Targeting the twenty-first century outlaw.
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.
A. 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.
B. 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 defendant could lose the right to be present at his own trial through his disruptive behavior. (213) The Allen Court's ruling was motivated in part by its rejection of the idea that "the accused be permitted by his disruptive conduct indefinitely to avoid being tried on the charges brought against him." (214) In Taylor v. United States, (215) the Court extended the theory of the constructive waiver by holding that a defendant had effectively waived his right to be present at trial by fleeing from noncapital charges after trial had commenced. In so ruling, the Court found it "wholly incredible" that the defendant did not know the trial would continue in his absence. (216)
The Court, on the other hand, has declined to permit trials to proceed when the defendant is absent from the start, based on the heightened risk that the defendant has not made a "knowing and voluntary waiver of the right to be present." (217) But one commentator has argued for eliminating the "talismanic significance" ascribed to the commencement of trial. (218) The reasoning is simple: "A defendant who is informed that his trial will be held at a certain time and place and declines an invitation to participate would seem to have little standing to complain." (219) This is the very logic implicit in the claim that Awlaki should have been granted a full trial in absentia.
Outlawry takes this logic a step further. An alleged citizen-terrorist whose status as an outlaw is well promulgated worldwide could be presumed to know that his refusal to surrender to authorities would cost him the benefit of a trial. Additionally, interpreting the outlaw's refusal to appear for trial as a constructive waiver of his right to trial accords with the logic of Allen and Taylor in that it prevents the putative defendant from indefinitely escaping the sentence for which he would have been eligible under a guilty verdict. The costs of indefinite escape are too high in the case of an alleged terrorist intent on waging war against the state as a fugitive at large.
Importantly, the defendant's mere absence in response to a summons would not be interpreted as a waiver of his due process rights. The waiver would instead be predicated on the satisfaction of rigorous notice requirements and other procedural precautions designed to secure corroboration of the intent to waive. (220)
A last possible objection to the constitutionality of outlawry requires close analysis of the meaning of the Article I Bill of Attainder Clause (221) and the Article III Attainder of Treason Clause. (222) Although attainder was once the immediate effect of a judgment of outlawry, so too was attainder the "inseparable consequence" of a death sentence. (223) Yet capital punishment has remained alive and well in the United States without implicating attainder. If resurrected, outlawry promises the same.
For most of the twentieth century, the Supreme Court defined an Article I bill of attainder as a law that (1) imposes punishment (2) on specific individuals (3) without a judicial trial. (224) In recent years, litigants have made expansive use of the prohibition--to bring habeas petitions, to invalidate regulatory schemes, and to challenge a state constitutional amendment banning same-sex marriage. (225) Most recently, death warrants issued by the Executive have been described as bills of attainder. (226) On July 18, 2012, the American Civil Liberties Union and the Center for Constitutional Rights invoked the Article I provision in their lawsuit for the wrongful deaths of Awlaki, Samir Khan, and Awlaki's teenaged son. (227)
But, broadly speaking, the Executive's current targeted killing policy does not implicate bills of attainder. Article I is devoted to prescribing limits on Congress's powers. (228) Former Chief Justice William Rehnquist has described a bill of attainder as a "precise legal term" that refers to "a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial." (229)
Irrespective of whether an Executive-issued death warrant constitutes a bill of attainder, an outlawry statute decidedly does not. Bills of attainder were repugnant to the Founders because they amounted to the legislature--or, under the death warrant theory, the President--usurping the courts' role in judging an individual's guilt and determining the appropriate punishment. (230) A federal statute that permits the courts alone to issue a judgment of outlawry and an execution sentence in any individual case would involve no such usurpation. (231)
The Attainder of Treason Clause would seem more likely to pose problems for court-issued outlawry proceedings where the terrorist act is categorized as a crime of treason, since it is located in Article III, which lays out the scope of judicial power. The provision states: "The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted." But as emphasized by Edward Everett in 1864, the Article III provision merely prohibits the effect of an attainder of treason. (232) For instance, the "essence of attainder" was the corruption of the blood, which punished the felon's innocent relatives into perpetuity. (233) Establishing varied forms of punishment for treason, meanwhile, was well within the legislature's powers. Everett observed, "Congress may impose the penalty of fine, or imprisonment, or outlawry, or banishment, or forfeiture, or death, or of death and forfeiture of property, personal and real." (234)
V. UPDATING OUTLAWRY
As discussed in the previous Part, nothing in the Constitution precludes the modern resurrection of outlawry so long as the punitive qualities of the practice are properly balanced with process. This Part uses the theoretical principles underlying outlawry to hammer out specific conditions that must be met for outlawry proceedings to serve as a legitimate check on the Executive's use of lethal force. It then discusses how the practice of outlawry could be adjusted to meet certain legal and practical concerns important to its modern viability.
A. An Approach to Procedural Sufficiency
History makes clear that the outlawry proceedings are not fair and effective simply by virtue of involving the courts. The proceedings must be designed to punish the fugitive in flight only after satisfactory efforts have been made to compel his appearance. Failure to put this tenet into practice would undermine the legitimacy of a modern outlawry regime.
Outlawry law in North Carolina featured significant departures from these common law ideals and offers a helpful sketch of the deficiencies that modern outlawry must avoid. In 2976, a federal district court held that North Carolina's outlawry statute was unconstitutional because it was procedurally deficient under the Due Process Clause of the Fourteenth Amendment in four respects. (235) First, it did not require a probable cause determination by a neutral judicial officer. (236) Second, the statute did not require an arrest warrant or grand jury indictment. (237) Third, the statute did not require an arrest warrant or other process to be served and returned, showing that the accused was not to be found within the jurisdiction. (238) Finally, the outlawry proclamation was issued ex parte and did not require notice and an opportunity for the fleeing felon to be heard. (239)
In short, the court enumerated flaws not fatal to outlawry as a legal instrument. In fact, the legitimacy of outlawry at various points in English history and in early Pennsylvania was predicated on protections designed to preclude the very defects that the district court identified. A state legislature intent on preserving outlawry presumably could have tailored the statute to require a probable cause determination, an arrest warrant or indictment, good faith attempts at serving the warrant or indictment, and adequate safeguards designed to ensure notice to the prospective outlaw.
The rest of this Part travels the road not taken by the 1976 North Carolina state legislature. It borrows principles of outlawry from English common law to craft conditions under which alleged citizen-terrorists who refuse to surrender to criminal prosecution may be targeted for death. Again, as emphasized in the previous Part, outlawry proves as restrictive a theoretical framework as it is justificatory. The schema described below avoids the procedural pitfalls of North Carolina's outlawry statute, which was subject to repeated challenge in the 1970s for reasons related to probable cause, notice, cruel and unusual punishment, and arbitrary application. (240)
B. Necessary Conditions for Lawful Modern Outlawry
1. Congressional Authorization
Congress must pass a law to authorize the use of lethal force against terror suspects deemed outlaws. The statute could spell out the processes by which a court may issue a judgment of outlawry, or leave the specifics of their formulation to the judiciary. (241) A practical option might be the creation of a court specially designated to carry out outlawry proceedings. The relative infrequency with which the government expects to outlaw and execute Americans could also make it more efficient to relegate the proceedings to the D.C. courts.
The legitimacy of a modern outlawry statute would turn in part on how narrowly outlawry-eligible crimes are defined. Recall that at common law, an outlaw could be executed upon a judgment of outlawry on the theory that the outlawry in criminal proceedings amounted to a conviction for the underlying crime. (242) A modern statute must require that a fleeing felon be outlawed only for clearly defined capital crimes. Further, modern outlawry would ideally be reserved for alleged terrorists charged with serious and specific crimes against the United States. In eighteenth-century New York, for instance, outlawry was eventually abolished except for use against fugitives indicted for or convicted of treason. (243) A similar guiding principle would help establish outlawry as an exceptional weapon of last resort.
Like any other category of crime, terrorist acts can be differentiated according to their capital nature; they need not be hazy and ill-defined. For example, under the federal statute 18 U.S.C. [section] 2339A, which concerns the provision of material support to terrorists, the maximum penalty is fifteen years in prison unless the activity has resulted in a death. (244) On the other hand, the definition of enemy combatant offered by the Combatant Status Review Tribunal under the George W. Bush Administration features exactly the kind of open-ended language that a statute laying out outlawry-eligible crimes must avoid. (245)
2. Formal Charges
The Obama Administration never initiated prosecution against Awlaki for terrorism. A judgment of outlawry, however, derives its legitimacy from the fugitive's refusal to submit to formal charges.
Requiring the Executive to articulate the conduct that warrants a suspect's status as a death-eligible target serves two important functions. First, it provides the target with a clear statement of his alleged crimes, which he may then choose to repudiate. Second, it keeps the public informed as to what kinds of conduct warrant the targeting of a citizen--information to which every citizen, as a potential target, is entitled.
The facts of the Awlaki case demonstrate the advantages of restricting the use of lethal force to those whose crimes the government is able to articulate and whose ties to designated terrorist groups are well defined. Awlaki used technology to agitate for war. But the question that lingers in the wake of his death is whether and which of his activities made him a legitimate target of lethal force. The Obama Administration claims that Awlaki was an external operations leader who, among other things, directed the 2009 Christmas Day plot to blow up a plane bound for Detroit. (246) But by some reports, Awlaki was merely the confirmed voice and radicalizing force behind an enormous body of work that includes calls for terrorism against the United States. (247) Some scholars have pointed to the lack of available evidence establishing that Awlaki was more than an influential recruiter and motivational force for Al Qaeda in the Arabian Peninsula. (248) Still others have questioned Al Qaeda in the Arabian Peninsula's status as an Al Qaeda "co-belligerent," and whether force against Awlaki was accordingly authorized under the Authorization for Use of Military Force. (249)
As a practical matter, the government should be able to charge alleged terrorists without presenting sensitive intelligence to a civilian grand jury. (250) To file any charges that could lead to the outlawing of the suspect, the government should be forced to meet the standard required of a grand jury indictment--a preponderance of the evidence--before a judge in camera. Here it might be useful to consider the process by which the State Department presently makes formal foreign terrorist organization (FTO) designations. After identifying a prospective FTO, the Bureau of Counterterrorism compiles an administrative record that includes classified information establishing that the statutory requirements for the designation have been satisfied. (251) In outlawry proceedings, such a record would be subject to judicial review.
To avoid being outlawed, the accused could be given a deadline by which to respond to the charges, instead of being granted successive opportunities to appear as part of an elaborate exacting process. Once outlawed, he could then be given a window within which to appeal. For example, by law, an FTO may seek judicial review of its designation in the United States Court of Appeals for the D.C. Circuit within thirty days of the decision's publication in the Federal Register. (252) Similarly, an outlaw could be granted a brief grace period, during which time he is safe from targeting and may surrender unharmed.
