving in to the Executive's claim to unilateral power. The right process turns instead on the conditional authorization of lethal force from all three branches of government. From an institution-oriented perspective, outlawry principles derive their primary value not from the substance of the protections afforded the prospective target, but from the trilateral institutional endorsement required for a legitimate targeted killing.

B. Outlawry Brings Targeted Killing in Line with Other Government Counterterrorism Operations Subject to Limited Judicial Review
   How is it that judicial approval is required when the United States
   decides to target a U.S. citizen overseas for electronic
   surveillance, but that ... judicial scrutiny is prohibited when the
   United States decides to target a U.S. citizen overseas for death?
   (164)


When understood as one piece in a multifaceted counterterrorism strategy, unilateral executive killing power is not a mere anomaly. It is incompatible with the existing regime of limited judicial review of the government's counterterrorism activities. (165) In this Section, I examine judicial review in the context of wiretapping and detainment to show that outlawry appropriately offers prospective targets of lethal force more robust protection.

Like judicial review in the context of secret surveillance, execution upon outlawry requires that a court issue authorization ex ante, and further, only upon the individual's failure to submit to the legal process. But like judicial review in the context of detention, outlawry proceedings are adversarial and present the individual the opportunity to refute the charges against him in court.

I. Judicial Review in the Context of Wiretapping

Judicial review of secret government surveillance requests takes place ex ante and ex parte. To intercept the communications of a citizen or permanent resident abroad, the government must submit an application for a surveillance warrant before a judge of the secret court established by the Foreign Intelligence Surveillance Act (FISA). (166) The FISA court grants the application if there is probable cause to believe that one of the parties to the communication in question is a foreign power or agent thereof, and that the targeted location of surveillance is to be used by the foreign power or an agent of the foreign power. (167) The Attorney General may authorize a wiretap in an emergency without obtaining authorization from the court, provided he submits an application within seven days. (168)

The FISA court approves the vast majority of applications it receives, (169) which has yielded two opposing interpretations of the robustness of the process. (170) On the one hand, it has been argued that the court acts as a rubber stamp on the Executive's requests for intrusive surveillance warrants. (171) On the other hand, it may be that a rigorous process of internal executive review ensures that a carefully winnowed crop of well-founded requests reaches the court. (172)

In either case, a statute that forces the government to move for a judgment of outlawry would allow for a more rigorous form of judicial review than would ex parte FISA proceedings. Such a system would not only place the courts in a position to authorize the outlawry and execution of a fugitive terrorist, but also offer the courts a list of objective parameters for assessing whether the accused has been afforded a meaningful opportunity to respond to the government's charges.

2. Judicial Review in the Context of Detainment

A counterintuitive consequence of the current lack of judicial check on the government's targeted killing strategy is that the government can kill any alleged terrorist with impunity, citizenship notwithstanding, but is restricted in its ability to detain him. Perversely, as long as premeditated lethal force has no legal consequences, while detainment poses legal complications, the government has an incentive to treat the elimination of suspected terrorists as the less messy alternative. (173) The government has issued statements that suggest a policy of heightened caution about the use of lethal force against citizens, but that caution is entirely at the President's discretion and hardly reassuring to the misidentified target.

By requiring formal charges and judicial authorization before the government may kill a target, outlawry offers to repair the perverse asymmetry between reviewable detention and unreviewable use of lethal force. Outlawry notably also provides ex ante protections, which preclude the problems that stem from attempts to model targeted killing procedures too closely upon ex post judicial review of detention decisions. (174)

C. Outlawry Provides Coherent Principles for Legitimating and Limiting the Government's Use of Lethal Force
   Can a U.S. citizen-himself or through another-use the U.S. judicial
   system to vindicate his constitutional rights while simultaneously
   evading U.S. law enforcement authorities, calling for "jihad
   against the West," and engaging in operational planning for an
   organization that has already carried out numerous terrorist
   attacks against the United States? (175)


Striking a balance between process and punishment, outlawry guarantees prospective targets important protections without categorically eliminating any of the government's options for dealing with suspected terrorists who refuse to acknowledge their own legal sovereign. Outlawry should thus appeal to those who have argued the fundamental injustice of banning the use of lethal force against terrorist leaders. Such a ban selectively grants terrorists the very procedural protections that are denied as a matter of course to their law-abiding, uniformed counterparts on the battlefield, who are unequivocally legitimate targets under the laws of war. (176) It thus amounts to "rewarding" terrorists who resort to hiding among civilian populations and who in other ways defy domestic and international laws. (177)

Outlawry offers a disciplined means of dismantling this distorted incentive structure. The accused citizen-terrorist must choose between submitting to the legal process and flouting it. The terrorist-in-hiding who has chosen to flout the law is subject to the same lethal consequences of donning an enemy uniform on a battlefield. (178)

Yet outlawry's use need not facilitate the unbridled expansion of government power. In this sense, an outlawry-based approach to targeting policy contrasts sharply with the government's piecemeal and unrestrained approach to justifying its killing program. For instance, in a recent speech, John Brennan, the President's top counterterrorism adviser, cited the nontraditional nature of the war against Al Qaeda--as manifested, for example, in the fact that terrorists avoid uniform--as justification for the government's adoption of an expansive definition of "imminence" to assess terror threats. (179) But Brennan made no mention of the other side of the coin: the difficulties associated with correctly identifying a terrorist who has avoided the conventional markers of combatant activity, and whether the United States must take extra precautions to ensure that its attacks are directed strictly at hostile forces. (180)

Outlawry, meanwhile, is a dual-use framework that not only permits but just as importantly restricts the Executive's use of lethal force against its citizens. (181) The resulting balance between process and punishment is key to outlawry's constitutionality, as the next Part explains.
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Title Annotation:Introduction through III. The Case for Outlawry-Based Targeted Killing, p. 724-759
Author:Chong, Jane Y.
Publication:Yale Law Journal
Date:Dec 1, 2012
Words:8473
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