The New York Times ran a story yesterday that provides an account of the Obama Administration’s legal justification for its drone strike killing of Anwar al-Awlaki, the first US citizen to be so executed. The recent leak of a US Justice Department white paper about the program led Senator Rand Paul to write to Attorney General Eric Holder for clarification, and Holder’s vague response led Paul to filibuster John O’Brennan’s nomination to be Director of the CIA. This post focuses on the legal code that the Office of Legal Counsel (OLC) attorneys responsible for forming policy, David Barron and Martin Lederman, zeroed in on: 18 USC § 1119 – Foreign murder of United States nationals. It reads:
(a) Definition.— In this section, “national of the United States” has the meaning stated in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(22)).
(1) No prosecution may be instituted against any person under this section except upon the written approval of the Attorney General, the Deputy Attorney General, or an Assistant Attorney General, which function of approving prosecutions may not be delegated. No prosecution shall be approved if prosecution has been previously undertaken by a foreign country for the same conduct.(2) No prosecution shall be approved under this section unless the Attorney General, in consultation with the Secretary of State, determines that the conduct took place in a country in which the person is no longer present, and the country lacks the ability to lawfully secure the person’s return. A determination by the Attorney General under this paragraph is not subject to judicial review.
The Times article provides this backstory:
As they researched the rarely invoked overseas-murder statute, Mr. Barron and Mr. Lederman discovered a 1997 district court decision involving a woman who was charged with killing her child in Japan. A judge ruled that the terse overseas-killing law must be interpreted as incorporating the exceptions of its domestic-murder counterpart, writing, “Congress did not intend to criminalize justifiable or excusable killings.”
And by arguing that it is not unlawful “murder” when the government kills an enemy leader in war or national self-defense, Mr. Barron and Mr. Lederman concluded that the foreign-killing statute would not impede a strike. They had not resorted to the Bush-style theories they had once denounced of sweeping presidential war powers to disregard Congressionally imposed limitations.
As noted in the title, I am not an attorney, but this is what strikes me as interesting: c (1) makes it terribly clear that no prosecution would ever go forward. I suppose one could point out that Nixon fell when he tried to relieve his Attorney General of his office, and then realized that it was not politically feasible. So my claim that it would never go forward needs to be tempered: it is really unlikely to go forward.
Why do I find that interesting? To me the juxtaposition of 18 USC § 1119 c (1) with the OLC’s legal assessment underscores how impossibly intertwined are politics and law. Do not misunderstand: I labor under no illusion that “the law” is “above” politics. That the President has no serious concern that someone in the chain of command, from the soldier pulling the trigger to the President, being prosecuted under 18 USC § 1119 is immaterial: the OLC was tasked with providing legal cover for the drone strike. And that legal cover is inseparable from political cover.
I have written elsewhere about research that explains why wealthy democracies will increasingly use technology to trade-off the lives of their soldiers for those of non-combatant foreigners (here, here, and here). The short answer: it is politically wise to do so, if a politician wishes to retain office. Here we find two OLC attorneys loathe to fall back on the legal arguments of the Bush Adminstration’s OLC that both they and Obama publicly repudiated. But legal cover was “needed,” as I see it, for mostly political, not legal, reasons.