A secret hit list has no legitimacy under outlawry principles. Notice is essential to due process, and has been, throughout history, critical to outlawry's fair function as a criminal conviction. (253)
Notice is the obvious counterpart to formal charges, which lose purpose if not communicated to the target and the public. The release of the names of citizens on the government's target list not only offers the option of surrender to the accused before and after they are outlawed, (254) but also informs those who interact with the target that they risk becoming collateral damage. In the face of a secret killing regime, on the other hand, the public is left to hope that the name of a prospective target will be leaked to the press. (255)
In his dissent in Hamdi, Justice Thomas dismissed the notion that the government need give terrorists notice and an opportunity to respond before bombing them abroad. He is not alone. (256) Such a requisite is easily caricatured, as in the following statement: "The CIA, before firing a missile, need not and should not invite Osama bin Laden or his lawyer to a hearing to contest whether he is, in fact, a committed member of Al Qaeda." (257) But I challenge this position. Offering an alleged terrorist notice every time the government plans a strike against him would of course be self-defeating. But it is far from absurd to demand that the government issue notice of a citizen's prospective and successful addition to a kill list.
Government leaks revealed Awlaki had been added to the CIA's kill list almost two years before he was successfully targeted. (258) I recognize that the government may nonetheless protest the formal release of target names as a compromise of covert operations. But this Note has taken the position that the government's refusal to identify Americans it intends to kill is an unequivocal violation of due process, a fact unchanged by the government's compelling strategic justifications for that denial.
In the age of the Internet, the logistics of providing notice should present few insurmountable hurdles even when the fugitive's whereabouts are unknown. At minimum, like organizations designated as FTOs, the names of citizens facing outlawry and, subsequently, execution should be published on a central government database, at which point global media outlets could be expected to spread the news far and wide. More creative avenues could also be worth pursuing. As Awlaki demonstrated in YouTube video after YouTube video, (259) technology can be used to incite terrorism with unprecedented efficiency. The time is ripe to explore technology's uses as another kind of conduit--a conduit for legal notice in the extraordinary counterterrorism context.
4. Reversal of Outlawry upon Surrender
As Judge Bates recognized in his decision, international and domestic law would have barred the U.S. government from authorizing Awlaki's killing had he peacefully surrendered himself to a U.S. embassy. (260) In this respect, outlawry principles reflect the sensibilities of modern jurisprudence. Because lethal force is warranted specifically when the outlaw rejects the legal system, outlawry principles demand restoration of the appropriate protections to the target who returns within the parameters of that system. (261)
A process that allows the terrorist to surrender and reclaim the right to trial ensures that trial rights are revoked only when necessary. As discussed in Section II.A, since at least the time of Edward VI, an outlaw could seek reversal if he submitted himself to the legal process within a year of the judgment. As described in Section II.B, outlawry was issued against the Doans in early Pennsylvania specifically while they terrorized the countryside. When the threat abates and the terrorist avails himself of the law, so abates the justification for use of lethal force.
Outlawry principles alone cannot resolve the practical problems that might hinder a suspect from communicating his intention to surrender. And it is not clear that the government is obliged to devote resources grossly disproportionate to the likelihood that the surrender option would be exercised in order to resolve all of these issues. But certain steps must be taken to craft sensible surrender protocol and avoid reducing the option of reversal to a sham. To start, after a court declares an American an outlaw, the government could issue a brief list of avenues of surrender and the procedures by which the fugitive could assert each option. Consider Judge Bates's suggestion that Awlaki could surrender himself to the embassy in Sana'a, a seemingly simple option complicated by the fact that hundreds of miles separate Sana'a from the mountains where Awlaki was thought to be hiding. (262) For its part, the government could have prescribed that Awlaki send a message declaring his intent to surrender in advance of his arrival at the consulate and conferred with the consulate to ensure protocols were in place both for receiving Awlaki into custody and protecting itself against duplicity.
C. Additional Considerations and Restrictions
Even with protocol for protections such as notice and surrender firmly in place, resurrecting outlawry raises concerns about opening the door to its overuse and arbitrary application. In particular, the government's already-strident targeting of noncitizen-terrorists prompts two critical questions. First, could outlawry be abused to authorize the execution of large numbers of Americans? Second, why not extend the judicial protections offered by outlawry to noncitizen targets? The answers are related. Simply put, the government must be limited to employing outlawry strictly to fight terrorism abroad. This restriction in turn complicates the attempt to extend outlawry to noncitizens.
With respect to using outlawry to declare large numbers of citizens "death-eligible," a number of checks already exist or could be specially implemented to restrict the practice. Importantly, international humanitarian law and international human rights law already restrict a state's ability to conduct a targeted killing in the territory of another state with which it is not in armed conflict. (263) To conduct drone strikes in foreign territory, the United States has relied heavily on its right to exercise self-defense, as provided under Article 51 of the United Nations Charter, (264) but the government would be unable to deploy this reasoning to outlaw and execute an American accused of a capital offense unrelated to terrorist activity. (265)
Additionally, a statutory provision that prohibits the government from outlawing Americans or executing Americans already declared outlaws on American soil would be consistent with basic principles of law enforcement. Use of lethal force is not presumptively unconstitutional in the domestic law-enforcement context (266)--as discussed in Part II, it has been condoned when necessary to effect the arrest of fleeing felons. But such use must not be premeditated, (267) which eliminates the possibility of domestic outlawry. Moreover, capture would not be strategically infeasible inside the United States in the way it is among hostile forces in foreign territory. Rather than functioning as a last resort, the use of outlawry within the United States would amount to bypassing our wholly adequate criminal justice system. (268)
Finally, this Note does not mean to suggest that citizens alone have a right to due process before being placed on the government's kill list. (269) For over a century, the Supreme Court has upheld the idea that foreign nationals living within American borders are "persons" within the meaning of the Constitution and afforded those rights that the Constitution does not expressly reserve for citizens. (270) But I discuss outlawry specifically as it applies to citizens since their fight to constitutional protections while outside the country's borders is much more clearly established than that of noncitizens abroad and in flight. (271) Also, I acknowledge that extending outlawry principles to noncitizens with no allegiance to the United States would implicate theoretical concerns and legal issues not discussed in this Note. Since outlawry is premised on the idea that the lawlessness of those properly subject to a legal system may warrant casting them outside of the system.
That said, selectively protecting Americans from the government's use of lethal force has some troubling implications from a strategic perspective to say nothing of the moral implications. Such an approach gives terrorist organizations added incentive to recruit American followers, by some accounts already an active Al Qaeda undertaking. (272) A coherent counterterrorism strategy would seem to favor establishing roughly equitable legal approaches to incapacitating citizen- and noncitizen-terrorists.
In the case of Anwar al-Awlaki, the executive branch used lethal force against an American citizen without initiating criminal prosecution ex ante or disclosing its legal justifications ex post. (273) The Obama Administration's interpretation of Awlaki's death as a legitimate military measure is disturbing in that it suggests no limits on the Executive's authority to kill as it deems appropriate in the "everywhere and forever war" (274) against terrorism. (275)
But targeted killing advocates insist that the practice is indispensable to defeating a "decentralized, free-scale terrorist network" like Al Qaeda. (276) And the institutionalization of targeted killings is well under way. (277)
According to defense officials, Predator and Reaper drone missiles are as commonplace as modern-day "cannon fire," (278) and the death toll indicates that their use is not confined to high-value foreign targets. (279) By one estimate, as of July 14, 2012, drone strikes ordered under the Obama Administration had killed a total of between 1,507 and 2,438 people in Pakistan alone, including between 148 and 309 civilians. (280)
The stakes involved in the familiar tradeoff between security and liberty are nowhere higher than in the realm of targeted killings. But this Note declines to arbitrarily fix the dividing line somewhere between no process and full due process, and call the result a solution. I argue instead for a theoretically coherent, centuries-old alternative: outlawry proceedings that compel the prospective target to make the choice that will determine the content of his due process rights. This response-contingent model of due process offers government targets the protections to which every citizen is entitled in peacetime, narrowed only as necessitated by the national security demands of an unending war.
(1.) H. Erle Richards, Is Outlawry Obsolete?, 18 LAW Q. REV. 297, 304 (1902).
(2.) See Mark Mazzetti, Eric Schmitt & Robert F. Worth, Two-Year Manhunt Led to Killing of Awlaki in Yemen, N.Y. TIMES, Sept. 30, 2011, http://www.nytimes.com/2011/10/01/world /middleeast/anwar-al-awlaki-is-killed-in-yemen.html. In contrast, Kamar Derwish, an American citizen killed well before al-Awlaki in 2002 and the object of far less scrutiny, was not a premeditated target. Erik Kain, The US Assassination of Anwar al-Awlaki and the Blurring of Bright Lines, FORBES (Sept. 30, 2011, 12:31 PM), http://www.forbes.com /sites/erikkain/2011/09/30/the-us-assassination-of-anwar-al-aw1aki-and-the-blurring-of -bright-lines.
(3.) ARCHER M. WRIGHT, OUTLINES OF LEGAL HISTORY 214 (London, Swan Sonnenschein & Co. 1895).
(4.) See infra Part II.
(5.) Mark DeWolfe Howe, The Process of Outlawry in New York: A Study of the Selective Reception of English Law, 23 CORNELL L.Q. 559, 566 (1937) (quoting Donald D. Holdoegel, Jurisdiction over Partnerships, Nonpartnership Associations, and Joint Debtors, 11 IOWA L. REV. 193, 197 (1926)). Howe focuses on the use of civil outlawry against absent joint debtors, but other authorities have flatly denied the existence of outlawry in any form in the United States. See, e.g., Harlow v. Carroll, 6 App. D.C. 128, 133 (D.C. Cir. 1895) ("There is no such thing as legal outlawry in our American jurisprudence.").
(6.) See, e.g., Tom Tiede, North Carolina Still Employs "Outlaw Law,' SARASOTA J., Aug. 13, 1975, at 7-A, http://news.google.com/newspapers?nid=1798&dat=19750813&id=lxUfAAAAIBAJ&sjid = TooEAAAAIBAJ&pg=6045,2420074.
(7.) See, e.g., Mary Bunch, Terror, Outlawry and the Experience of the Impossible, in ENGAGING TERROR: A CRITICAL AND INTERDISCIPLINARY APPROACH 112 (Jane Haig et al. eds., 2009).
(8.) See infra Part I.
(9.) Professor Larry May has recognized the right not to be arbitrarily outlawed as one of four major "legacy rights" enshrined in the Magna Carta in his work on these rights' significance for modern international law and their potential usefulness in shaping Guantanamo detention policies. See Larry May, Magna Carta, the Interstices of Procedure, and Guantanamo, 42 CASE W. RES. J. INT'L L. 91, 95 (2009) [hereinafter May, Magna Carta]. But Professor May uses the term "outlaw" primarily to refer to individuals such as refugees who have "been forced outside of the protection of the law" and analogizes states' detention policies to unlawful outlawry. LARRY MAY, GLOBAL JUSTICE AND DUE PROCESS 186 (2010) [hereinafter May, GLOBAL JUSTICE]. This Note uses "outlaw" to refer to people whom Professor May prefers to call "bandits," a category of individuals "who have voluntarily chosen to be outside of the protection and obligation of the law." Id.
(10.) This Note focuses on reconciling targeted killing with basic constitutional rights but recognizes that the lawfulness of the practice turns more broadly on the norms of customary international law, the Universal Declaration of Human Rights, and the provisions of widely ratified international treaties. See Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Addendum to Study on Targeted Killings, [paragraph] [paragraph] 28-33, U.N. Doc. A/FIRC/14/24/Add.6 (May 28, 2010) (by Philip Alston), http://www .extrajudicialexecutions.org/application/media/14%%20HRC%20Targeted%20Kilings%20 Report%20(A.HRC.14.24.Add6).pdf [hereinafter Alston Report]. The use of outlawry against noncitizens raises issues that I touch on only briefly in this Note. See infra Section V.C.
(11.) Black's Law Dictionary defines extrajudicial action as action taken "outside the functioning of the court system." BLACK'S LAW DICTIONARY 665 (9th ed. 2009). Even when understood as a form of executive action, the concept of outlawing terrorists has held intuitive appeal. Days after 9/11, when asked by a reporter whether he wanted Osama bin Laden dead, President Bush alluded to the "Wanted Dead or Alive" posters that littered the Western frontier. He later stated, "It was a little bit of bravado, but it was also an understanding that in self-defense of America,... 'Dead or Alive,' that it's legal." BOB WOODWARD, BUSH AT WAR 100-01 (2002).
(12.) Khan was not a premeditated target. Mazzetti et al., supra note 2.
(13.) Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010). The American Civil Liberties Union and the Center for Constitutional Rights brought the case on Nasser al-Aulaqi's behalf.
(14.) This is the spelling of the petitioner's surname as it appeared in the case proceedings.
(15.) Al-Aulacti, 727 F. Supp. 2d at 10-12.
(16.) Opposition to Plaintiffs Motion for Preliminary Injunction and Memorandum in Support of Defendants' Motion To Dismiss at 2-3, Al-Aulacti, 727 F. Supp. 2d 1 (No. 10-cv-1469).
(17.) See, e.g., John C. Dehn & Kevin Jon Heller, Debate, Targered Killing: The Case of Anwar al-Aulacli, 159 U. PA. L. REv. PENNUMBRA 175, ]84 (2011), http://www.pennumbra.com /debates/pdfs/Targeted_Killing.pdf (Heller, Rebuttal) (describing as "profoundly disingenuous" Judge Bates's assertion that deeming the President's individual targeting determinations unreviewable by the courts did not amount to granting the President unlimited power to kill).
(18.) Al-Aulaqi, 727 F. Supp. 2d at 18.
(19.) Jo Becker & Scott Shane, Secret 'Kill List" Proves a Test of Obama's Principles and Will, N.Y. TIMES, May 29, 2012, http://www.nytimes.com/2012/05/29/world/obamas-leadership-in -war-on-al-qaeda.html; see also JACK GOLDSMITH, POWER AND CONSTRAINT: THE ACCOUNTABLE PRESIDENCY AFTER 9/11, at x (2012) ("[I]n perhaps the most remarkable surprise of his presidency, Obama continued almost all of his predecessor's counterterrorism policies.").
(20.) A similar principle underlies the fugitive disentitlement doctrine, invoked by the courts to bar the fugitive from suing for appeal while he is in flight. See Smith v. United States, 94 U.S. 97 (1876); see also Ortega-Rodriguez v. United States, 507 U.S. 234, 242 (1993) (observing that the Supreme Court has upheld the doctrine "consistently and unequivocally").
(21.) See GABRIELLA BLUM & PHILLIP HEYMANN, LAWS, OUTLAWS AND TERRORISTS: LESSONS FROM THE WAR ON TERRORISM 145 (2010) (describing targeted killing operations as a special pressure point in the controversy over whether to treat terrorism as a crime or as war).
(22.) See David Kretzmer, Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?, 16 EUR. J. INT'L L. 171, 174, 186 (2005) (observing that the debate over the legitimacy of targeted killings reflects a more fundamental disagreement as to the applicable legal regime, and proposing a "mixed" model that incorporates elements of the law enforcement model under international human rights law (IHRL) and the armed conflict model under international htunanitarian law (IHL)). Nils Melzer has laid out criteria for lawful targeted killing under the law enforcement paradigm and the hostilities paradigm, respectively, but does not treat the distinction as fully reducible to the difference between IHRL and IHL. See Nms MELZER, TARGETED KILLING IN INTERNATIONAL LAW (2008). The law enforcement/armed conflict binary has been used to argue for and against the legitimacy of targeted killings. Compare Kenneth Anderson, Targeted Killing and Drone Warfare: How We Came To Debate Whether There Is a 'Legal Geography of War,' HOOVER INST. 4 (Apr. 2011), http://media.hoover.org/sites/default/files/documents/FutureChallenges _Anderson.pdf (stating that the law enforcement paradigm properly applies, rendering targeted killing unlawful), with Shane Reeves & Jeremy Marsh, Bin Laden and Awlaki: Lawful Targets, HARV. INT'L REV. WEB PERSP. (Oct. 26, 2011, 4:23 PM), http://hir.harvard.edu/bin-laden-and-awlaki-lawful-targets (arguing that lethal force may be used against alleged terrorists, irrespective of their citizenship, under a conventional understanding of the armed conflict paradigm).
(23.) See John Fabian Witt, The Legal Fog Between War and Peace, N.Y. TIMES, June 10, 2012, http://www.nytimes.com/2012/06/11/opinion/the-legal-fog-between-war-and-peace .html ("[O]ur arguments about targeted killings are playing out at a historic juncture in which the categories of war and peace, which the modern world thought it had carefully separated, are collapsing into each other."). See generally Noah Feldman, Choices of Law, Choices of War, 25 HARV. J.L. &PUB. POL'Y 457, 457 (2002) (arguing that the four criteria that underlie the "intuitive distinction" between crime and war demonstrate that international terrorism can be characterized as either). But it is unclear whether the binary has ever accurately reflected reality. Although it is always tempting to see the novelty in a contemporary predicament, this Note is partial to the importance of also recognizing the familiar. As early as 1943, Georg Schwarzenberger observed that thinkers have been aware of the fundamental problems with the peace/war distinction since the emergence of international law. Rejecting the assumption that peace is the norm and war an "event," Schwarzenberger argued, "[I]t is impossible to find an objective criterion which distinguishes the status of war both from the status of peace and from the status mixtus." Georg Schwarzenberger, ]us Pacis ac Belli? Prolegomena to a Sociology of International Law, 37 AM. J. INT'L L. 460, 466-68, 473 (1943). For a description of how this status mixtus affected killing practices during the Civil War, see infra text accompanying notes 136-140.
(24.) The Administration's legal obfuscation threatens to create problems that extend beyond the targeting context, and is best contrasted with Justice Thomas's dissent in Hamdi v. Rumsfeld. Despite opposing judicial protections for detainees, Justice Thomas steered clear of muddling the definition of due process: "Undeniably, Hamdi has been deprived of a serious interest, one actually protected by the Due Process Clause. Against this, however, is the Government's overriding interest in protecting the Nation." Hamdi, 542 U.S. 507, 598 (2004) (Thomas, J., dissenting).
(25.) Eric Holder, U.S. Attorney Gen., Remarks at Northwestern University School of Law (Mar. 5, 2012), http://www.justice.gov/iso/opa/ag/speeches/2012/ag-speech/1203051.html. Commentators have compiled a large body of legal and historical evidence dismantling the Attorney General's interpretation of due process. This Section will only briefly summarize the legal and historical arguments in favor of focusing on the practical considerations that militate against a definition of due process that turns on a presumptive distinction between innocents and combatants. These practical considerations play a crucial role in my discussion of some of the requirements for legitimate twenty-first century outlawry proceedings in Part V, infra.
(26.) Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 49 (D.D.C. 2010) ("The significance of Anwar Al-Aulaqi's U.S. citizenship is not lost on this Court. Indeed, it does not appear that any court has ever-on political question doctrine grounds--refused to hear a U.S. citizen's claim that his personal constitutional rights have been violated as a result of U.S. government action taken abroad.").
(27.) Dent v. West Virginia, 129 U.S. 114, 123 (1889) ("As we have said on more than one occasion, it may be difficult, if not impossible, to give to the terms 'due process of law' a definition which will embrace every permissible exertion of power affecting private rights and exclude such as are forbidden.").
(28.) See Stephen J. Schulhofer, Checks and Balances in Wartime: American, British and Israeli Experiences, 102 MICH. L. REV. 1906, 1916 (2004). Schulhofer rejects the George W. Bush Administration's attempt to establish that the President's powers as Commander-in-Chief have traditionally been beyond judicial scrutiny, observing that
judicial decisions consistently reflected two judgments: that even under wartime conditions, protection against the risk of unjust incarceration required the robust procedural safeguards of the Bill of Rights; and that threats to national security, even when convincing, could be less important than the dangers of overreaching by a well-intentioned but overzealous executive branch.
(29.) See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950) ("Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty, or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.").
(30.) See, e.g., Richard Murphy & Afsheen John Radsan, Due Process and Targeted Killing of Terrorists, 31 CARDOZO L. REV. 405 (2009) (extending Boumediene v. Bush to the targeted killing context to argue for judicial review after an attack). The detention cases have also been used to argue that due process does not clearly demand the trappings of a full court proceeding when national security is at stake, see Holder, supra note 25, but this is not the same as dismissing judicial process entirely.
(31.) 542 U.S. 507 (2004) (plurality opinion).
(32.) Id. at 536 (concluding that a citizen-detainee has a right to know the factual basis for his detention and to receive a fair hearing before a neutral decisionmaker); see also id. at 596-97 (Thomas, J., dissenting) (observing that "the plurality's due process would seem to require notice and opportunity to respond" before the government bombed a target).
(33.) 553 U.S. 723 (2008).
(34.) Id. at 797.
(35.) See Note, Due Process Rights and the Targeted Killing of Suspected Terrorists: The Unconstitutional Scope of Executive Killing Power, 44 VAND. J. TRANSNAT'L L. 1353, 1369-70 (2011) (using the Mathews test to argue that the courts must be involved in checking the Executive's excesses).
(36.) See Holder, supra note 25.
(37.) See Nathan Freed Wessler, In Targeted Killing Speech, Holder Mischaracterizes Debate over Judicial Review, ACLU (Mar. 5, 2012, 7:34 PM), http://www.aclu.org/blog/national -security/targeted-killing-speech-holder-mischaracterizes-debate-over-judicial-review (arguing that our system of checks and balances demands that the courts play some role in deciding whether the government's decision to kill its own citizens is constitutional).
(38.) Alexander Hamilton, Remarks on an Act for Regulating Elections, New York Assembly (Feb. 6, 1787), in 4 THE PAPERS OF ALEXANDER HAMILTON 34, 35 (Harold C. Syrett ed., 1962).
(39.) For example, in several early state statutes--including a 1785 Virginia statute of frauds, a 1797 Massachusetts statute on escheat, and a 1797 Vermont statute on prison discipline--the phrase "due process of law" appears to have functioned as shorthand for judicial proceedings. Ryan C. Williams, The One and Only Substantive Due Process Clause, 120 YALE L.J. 408, 443-44 (2010). Similarly, several federal treaties and statutes adopted shortly after the ratification of the Constitution guaranteed "due process and trial," again indicating a judicial definition of due process. See id. at 444-45 & n.148 (emphasis added).
(40.) See, e.g., Jeh Charles Johnson, Gen. Counsel, U.S. Dep't of Def., Dean's Lecture at Yale Law School: National Security Law, Lawyers, and Lawyering in the Obama Administration (Feb. 22, 2012) (transcript available at http://www.lawfareblog.com/2012/02/jeh-iohnson-speech -at-yale-law-school).
(41.) See Kevin Jon Heller, The Folly of Comparing al-Awlaki to General Yamamoto, OPINIO JURIS (Oct. 1, 2011, 8:29 AM), http://opiniojuris.org/2011/10/01/the-folly-of-comparing-al -awlaki-to-admiral-yamamoto. This criticism holds however understandable the desire to avoid rewarding terrorists who violate the laws of war. For a discussion of how outlawry resolves the dilemma, see infra Section III.C.
(42.) Johnson, supra note 40.
(43.) BLUM & HEYMANN, supra note 21, at 79
(44.) Scott Shane, U.S. Approval of Killing of Cleric Causes Unease, N.Y. TIMES, May 13, 2010, http://www.nytimes.com/2010/05/14/world/14awlaki.html.
(45.) Afsheen John Radsan & Richard Murphy, The Evolution of Law and Policy for CIA Targeted Killing, 5 J. NAT'L SECURITY L. & POL'Y 439, 463 (2012).
(46.) Murphy & Radsan, supra note 30, at 410.
(47.) Id. at 450.
(48.) Professors Murphy and Radsan anticipated this criticism, and acknowledged additional hurdles to Bivens-style actions, such as the state-secrets privilege. Id. at 443. They went so far as to predict that courts might be inclined to treat targeted killings as a political question. Id. at 444. But their response was to focus their attention on advocating for a robust form of "independent, intra-executive" review to offset the resulting limitations on the judicial role. Id. at 445; see also Afsheen John Radsan & Richard Murphy, Measure Twice, Shoot Once: Higher Care for CIA-Targeted Killing, 2011 U. ILL. L. REV. 1201 (proposing rigorous independent executive review in conducting drone killings).
(49.) On July 18, 2012, the ACLU and the Center for Constitutional Rights filed a new lawsuit seeking damages for the deaths of Awlaki, Khan, and Awlaki's sixteen-year-old son. See Press Release, ACLU, Rights Groups File Challenge to Killings of Three Americans in U.S. Drone Strikes (July 18, 2012), http://www.aclu.org/national-security/rights-groups-file -challenge-killings-three-americans-us-drone-strikes.
(50.) More specifically, the practice of outlawry left no room for trial in absentia at English common law. James G. Starkey, Trial in Absentia, 53 ST. JOHN'S L. REV. 721, 722-23 (1979). Historically, the Supreme Court's concern has been whether such a trial violates due process, namely by denying the defendant his constitutional right to be present at his own trial. See, e.g., Snyder v. Massachusetts, 291 U.S. 97, 107-08 (1934) (concluding that due process requires the defendant's presence only to the extent that his absence would thwart a fair and just hearing). Much like outlawry, rather than regarded as a paragon of process, trial in absentia has suffered criticisms for its "totalitarian imagery." Starkey, supra, at 742. Trial in absentia and outlawry suffer the same potential legal problem-a lack of clearly expressed intent on the part of the would-be defendant to waive the constitutional right in question. See infra Section IV.B.
(51.) See, e.g., Juan Cole, Al-'Awlaqi Should Have Been Tried in Absentia, INFORMED COMMENT, (Oct. 1, 2011), http://www.juancole.com/2011/10/al-awlaqi-should-have-been-tried-in -absentia.html.
(52.) Radsan & Murphy, supra note 48, at 1239.
(53.) Editorial, Justifying the Killing of an American, N.Y. TIMES, Oct. 11, 2011, http://www.nytimes.com/2011/10/12/opinion/justifying-the-killing-of-an-american.html.
(54.) See Harvey Rishikof, Is It Time for a Federal Terrorist Court? Terrorists and Prosecutions: Problems, Paradigms, and Paradoxes, 8 SUFFOLK J. TRIAL & APP. ADVOC. 1, 8 (2003) (laying out the five critical ways in which military commissions differ from federal trials, and the George W. Bush Administration's argument that these differences allowed the government "to safeguard classified information, provide security for court personnel, remain flexible as the war evolved, and accommodate the broad range of evidence gathered"). For example, in the targeting context, one concern is that the evidentiary bar in federal court would be "impossibly high." David Byman, Do Targeted Killings Work?, FOREIGN APF., Mar.-Apr. 2006, at 95.
(55.) The fact that other countries have tried terrorists in absentia with seeming success does not alone support initiating similar proceedings in the United States. For example, a Yemeni court tried Awlaki in absentia in November 2010, while his father's lawsuit was pending in D.C. district court. See Anwar al-Awlaki Charged in Yemen with Crimes Against Foreigners, TELEGRAPH (London), Nov. 2, 2010, http://www.telegraph.co.uk/news/uknews/terrorism-in -the-uk/8104321/Anwar-al-Awlaki-charged-in-Yemen-with-crimes-against-foreigners-html. Awlaki was eventually sentenced to ten years in prison. Jake Tapper, The U.S. Case Against Awlaki, ABC NEWS (Sept. 30, 2011, 10:40 AM), http://abcnews.go.com/blogs/politics/2011/09 /the-us-case-against-awlaki. But the Yemeni judiciary has also been described as weak and dependent, and the country faces recurring allegations of unfair trials. Bureau of Democracy, Human Rights & Labor, Country Reports on Human Rights Practices for 2011: Yemen, U.S. DEP'T OF ST. 9-10 (2011), http://www.state.gov/documents/organization/186667.pdf. For another example, consider the tainted terrorism trials stirring controversy in Algeria. See Algeria: Long Delays Tainting Terrorism Trials, HUM. RTS. WATCH (June 18, 2012), http://www.hrw.org/news/2012/06/18/algeria-long-delays-tainting-terrorism-trials.
(56.) See, e.g., David Husband, The Targeted Killing of Al-Awlaki, HARV. NAT'L SECURITY J. ONLINE (Nov. 26, 2011, 5:08 PM), http://harvardnsj.org/2011/11/the-targeted-killing-of-al -awlaki.
(57.) See, e.g., MICHAEL IGNATIEFF, THE LESSER EVIL: POLITICAL ETHICS IN AN AGE OF TERROR 134 (2004); Murphy & Radsan, supra note 30, at 449; Editorial, The Power To Kill, N.Y. TIMES, Mar. 10, 2012, http://www.nytimes.com/2012/03/11/opinion/sunday/the-power-to-kill .html; Editorial, When the Government Kills, L.A. TIMES, July 29, 2012, http://articles.latimes.com/2012/jul/29/opinion/la-ed-drone-killingsqawsuit-20120799.
(58.) Editorial, Justifying the Killing of an American, supra note 53.
(59.) Byman, supra note 54, at 95.
(60.) Id. at 111. This is distinguishable from proposals for a procedure entirely internal to the executive branch. See, e.g., Carla Crandall, Ready ... Fire ... Aim! A Case for Applying American Due Process Principles Before Engaging in Drone Strikes, 24 FLA. J. INT'L L. 55 (2012) (advocating for the creation of a prestrike review tribunal that resembles combatant status review tribunals). A special executive court with exclusive killing oversight has been likened to the Star Chamber, a seventeenth-century English venue for death panels deployed against the King's political enemies and religious dissenters. See Ryan Patrick Alford, The Rule of Law at the Crossroads: Consequences of Targeted Killing of Citizens, 2011 UTAH L. REV. 1203, 1223-24, 1249; Doug Mataconis, There Really Is a Death Panel, OUTSIDE THE BELTWAY (Oct. 6, 2011), http://www.outsidethebeltway.com/there-really-is-a-death-panel.
(61.) Byman, supra note 54, at 111. For a brief discussion of the FISA court, see infra Subsection III.B.1.
(62.) See, e.g., Orin S. Kerr, Updating the Foreign Intelligence Surveillance Act, 75 U. CHI. L. REV. 225 (2008); Jeremy D. Mayer, 9-11 and the Secret FISA Court: From Watchdog to Lapdog?, 34 CASE W. RES. J. INT'L L. 249 (2002). It is not clear that the rate at which the court issues warrants suggests rubber-stamping. See infra Section III.B.
(63.) See supra text accompanying note 29.
(64.) Al-Aulaqi v. Obama, 7271 F. Supp. 2d 2, 27 (D.D.C. 2010).
(65.) Id. at 18 n.4.
(66.) Dehn & Heller, supra note 17, at 285 (Heller, Rebuttal). For a discussion of practical realities that could preclude the surrender of the accused despite notice, see infra Subsection V.B.4.
(67.) Michael Mukasey, U.S. Attorney Gen., Remarks at the American Enterprise Institute (July 21, 2008), http://www.justice.gov/archive/ag/speeches/2008/ag-speech-0807213.html; see also WILLIAM REHNOUIST, ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME 205 (1998) ("Judicial inquiry, with its restrictive rules of evidence, orientation towards resolution of factual disputes in individual cases, and long delays, is ill-suited to determine an issue such as 'military necessity.'").
(68.) See, e.g., Latif v. Obama, 666 F.3d 746 (D.C. Cir. 2011) (conceding that a court conducting detainee habeas proceedings must have the authority to assess the sufficiency of the government's evidence, but affording the government's evidence a rebuttable "presumption of regularity").
(69.) Kevin Heller suggests that this might be a suitable alternative if the government "has reason to believe that notifying the target of his status will cause him to disappear." Kevin Jon Heller, The Washington Post on Al-Aulaqi, OPINIO JURIS (Sept. 6, 2010, 10:52 AM), http://opiniojuris.org/2010/09/06/the-washington-post-on-al-aulaqi. But while this is a practical response to the government's resistance to publicizing the CIA's list of American targets, it does not translate into a legitimate legal substitute for notice. See infra Subsection V.B.3.
(70.) I do not explore the institutional damage that could result from requiring judges to assess the substance of executive targeting determinations, but Benjamin Wittes has voiced compelling concerns about the long-term consequences of "judicializing intelligence and... implicating federal judges in the dirtiest work of the intelligence community." Benjamin Wittes, Thoughts in Response to Spencer Ackerman #2, LAWFARE (Oct. 2, 2011, 10:01 PM), http ://www.lawfareblog.com/2011/10/thoughts-in-response-to-spencer-ackerman-2.
(71.) See supra Section I.A.
(72.) See, e.g., Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2711 (2010) ("[R]espect for the Government's factual conclusions is appropriate in light of the courts' lack of expertise with respect to national security and foreign affairs, and the reality that efforts to confront terrorist threats occur in an area where information can be difficult to obtain, the impact of certain conduct can be difficult to assess, and conclusions must often be based on informed judgment rather than concrete evidence.").
(73.) See Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948) ("[E]ven if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative...."). Although Waterman has been described as an old case, see Air Line Pilots' Ass'n Int'l v. Dep't of Transp., 446 F.2d 236, 240 (5th Cir. 1971), the above-quoted language remains an influential articulation of the Executive's distinct powers. For example, in People's Mojahedin Organization of Iran v. U.S. Department of State, 182 F.3d 17 (D.C. Cir. 1999), the D.C. Circuit relied on Waterman to hold that whether the activities of a designated terrorist organization threatened national security amounted to a political judgment outside the court's purview. See id. at 23; see also Americo R. Cinquegrana, The Walls (and Wires) Have Ears: The Background and First Ten Years of the Foreign Intelligence Surveillance Act of 1978, 137 U. PA. L. REV. 793, 803-04 (1989) (citing the decisions of four federal courts of appeals that accepted a foreign intelligence exception to the warrant requirement, often based on the potential negative impact of judicial interference). In United States v. U.S. District Court, 407 U.S. 297 (1972), the Supreme Court ruled that the Fourth Amendment required the government to obtain a warrant to conduct domestic security surveillance, but emphasized that the decision concerned strictly the surveillance of domestic organizations without significant foreign connection. Id. at 308-09, 321-22.
(75.) Professor May makes a similar observation in his work on the procedural values enshrined in the Magna Carta and their implications for for international law and Guantanamo detention policies. May, Magna Carta, supra note 9, at 95, 101. A focus on procedural justice, rather than substantive justice, also informs this Note, but in the context of domestic law and specifically in the form of outlawry.
(76.) 3 WILLIAM BLACKSTONE, COMMENTARIES "319.
(77.) Richards, supra note 1, at 298.
(78.) 12 THE NEW AMERICAN CYCLOPAEDIA: A POPULAR DICTIONARY OF GENERAL KNOWLEDGE 615 (George Ripley & Charles A. Dana eds., New York, D. Appleton & Co. 1869) [hereinafter THE NEW AMERICAN CYCLOPAEDIA].
(79.) WRIGHT, supra note 3, at 214; Frederick Pollock, Anglo-Saxon Law, 8 ENG. HIST. KEY. 260 (1893).
(80.) 1 FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD 1449 (The Lawbook Exchange, Ltd. 1996) (2d ed. 1898).
(81.) 12 THE NEWAMERICAN CYCLOPAEDIA, supra note 78, at 615.
(82.) Pollock, supra note 79, at 260.
(83.) 1 POLLOCK & MAITLAND, supra note 80, at 450.
(84.) Id. at 450 n.2.
(85.) Richards, supra note 1, at 298-99.
(86.) See Nathan Levy, Jr., Mesne Process in Personal Actions at Common Law and the Power Doctrine, 78 YALE L.J. 52, 81 (1968).
(87.) 1 POLLOCK & MAITLAND, supra note 80, at 49.
(88.) Richards, supra note I, at 298. Henry Bracton distinguished true outlawry from presumptive outlawry: true outlawry involved flight after a felonious breach of the peace in the form of assault or homicide, while presumptive outlawry was flight from legal action, however minor the offense. 2 HENRY BRACTON, ON THE LAWS AND CUSTOMS OF ENGLAND 356-57 (George E. Woodbine ed., Samuel E. Thorne trans., Harvard Univ. Press 1968) (1554).
(89.) 4 BLACKSTONE, supra note 76, at *374.
(90.) Before the passage of the Magna Carta, individuals who presented a political threat to the Crown could be arbitrarily declared outlaws and have their property confiscated. King John notoriously abused outlawry for his own financial gain and to eliminate his enemies under the pretense of process. See JAMES CLARKE HOLT, MAGNA CARTA 109 (2d ed. 1992) ; Ifor W. Rowlands, King John and Wales, in KINC JOHN: NEW INTERPRETATIONS 273, 286 (S.D. Church ed., 1999).
(91.) For example, by the mid-fourteenth century, outlawry had deteriorated in large part because of the ease and regularity with which outlaws eluded the law. See E.L.G. Stones, The Folvilles of Ashby-Folville, Leicestershire, and Their Associates in Crime, 1326-1347, 7 TRANSACTIONS ROYAL HIST. Sot., FIFTH SERIES 117, 132 (1957) (attributing the fourteenth-century legal system's failures in bringing "notorious felons" to justice to police inefficiency and the Crown's lax issuance of pardons). Although Edward I instituted trailbaston commissions in 1304, sending royal justices to local counties ostensibly to effectuate the law, the commissions were unpopular and viewed as, among other things, a corrupt means for the Crown to exact profit. See MICHAEL PRESTWICH, EDWARD I, at 286-87 (2d ed. 1997).
(92.) Magna Carta ch. 29, reprinted and translated in A.E. DICK HOWARD, MAGNA CARTA: TEXT AND COMMENTARY 43 (1964); see WRIGHT, supra note 3, at 214-15.
(93.) Dent v. West Virginia, 129 U.S. 114, 123 (1889). The Supreme Court has recognized "the law of the land" provision as the predecessor of Fifth Amendment "due process." Id. at 123-24; see also Hurtado v. California, 110 U.S. 516, 533 (1884) ("Due process of law is process according to the law of the land." (quoting Walker v. Sauvinet, 92 U.S. 90, 93 (1875))). For an account of the English barons' attempt to protect themselves from the King's arbitrary use of outlawry, see F.M. Powicke, Per Iudicium Parium vel per Legem Terrae, in MAGNA CARTA COMMEMORATION ESSAYS 96, 103 (Henry Elliot Malden ed., 2d prtg. 2006), which explains that "the thirty-ninth clause [of the Magna Carta] was intended to lay stress not so much on any particular form of trial as on the necessity for protection against the arbitrary acts of imprisonment, disseisin, and outlawry in which King John had indulged."
(94.) 2 POLLOCK & MAITLAND, supra note 80, at 581. The initial summons in an appeal generally involved no writ. Id.
(95.) Id. at 581-82.
(97.) Richards, supra note 1, at 302.
(99.) 1 POLLOCK & MAITLAND, supra note 80, at 539. Often the accused failed to appear. Susan Stewart, Outlawry as an Instrument of Justice in the Thirteenth Century, in OUTLAWS IN MEDIEVAL AND EARLY MODERN ENGLAND: CRIME, GOVERNMENT AND SOCIETY, C. 1066-C. 1600, at 37, 41 (John C. Appleby & Paul Dalton eds., 2009).
(100.) Stewart, supra note 99, at 40.
(101.) See Statutum de Frangentibus Prisonam [Statute of Breaking Prisons], 23 Edw. (1295) (U.K.) ("Concerning prisoners which break prison, our lord and king willeth and commandeth, that none from henceforth that breaketh prison shall have judgement of life or member for breaking of prison only, except the cause for which he was taken and imprisoned did require such judgment...." (spelling modernized)).
(102.) See Ralph B. Pugh, Early Registers of English Outlaws, 27 AM. J. LEGAL HIST. 319, 319 (1983).
(103.) Sir Richards details several statutes passed during the reigns of Henry V and Henry VI. Richards, supra note 1, at 302-03.
(104.) 1 POLLOCK & MAITLAND, supra note 80, at 581.
(105.) Richards, supra note 1, at 300. According to Blackstone, a judgment of outlawry could be reversed for "any irregularity, omission or want of form." 4 BLACKSTONE, supra note 76, at "391. The late thirteenth century marked the Crown's attempts to bring outlawry under centralized control, which resulted in fundamental changes to the practice. Melissa Sartore, Outlawry, Governance and Law in Medieval England 239 (2010) (unpublished Ph.D. dissertation, University of Wisconsin-Madison) (on file with University of Wisconsin-Madison). For example, pardons blunted the force of a proclamation of outlawry and increased the importance of imprisonment. Id. at 234.
(106.) See Richards, supra note 1, at 300.
(107.) Id. The outlaw was entitled to reversal for only a year because if trial by jury were guaranteed irrespective of when he chose to surrender, he would have an incentive to return to the jurisdiction only upon the deaths of the witnesses against him. Id. at 301.
(108.) Id. at 303. The English courts kept elaborate records of outlawry from at least the late fourteenth century until 1870. Pugh, supra note 202, at 329 & n.76. By another account, 1855 was the last recorded date when an English court rendered a judgment of outlawry. Robert E. Lee, Only Three States Permit a Man To Be Declared an Outlaw, DISPATCH (Lexington, N.C.), Dec. 4, 1963, at 2.
(109.) See Richards, supra note 1, at 303-04. Outlawry in criminal proceedings was not abolished until 1938. Administration of Justice Act, 1938, 1 & 2 Geo. 6, c. 63, [section] 12 (Eng.).
(110.) United States v. Hall, 198 F.2d 726, 727 (1952).
(111.) THE NEW AMERICAN CYCLOPAEDIA, supra note 78, at 616.
(112.) FRANK RICHARD PRASSEL, THE GREAT AMERICAN OUTLAW: A LEGACY OF FACT AND FICTION 107-08 (1993).
(113.) Id. For a description of outlawry proceedings as modified by statute in 1791, see 1 JOHN PURDON, A DIGEST OF THE LAWS OF PENNSYLVANIA, FROM THE YEAR ONE THOUSAND SEVEN HUNDRED TO THE TENTH DAY OF JULY, ONE THOUSAND EIGHT HUNDRED AND SEVENTY-TWO 623-26 (1824).
(114.) PURDON, supra note 113, at 623, 625.
(115.) See id. at 624.
(116.) See PRASSEL, supra note 112, at 107.
(117.) See Gail S. Rowe, Outlawry in Pennsylvania, 1782-1788 and the Achievement of an Independent State Judiciary, 20 AM. J. LEGAL HIST. 227, 233 (1976).
(118.) Id. at 230-31.
(119.) A group of county residents who had been subjected to the Doans' "reign of terror" opposed the reversal of Aaron Doan's judgment of outlawry and condemned any effort by either the Council or the Pennsylvania Assembly to help "the two terrorists" escape execution. Id. at 242.
(120.) Id. at 231.
(122.) Id. at 233.
(123.) Respublica v. Doan, 1 Dall. 86, 93 (Pa. 1784).
(124.) Id. at 90-91.
(125.) Rowe, supra note 117, at 238.
(126.) Id. In 1787, Dickinson's successor, Benjamin Franklin, pardoned the still-incarcerated Doan, who returned to a life of crime in New Jersey before absconding to Canada. Id. at 240.
(127.) Id. at 244. The confusion arising out of the Doan case also persuaded the Pennsylvania legislature to pass a new bill in 1791 that established clearer and more lenient outlawry procedures. JACK D. MARIETTA & G.S. ROWE, TROUBLED EXPERIMENT: CRIME AND JUSTICE IN PENNSYLVANIA, 1682-1800, at 213 (2006).
(128.) PRASSEL, supra note 112, at 107.
(129.) Act of Mar. 1, 1866, ch. 62, [section] 1, 1866 N.C. Sess. Laws 125, 125 (repealed 1997).
(130.) Id.; see Nation: The Outlaws of 1970, TIME, Apr. 20, 1970, http://www.time.com/time /magazine/arficle/0,9171,944011,00.html. It bears noting that the history of North Carolina's outlawry law is racially fraught. The statute was enacted specifically in response to the activities of the Lowry gang after the Civil War. See id. at 108. That said, the state constitution recognized outlawry as a sanction subject to legal process: "No person shall be ... outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land." N.C. CONST. art. I, [section] 19.
(131.) See PRASSEL, supra note 112, at 107.
(132.) See This Is the Law: Outlaws ..., DISPATCH (Lexington, N.C.), Nov. 5, 1975, at 2.
(133.) See id.
(134.) Tiede, supra note 6.
(135.) See infra Part V.
(136.) See STEPHEN E. AMBROSE, HALLECK: LINCOLN'S CHIEF OF STAFF 129 (1962).
(138.) MICHAEL FELLMAN, INSIDE WAR: THE GUERRILLA CONFLICT IN MISSOURI DUR]NG THE AMERICAN CIVIL WAR 112 (1989).
(139.) Id. at 168.
(140.) Id. at 123.
(141.) See id. Although the practice was neither official nor uniform, "in general and whenever they wished, Union troops shot or hanged their captives, as did their guerrilla foes." Id. at 168.
(142.) Id. at 88 (citation omitted).
(144.) Id. at 123. The Union field officers "fully understood the vagueness of the line between civilian and guerrilla and brought conflicting hopes and fears to bear on just who the enemy was, and how he was to be treated." Id. at 113. Michael Fellman's description of the Union quandary over the appropriate treatment of hostile Confederate civilians suggests some profound parallels with the ongoing controversy over the Obama Administration's policy of targeting citizens:
[L]imited in their military means; torn between softs and hards; uncertain about the appropriateness and effectiveness of all imaginable policies; their soldiers pinned down in their posts in a countryside dominated by guerrillas, making their men as much the hunted as the hunters; diffused by their own ambivalences and uncertainties, Union military authorities would never construct a satisfactory policy to respond to this guerrilla war.
Id. at 97
(145.) PRASSEL, supra note 112, at 106.
(146.) VA. CODEANN. [section] 19.2-10 (2008).
(147.) Dale County v. Gunter, 46 Ala. 118, 139 (1871). The Alabama Supreme Court focused on the implications of denying the outlaw the ability to bring action for redress of injuries, as the result was "if not inconsistent with the letter of our bill of rights," nevertheless inconsistent with its spirit. Id. In the modern context, provisions for the reversal of outlawry upon the fugitive's surrender would mitigate this problem. See infra Section V.B.4.
(148.) TEX. CONST. art. I, [section] 20.
(149.) AMBROSE, supra note 136, at 128.
(150.) LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 36 (3d ed. 2008). For evidence that the Lieber Code also marked the first time military commissions were definitively granted jurisdiction to try law-of-war violations, and an extended discussion of military commissions as General Halleck's creative legal solution to combating Confederate guerrillas, see Gideon M. Hart, Military Commissions and the Lieber Code: Toward a New Understanding of the Jurisdictional Foundations of Military Commissions, 203 MIL. L. REV. 1 (2010).
(151.) RICHARD SHELLY HARTIGAN, LIEBER'S CODE AND THE LAW OF WAR 1 (1983).
(152.) FRANCIS LIEBER, U.S. WAR DEP'T, General Orders No. 100, INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD, art. 148 (1863) [hereinafter LIEBER CODE], reprinted in THE LAWS OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS 3, 18-19, 21 (Dietrich Schindler & Jiri Toman eds., 3d rev. ed. 2004); see also Memorandum from W. Hays Parks, Special Assistant for Law of War Matters to the Judge Advocate Gen. of the Army, to the Office of the Judge Advocate Gen. of the Army, Executive Order 12333 and Assassination (Nov. 2, 1989), http://www.hks.harvard.edu/cchrp/Use%200f%20Force/October%202002/Parks_final.pdf (describing Article 148 as the first description of what constitutes assassination conducted by the U.S. military). The phrase "without trial by any captor" seems to allude specifically to the practice of posse comitatus, which this Note argues need not be associated with outlawry. See infra Section IV.A.
(153.) Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 8 (D.D.C. 2010).
(154.) Id. at 9.
(155.) Theoretically, the government could exaggerate the threat posed by a prospective target. But outlawry proceedings are not unique in affording executive intelligence a significant degree of deference. As discussed in Subsection I.B.3, evidence offered by the government is allowed a presumption of regularity even in full criminal proceedings.
(156.) See infra Section IV.B.
(157.) See infra Subsection V.B.3.
(158.) See infra Section IV.B.
(159.) Judith Resnik, Detention, the War on Terror, and the Federal Courts, 110 COLUM. L. REV. 579, 635 (2010).
(160.) See Samuel Issacharoff & Richard H. Pildes, Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime, 5 THEORETICAL INQUIRIES L. 1, 7 (2004).
(161.) Id. at 6.
(162.) Id. at 44.
(163.) Id. at 44-45.
(164.) AL-Aulaqi v. Obama, 727 F. Supp. 2d 1, 8 (D.D.C. 2010).
(165.) The existing regime is itself far from perfect, and a critique
of it goes beyond the scope of this Note. However, it is worth noting the interrelated effects of the government's various counterterrorism policies. Illegalizing indefinite detainment, for example, would strengthen an outlawry-based targeted killing schema by making surrender a more viable option for the would-be fugitive. For a general discussion of the viability of surrender, see infra Subsection V.B.4.
(166.) Foreign Intelligence Surveillance Act of 1978 (FISA), Pub. L. No. 95-511, 92 Stat. 1783. Congress amended FISA after warrantless wiretapping conducted by the National Security Agency caused public outcry in 2005. FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436 (codified in scattered sections of 50 U.S.C.A. (2008)).
(167.) FISA [section] l05(a) (codified at 50 U.S.C. [section] 1805(a) (2006)).
(168.) 50 U.S.C.A. [section] 1805(e).
(169.) The court approved each of the 1,506 electronic surveillance requests submitted by the DOJ in 2010. Letter from Ronald Welch, U.S. Assistant Attorney Gen., to Harry Reid, Senate Majority Leader (Apr. 29, 2011), http://www.fas.org/irp/agency/doj/fisa/2010rept.pdf.
(170.) Note, Shifting the FISA Paradigm: Protecting Civil Liberties by Eliminating Ex Ante Judicial Approval, 121 HARV. L. REV. 2200, 2206 (2008).
(171.) See David G. Savage & Henry Weinstein, Court Widens Wiretapping in Terror Cases, L.A. TIMES, Nov. 19, 2002, http://articles.latimes.com/2002/nov/19/nation/na-wiretap19.
(172.) See Editorial, The Power To Kill, supra note 57 ("[T]he FISA court works with great speed and rarely rejects a warrant request, partly because the executive branch knows the rules and does not present frivolous or badly argued cases.").
(173.) See Becker & Shane, supra note 19 ("[T]he administration's very success at killing terrorism suspects has been shadowed by a suspicion: that Mr. Obama has avoided the complications of detention by deciding, in effect, to take no prisoners alive.").
(174.) See supra Subsection I.B.1.
(175.) A1-Aulaqi v. Obama, 727 F. Supp. 2d 1, 8 (D.D.C. 2010).
(176.) See, e.g., Ilya Somin, Admiral Yamamoto and the Justification of Targeted Killing, VOLOKH CONSPIRACY (May 23, 2011, 6:16 PM), http://volokh.com/2011/05/13/admiral-yamamoto -and-the-justification-of-targeted-killing ("If it is moral and legal to individually target uniformed enemy military officers, surely the same goes for leaders of terrorist organizations. It cannot be the case that law and morality give the latter greater protection than the former.").
(177.) See Alston Report, supra note 10, [paragraph] 60 (acknowledging the difficulty of defining "direct participation" in hostilities in such a way that protects civilians but does not reward an enemy hiding among civilians); see also Mark B. Baker, Terrorism and the Inherent Right of Self-Defense (A Call To Amend Article 51 of the United Nations Charter), 10 Hous. J. INT'L L. 25, 26 (1987) (observing that terrorists often engage in acts forbidden by the laws that govern in wartime).
(178.) In law enforcement terms, interpreting the suspect's flight as a constructive waiver of his trial rights prevents him from escaping the consequences of a guilty verdict while waging violence against the state. See infra Section IV.B.
(179.) John O. Brennan, Assistant to the President for Homeland Sec. & Counterterrorism, Prepared Remarks at the Woodrow Wilson International Center for Scholars: The Ethics and Efficacy of the President's Counterterrorism Strategy (Apr. 30, 2012) (transcript available at http://www.wilsoncenter.org/event/the-efficacy-and-ethics-us -counterterrorism-strategy).
(180.) For a brief discussion of the purpose of distinction (to protect civilians), see Laurie R. Blank, After "Top Gun": How Drone Strikes Impact the Law of War, 33 U. PA. J. INT'L L. 675, 689-94 (2012). Blank explains that "[i]dentifying who or what can be targeted is one of the most fundamental issues during conflict." Id. at 689. For a discussion of how Brennan's expansive definitions of imminent threat and proportional response undermine their usefulness in constraining executive power, see Amos Guiora & Laurie Blank, Targeted Killing's 'Flexibility' Doctrine that Enables US To Flout the Law of War, GUARDIAN (London), Aug. 3, 2012, http ://www.guardian.co.uk/commentisfree/2012/aug/10/targeted-killing-flexibility-doctrine -flout-law-war. See also Press Release, Professor Philip Alston, Statement of U.N. Special Rapporteur on U.S. Targeted Killings Without Due Process, ACLU (Aug. 3, 2010), http://www.aclu.org/national-security/statement-un-special-rapporteur-us-targeted-killings -without-due-process (condemning the United States's "expansive and open-ended interpretation of the right to self-defence").
(181.) This restrictive quality, among other things, distinguishes outlawry from recurring proposals for the "citizenship-stripping" of prospective American targets. See, e.g., Greg Sargent, Here's How Joe Lieberman's Citizenship-Stripping Bill Would Work, WASH. POST (May 5, 2010, 11:52 AM), http://voices.washingtonpost.com/plum-line/2010/05/howliebermans _citizen-strippi.html. The Supreme Court ruled in Afroyim v. Rusk, 387 U.S. 253 (1967), that Congress cannot expatriate a citizen on the grounds that certain acts created a presumption that he intended to relinquish his citizenship. But outlawry is not the same as expatriation and infers waiver only if myriad procedural standards to ensure clear intent have been met. Citizenship stripping, meanwhile, not only does nothing to overcome the due process problems posed by the government's targeting program, it also does great harm by perpetuating the myth that citizenship alone poses a constraint on the President's killing powers. See Section V.C.
(182.) Cole, supra note 51.
(183.) 428 U.S. 153 (1976).
(184.) Id. at 176.
(185.) Id. at 176-77.
(186.) Letter from Alexander Hamilton to Rufus King (Oct. 30, 1794), reprinted in 10 THE WORKS OF ALEXANDER HAMILTON 77 (Henry Cabot Lodge ed., 1904).
(187.) CHRISTIAN G. FRITZ, AMERICAN SOVEREIGNS: THE PEOPLE AND AMERICA'S CONSTITUTIONAL TRADITION BEFORE THE CIVIL WAR 184 (2008).
(188.) 4 ANNALS OF CONG. 271 (Jan. 28, 1796).
(189.) See Mattis v. Schnarr, 404 F. Supp. 643, 650 (E.D. Mo. 1975) (observing that thirty-four states authorized the use of deadly force to effectuate the arrest of a fleeing felon), rev'd on other grounds, 547 F.2d 1007 (8th Cir. 1976), vacated sub nom. Ashcroft v. Mattis, 431 U.S. 171 (1977) ; Cunningham v. Ellington, 323 F. Supp. 1072, 1075 (W.D. Tenn. 1971) (holding that an officer's use of necessary means, including deadly force, to effect the arrest of a defendant in flight was not punishment under the Eighth Amendment). See generally James O. Pearson, Jr., Annotation, Modern Status: Right of Peace Officer To Use Deadly Force in Attempting To Arrest Fleeing Felon, 83 A.L.R.3d 174 (1978) (listing cases that support the broad rule that officers may use deadly force where necessary to effect the arrest of a felon).
(190.) See, e.g., Gregg, 428 U.S. at 175-76.
(191.) Id. at 173.
(192.) See, e.g., Reneau v. State, 70 Tenn. 720, 721-22 (1879); see also Jones v. Marshall, 528 F.2d 132, 133-34 (2d Cir. 1975) (observing that the common law rule allowing an officer to kill a person fleeing arrest for a felony evolved when only crimes involving force or violence, punishable by death and forfeiture, were felonies); Beech v. Melancon, 465 F.2d 425, 426-27 (6th Cir. 1972) (McCree, J., concurring) (voicing constitutional concerns with any statute permitting lethal force against the "fleeing income tax evader, antitrust law violator, selective service delinquent, or other person whose arrest might he sought for the commission of any one of a variety of other felonies of a type not normally involving danger of death or serious bodily harm").
(193.) See infra Part V.
(194.) Sir Richards specifically cited reversibility of outlawry as a grounds for rejecting the proposition that "to condemn any person without trial is contrary to the principles of justice." Richards, supra note 1, at 304.
(195.) Gregg, 428 U.S. at 171 (quoting Weems v. United States, 217 U.S. 349, 378 (1910)).
(196.) 2 POLLOCK & MAITLAND, supra note 80, at 577.
(197.) 1 BLACKSTONE, supra note 76, at *344. For a discussion of the federal prohibition on posse comitatus as a form of military enforcement of domestic law, see infra note 243.
(198.) PRASSEL, supra note 112, at 109.
(199.) See Rochin v. California, 342 U.S. 165, 169 (1952) (declaring that regard for the requirements of the Due Process Clause "inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings [resulting in a conviction] in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses" (quoting Malinski v. New York, 324 U.S. 401, 416-17 (1945))).
(200.) See, e.g., David Cole, Killing Our Citizens Without Trial, N.Y. REV. Boogs, Nov. 24, 2011, http://www.nybooks.com/articles/archives/2011/nov/24/killing-our-citizens-without-trial.
(201.) See, e.g., Dan Markel, Quintessentially American: Suing the Lethal Presidency, PRAWFSBLAWG (July 18, 2012, 2:21 PM), http://prawfsblawg.blogs.com/prawfsblawg/dan_markel.
(202.) See, e.g., Daphne Eviatar, 9/11 Masterminds Could Face Trial in Federal Court, WASH. INDEP. (Oct. 21, 2009, 6:00 AM), http://washingtonindependent.com/64590/911-masterminds -could-face-trial-in-federal-court.
(203.) See infra Section V.B.
(204.) Marchant v. Pa. R.R. Co., 153 U.S. 380, 387 (1894) (emphasis added) (quoting Hoger v. Reclamation Dist., 111 U.S. 701, 708 (1884)).
(205.) See supra Section II.B.
(206.) See Office of Justice Programs, Compendium of Federal Justice Statistics, 2000, U.S. DEP'T OF JUSTICE 53 (2000), http://bjs.ojp.usdoj.gov/content/pub/pdf/cfjsoo.pdf.
(207.) Johnson v. Zerbst, 304 U.S. 458,464 (1938).
(208.) Note, The Guilty Plea as a Waiver of "Present but Unknowable" Constitutional Rights: The Aftermath of the Brady Trilogy, 74 COLUM. L. REV. 1435, 1436 (1974).
(209.) Flight and a guilty plea are also distinct in the sense that one is a gamble and the other a bargain. The harsher sanction in the case of nonappearance is arguably the cost of attempted flight.
(210.) Cf. Aetna Ins. Co. v. Kennedy, 3Ol U.S. 389, 393 (1937) ("[A]s the right of jury trial is fundamental, courts indulge every reasonable presumption against waiver.").
(211.) See Michael E. Tigar, The Supreme Court, 1969 Term-Foreword: Waiver of Constitutional Rights: Disquiet in the Citadel, 84 HARV. L. REV. 1, 8 (1970).
(212.) 397 U.S. 337 (1970).
(213.) For an extended discussion of various types of waiver and inconsistencies in the Court's approach to analyzing the voluntariness underlying waivers, see Tigar, supra note 21x, at 7-25.
(214.) Allen, 397 U.S. at 346.
(215.) 414 U.S. 17 (1973).
(216.) Id. at 20.
(217.) Crosby v. United States, 506 U.S. 255, 261-62 (1993).
(218.) Starkey, supra note 50, at 721, 742-43.
(219.) Id. at 742.
(220.) See infra Section V.B. For a brief discussion of how this distinguishes outlawry from a system under which expatriation is justified through inferred waiver, see supra note 181.
(221.) See U.S. CONST. art. I, [section] 9, cl. 3; see, e.g., LEANNE FIFTAL ALARID, COMMUNITY-BASED CORRECTIONS 312 (9th ed. 2010) ("Outlawry as a form of punishment is not allowed in the United States by virtue of Article I of the Constitution, which forbids 'bills of attainder.'").
(222.) See U.S. CONST. art. III, [section] 3, cl. 2.
(223.) 4 BLACKSTONE, supra note 76, at *373.
(224.) See Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 846-47 (1984) (citing Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 468 (1977)); United States v. Lovett, 328 U.S. 303, 315 (1946).
(225.) See Jacob Reynolds, The Rule of Law and the Origins of the Bill of Attainder Clause, 18 ST. THOMAS L. REV. 177, 177-78 (2005).
(226.) Alford, supra note 60, at 1210; see also Ullmann v. United States, 350 U.S. 422, 452 n.5 (1956) (Douglas, J., dissenting) ("The guarantee of jury trial and the prohibition of Bills of Attainder place beyond the pale the imposition of infamy or outlawry by either the Executive or the Congress.").
(227.) Complaint at 16, Al-Aulaqi v. Panetta, No. 12-cv-01192 (D.D.C. July 18, 2012).
(228.) Cf. Ryan Alford, Outlawry and Indeterminacy: Mere Formalistic Concerns?, CATO UNSOUND (June 17, 2011, 2:21 PM), http://www.cato-unbound.org/2011/06/17/ryan-alford/outlawry -and-indeterminacy-mere-formalistic-concerns ("Allowing the president to declare a citizen an outlaw, who then effectively has no legal rights and can be killed on sight pursuant to the president's order to do so, dispenses with the centuries of collected wisdom about due process and the rule of law embodied in the U.S. Constitution." (emphasis added)).
(229.) WILLIAM H. REHNQUIST, THE SUPREME COURT: HOW IT WAS, HOW IT IS 166 (1987) (emphasis added). For example, a 2010 bill that Representative Charles Dent introduced in the House to revoke Awlaki's citizenship represents an overtly problematic congressional attempt to single out an individual for punishment in violation of the Bill of Attainder Clause. H.R. Res. 1288, 111th Cong. (2010); see supra note 181.
(230.) REHNQUIST, supra note 229.
(231.) At the heart of even broad legal interpretations of the Bill of Attainder Clause is the legislature's usurpation of the role of the courts in issuing judgments, a problem not posed by a carefully crafted outlawry statute that reserves the judgment for the judiciary. See, e.g., United States v. Brown, 381 U.S. 437, 442 (1965) (rejecting an overly narrow definition of the Bill of Attainder Clause but describing the Clause as "a general safeguard against ... trial by legislature" (emphasis added)).
(232.) 9 FRANK MOORE, THE REBELLION RECORD: A DIARY OF AMERICAN EVENTS, SUPPLEMENT 712 (New York, G.P. Putnam 1868).
(233.) Id. at 712-13.
(235.) Autry v. Mitchell, 420 F. Supp. 967, 970 (E.D.N.C. 1976).
(240.) This is the Law: Outlaws ..., supra note 132.
(241.) The Posse Comitatus Act, ch. 263, 20 Stat. 152 (1878) (codified at 18 U.S.C. [section] 1385 (2006)), prohibits military personnel from being used to enforce domestic law on American soil. But the prohibition does not apply where Congress grants such authority to a branch of the armed forces, establishes general rules for certain types of military assistance, or creates narrowly crafted legislation for particular circumstances. Even if the Act is inapplicable outside the United States, supplemental provisions in 10 U.S.C. [section] [section] 371-381 contain similar prohibitions that likely apply worldwide. CHARLES DOYLE, CONG. RESEARCH SERV., 95-964S, THE POSSE COMITATUS ACT AND RELATED MATTERS: THE USE OF THE MILITARY TO EXECUTE CIVILIAN LAW 46 (2000). In any case, Congress may expressly authorize military involvement in enforcing domestic law. See, e.g., 10 U.S.C. [section] 375 (2006).
(242.) See supra Section II.A.
(243.) See United States v. Hall, 198 F.2d 726,728 n.2 (2d Cir. 1952).
(244.) 18 U.S.C. [section] 2339A (2006).
(245.) An enemy combatant is "an individual who was part of or supporting Taliban or Al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces." Memorandum from Deputy Sec'y of Def. (July 24, 2006), http://www.defense.gov/news/Aug2006/ d20060809CSRTProcedures.pdf.
(246.) Carol J. Williams, Awlaki Death Rekindles Legal Debate on Targeting Americans, L.A. TIMES, Sept. 30, 2011, http://articles.latimes.com/2011/sep/30/world/la-fg-awlaki-due -process-20111001. In 2010, one official described Awlaki as more dangerous than Osama bin Laden. See Matthew Cole & Aaron Katersky, Awlaki: 'The Most Dangerous Man in the World,' ABC NEWS (Nov. 10, 2010), http://abcnews.go.com/Blotter/awlaki-dangerous-man -world/story?id=12109217.
(247.) J.M. Berger, Gone but Not Forgotten, FOREIGN POL'Y, Sept. 30, 2011, http://www .foreignpolicy.conl/artides/2011/09/30/Anwar_al_Awlaki_dead_but_not_forgotten.
(248.) See, e.g., Bruce Ackerman, Obama's Death Panel, FOREIGN POL'Y, Oct. 7, 2011, http://www.foreignpolicy.com/arfides/2011/10/07/obamas_death_panel ("Nobody suggests that Awlaki was one of al Qaeda's leading military strategists. His real weapon was his impassioned anti-American sermons....").
(249.) Pub. L. No. 107-400 115 Stat. 224 (2001). See Cole, supra note 200.
(250.) See, e.g., Amanda Schaffer, Comment, Life, Liberty, and the Pursuit of Terrorists: An In-Depth Analysis of the Government's Right To Classify United States Citizens Suspected of Terrorism as Enemy Combatants and Try Those Enemy Combatants by Military Commission, 30 FORDHAM URB. L.J. 1465, 1475-76 (2003). Indictments are not considered essential to due process. In Hurtado v. California, 110 U.S. 516 (1884), the Supreme Court held that a state's use of an information instead of a grand jury indictment did not constitute a denial of due process of law, with explicit reference to the use of informations at common law. Id. at 538.
(251.) Bureau of Counterterrorism, Foreign Terrorist Organizations, U.S. DEP'T OF ST. (Sept. 28, 2012), http://www.state.gov/j/ct/rls/other/des/123085.htm. The Secretary of State makes the designation and gives Congress seven days to block it. Id. In contrast, only a court would be able to "designate" an individual an outlaw.
(253.) See supra Section II.A.
(254.) See supra Subsection I.B.3.
(255.) Such leaks are often the confusing product of officials speaking on condition of anonymity. See, e.g., Dana Priest, U.S. Military Teams, Intelligence Deeply Involved in Aiding Yemen on Strikes, WASH. POST, Jan. 27, 2010, http://www.washingtonpost.com/wp-dyn /content/article/2010/01/26/AR2010012604239.html (reporting that an anonymous intelligence official had stated that Awlaki was among three U.S. citizens on the CIA's kill-or-capture list--a statement that the source later retracted as a misunderstanding, according to a correction appended to the article).
(256.) Hamdi v. Rumsfeld, 542 U.S. 507, 597 (2004) (Thomas, J., dissenting).
(257.) Murphy & Radsan, supra note 30, at 446.
(258.) Priest, supra note 255.
(259.) YouTube Removes Video Sermons by al-A1vlaki, CBS NEWS (Nov. 4, 2010, 11:28 AM), http://www.cbsnews.com/2100-205_162-7021533.html.
(260.) Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 17 (D.D.C. 2010).
(261.) The Obama Administration has conceded the importance of ensuring that its use of lethal force conforms to the principle of necessity as required by the law of war. Brennan, supra note 179.
(262.) Alford, supra note 60, at 1255-57. Alford argues that Judge Bates made two other problematic assumptions in addition to presupposing that Awlaki had the notice necessary to challenge his own status as a target: first, that the government would act in accordance with the Constitution after having decided Awlaki was not protected by it; and second, that Alwaki had access to the kind of technology that would enable him to make contact with counsel while hiding in the mountains. See id.
(263.) Alston Report, supra note 10, [paragraph] [paragraph] 34-35; see also Abraham D. Sofaer, The Sixth Annual Waldemar A. Solf Lecture in International Law: Terrorism, the Law, and the National Defense, 126 MIL. L. REV. 89, 106 (1989) (describing territorial sovereignty as a major legal constraint on taking actions against terrorists in foreign countries, but explaining that the national defense may require breach where states fail their obligation to control terrorist activities taking place within their borders). In Pakistan, however, the U.S. government is reportedly operating under the curious assumption that it has tacit consent to conduct its drone strikes, despite the country's public opposition to the program. Adam Entous, Siobhan Gorman & Evan Perez, U.S. Unease Over Drone Strikes, WALL ST. J., Sept. 26, 2012, http://online.wsj.com/article/SB10000872396390444100404577641520858011452.html.
(264.) The George W. Bush Administration relied on the influential Parks Memorandum to invoke this reasoning and justify targeting individuals who posed a direct threat to American citizens in peacetime. BLUM & HEYMANN, supra note 21, at 78. In 2010, State Department Legal Advisor Harold Koh appeared to use similar reasoning to defend the Obama Administration's drone strikes, declaring that a state involved in either "armed conflict or legitimate self-defense" need not provide citizen-targets legal process before using lethal force against them. Harold Hongju Koh, Legal Adviser, U.S. Dep't of State, Keynote Address at the Annual Meeting of the American Society of International Law (Mar. 25, 2010) (transcript available at http://www.state.gov/s/l/releases/remarks/139119.htm). But see Michael Lewis, Why IHL and Not Self-Defense Should Be Considered the Legal Basis for the Awlaki Operation, LAWFARE (Sept. 30, 2011, 3:41 PM), http://www.lawfareblog.com/2011 /09/guest-post-from-mike-lewis-on-awlaki-and-neutrality-law.
(265.) It is well accepted that the inherent right to self-defense is restricted to what is necessary and proportionate to repel an attack. Baker, supra note 177, at 33-34266.
(266.) Dehn & Heller, supra note 17, at 176 (Dehn, Opening Statement).
(267.) MELZER, supra note 22, at 423.
(268.) For a discussion of the government's obligation to exercise due diligence in apprehending a suspect fleeing prosecution, see Bruce A. Green, "Hare and Hounds": The Fugitive Defendant's Constitutional Right To Be Pursued, 56 BROOK. L. REV. 439 (1990).
(269.) The protections of the Due Process Clause are not limited to citizens: "No person shall be ... deprived of life, liberty, or property, without due process of law." U.S. CONST. amend. V.
(270.) David Cole, Are Foreign Nationals Entitled to the Same Constitutional Rights as Citizens?, 25 T. JEFFERSON L. REV. 367, 370 (2003). But the Supreme Court has also permitted foreign nationals to be treated differently on account of race. Id. at 368-69.
(271.) See Jed Rubenfeld, The End of Privacy, 61 STAN. L. REV. 10l, 151 (2008) ("Our Constitution does not protect people outside this country in the way it protects people inside."); see also Al-Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010) (borrowing a multi-factor analysis from Boumediene that includes examination of the citizenship of the detainee, and effectively finding that where the government apprehends an alien abroad and detains him within a theater of war, habeas does not apply); People's Mojahedin Org. of Iran v. U.S. Dep't of State, 182 F.3d 17, 22 (D.C. Cir. 1999) (declaring that a foreign national "without property or presence in this country has no constitutional rights, under the due process clause or otherwise").
(272.) Robert Miniter, Was Obama Right To Kill Awlaki?, DAILY BEAST (Sept. 30, 2011, 4:10 PM), http://www.thedailybeast.com/articles/2011/09/30/anwar-al-awlaki-and-why -president-barack-obama-is-right-to-kill-u-s-citizens.html; see also Rick "Ozzie" Nelson & Ben Bodurian, A Growing Terrorist Threat? Assessing "Homegrown" Terrorism in the United States, CENTER FOR STRATEGIC & INT'L STUD. (Mar. 2010), http://www.csis.org /files/publication/100304_Nelson_GrowingTerroristThreat_Web.pdf (describing five incidents from 2009, including the recruitment of two dozen young Somali Americans to fight for al-Shabaab, as part of a pattern of rising "homegrown" terrorism).
(273.) See Charlie Savage, Secret U.S. Memo Made Legal Case To Kill a Citizen, N.Y. TIMES, Oct. 8, 2011, http://www.nytimes.com/2011/10/09/world/middleeast/secret-us-memo-made-legal-case -to-kill-a-citizen.html.
(274.) A Call to Courage: Reclaiming Our Liberties Ten Years After 9/11, ACLU 9 (Sept. 2011), http://www.aclu.org/files/assets/acalltocourage.pdf.
(275.) White House officials speaking on condition of anonymity have acknowledged only that Awlaki's citizenship required that the President grant special approval to Awlaki's placement on the CIA's target list. Greg Miller, Muslim Cleric Aulaqi Is 1st U.S. Citizen on List of Those CIA Is Allowed To Kill, WASH. POST, Apr. 7, 2010, http://www.washingtonpost.com/wp -dyn/content/article/2010/04/06/AR2010040604121.html.
(276.) See John Yoo, Assassination or Targeted Killings After 9/11, 56 N.Y.L. SCH. L. REV. 57, 63-69 (2011).
(277.) For example, the Obama Administration has reportedly constructed an advanced blueprint called a "disposition matrix" to aid in the continued targeting of terrorists. Greg Miller, Plan for Hunting Terrorists Signals U.S. Intends To Keep Adding Names to Kill Lists, WASH. POST, Oct. 23, 2012, http://www.washingtonpost.com/world/national-security/plan-for-hunting -terrorists-signals-us-intends-to-keep-adding-names-to-kill-lists/2012/10/23/4789b2ae-18b3 -11e2-a55c-39408fbe6a4b_story.html.
(278.) Adam Entous, Special Report--How the White House Learned To Love the Drone, U.K. REUTERS (May 19, 2010, 3:03 AM), http://uk.reuters.com/article/2010/05/19/uk-pakistan -drones-idUKTRE64H5U720100519.
(279.) In May 2010, U.S. counterterrorism officials stated that since the summer of 2008, CIA drones had killed approximately 500 foreign militants in Pakistan, of whom 14 were considered top-tier militant targets, and another 25 mid- to high-level targets. Id. In August 2ml, unidentified CIA agents admitted that since May 2010, drones had killed more than 600 militants. Scott Shane, C.I.A. Is Disputed on Civilian Toll in Drone Strikes, N.Y. TIMES, Aug. at, 2011, http://www.nytimes.com/2011/08/12/world/asia/12drones.html.
(280.) Peter Bergen & Jennifer Rowland, Civilian Casualties Plummet in Drone Strikes, CNN (July 14, 2012, 12:20 PM), http://www.cnn.com/2012/07/13/opinion/bergen-civilian -casualties/index.html.
Yale Law School, J.D. 2024; Duke University, B.A. 2009. I am indebted to Professor Owen Fiss for the seminar that inspired this Note and his insightful feedback on earlier drafts; to Professor Steven Duke for his thoughtful comments; to my exceptional lead editor Amanda Lee and The Yale Law Journal for invaluable editorial assistance; and to Adam Hockensmith for encouraging the ideas from their inception.
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|Title Annotation:||IV. The Constitutionality of Modern-Day Outlawry through Conclusion, with footnotes, p. 760-780|
|Author:||Chong, Jane Y.|
|Publication:||Yale Law Journal|
|Date:||Dec 1, 2012|
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