020413 DOJ White Paper

The Due Process Clause would not prohibit a lethal operation of the sort contemplated here. In Hamdi, a plurality of the Supreme Court used the Mathews v. Eldridge balancing test to analyze the Fifth Amendment due process rights of a U.S. citizen who had been captured on the battlefield in Afghanistan and detained in the United States, and who wished to challenge the government's assertion that he was part of enemy forces. The Court explained that the "process due in any given instance is determined by weighing 'the private interest that will be affected by the official action' against the Government's asserted interest, 'including the function involved' and the burdens the Government would face in providing greater process." Hamdi, 542 U.S. at 529 (plurality opinion) (quoting Mathews v. Eldridge, 424 U.S. 319,335 (1976)). The due process balancing analysis applied to determine the Fifth Amendment rights of a U.S. citizen concerning law-of-war detention supplies the framework for assessing the process due a U.S. citizen who is a senior operational leader of an enemy force planning violent attacks against Americans before he is subjected to lethal targeting.

In the circumstances considered here, the interests on both sides would be weighty. See Hamdi, 542 U.S. at 529 (plurality opinion) ("It is beyond question that substantial interests lie on both sides of the scale in this case."). An individual's interest in avoiding erroneous deprivation of his life is "uniquely compelling." See Ake v. Oklahoma, 470 U.S. 68, 178 (1985) ("The private interest in the accuracy of a criminal proceeding that places an individual's life or liberty at risk is almost uniquely compelling."). No private interest is more substantial. At the same time, the government's interest in waging war, protecting its citizens, and removing the threat posed by members of enemy forces is also compelling. Cf. Hamdi, 542 U.S. at 531 (plurality opinion) ("On the other side of the scale are the weighty and sensitive governmental interests in ensuring that those who have fought with the enemy during a war do not return to battle against the United States."). As the Hamdi plurality observed, in the "circumstances of war," "the risk of erroneous deprivation of a citizen's liberty in the absence of sufficient process ... is very real," id. at 530 (plurality opinion), and, of course, the risk of erroneous deprivation of a citizen's life is even more significant. But, "the realities of combat" render certain uses of force "necessary and appropriate," including force against U.S. citizens who have joined enemy forces in the armed conflict against the US and whose activities pose an imminent threat of violent attack against the United States - and "due process analysis need not blink at those realities." Id. at 531 (plurality opinion). These same realities must also be considered in assessing "the burdens the Government would face in providing greater process" to a member of enemy forces. Id. at 529, 531 (plurality opinion).

Given these interests and practical considerations, the United States would be able to use lethal force against a U.S. citizen, who is located outside the United States and is an operational leader continually planning attacks against U.S. persons and interests, in at least the following circumstances: (1) where an informed, high-level official of the. U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) where a capture operation would be infeasible—and where those conducting the operation continue to monitor whether capture becomes feasible; and (3) where such an operation would be conducted consistent with applicable law of war principles. In these circumstances, the "realities" of the conflict and the weight of the government's interest in protecting its citizens from an imminent attack are such that the Constitution would not require the government to provide further process to such a U.S. citizen before using lethal force. Cf. Hamdi, 542 U.S. at 535 (plurality opinion) (noting that the Court "accord[s] the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of war, and... the scope of that discretion necessarily is wide"); id. at 534 (plurality opinion) ("The parties agree that initial captures on the battlefield need not receive the process we have discussed here; that process is due only when the determination is made to continue to hold those who have been seized.") (emphasis omitted).

Certain aspects of this legal framework require additional explication. First, the condition that an operational leader presents an "imminent" threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future. Given the nature of, for example, the terrorist attacks on September 11, in which civilian airliners were hijacked to strike the World Trade Center and the Pentagon, this definition of imminence, which would require the United States to refrain from action until preparations for an attack are concluded, would not allow the United States sufficient time to defend itself. The defensive options available to the United States may be reduced or eliminated if al-Qa'ida operatives disappear and cannot be found when the time of their attack approaches. Consequently, concerning al-Qa'ida leaders who are continually planning attacks, the United States is likely to have only a limited window of opportunity within which to defend Americans in a manner that has both a high likelihood of success and sufficiently reduces the probabilities of civilian casualties. See Michael N. Schmitt, State-Sponsored Assassination in International and Domestic Law, 17. Yale J. Int'l L. 609, 648 (1992).[18] Furthermore, a "terrorist 'war' does not consist of a massive attack across an international border, nor does it consist of one isolated incident that occurs and is then past. It is the drawn-out patient, sporadic pattern of attacks. It is very difficult to know when or where the next incident will occur." Gregory M. Travalio, Terrorism, International Law, and the Use of Military Force, 18 Wis. Int'l L.J. 145, 173 (2000); see also Testimony of Attorney-General Lord Goldsmith, 660 Hansard. H.L. (April 21, 2004) 370 (U.K.), available at publications.parliament.uk[19] (what constitutes an imminent threat "will develop to meet new circumstances and new threats .... It must be right that states can act in self-defense in circumstances where there is evidence of further imminent attacks by terrorist groups, even if there is no specific evidence of where such an attack will take place or of the precise nature of the attack."). Delaying action against individuals continually planning to kill Americans until some theoretical end-stage of the planning for a particular plot would create an unacceptably high risk that the action would fail and that American casualties would result.

By its nature, therefore, the threat posed by al-Qa'ida and its associated forces demands a broader concept of imminence in judging when a person continually planning terror attacks presents an imminent threat, making the use of force appropriate. In this context, imminence must incorporate considerations of the relevant window of opportunity, the possibility of reducing collateral damage to civilians, and the likelihood of heading off future disastrous attacks on Americans. Thus, a decision-maker determining whether an al-Qa'ida operational leader presents an imminent threat of violent attack against the United States must take into account that certain members of al-Qa'ida (including any potential target of lethal force) are continually plotting attacks against the United States; that al-Qa'ida would engage in such attacks regularly to the extent it were able to do so; that the U.S. government may not be aware of all al-Qa'ida plots as they are developing and thus cannot be confident that none is about to occur; and that, in light of these predicates, the nation may have a limited window of opportunity within which to strike in a manner that both has a high likelihood of success and reduces the probability of American casualties.

With this understanding, a high-level official could conclude, for example, that an individual poses an"imminent threat of violent attack against the United States where he is an operational leader of al-Qa'ida or an associated force and is personally and continually involved in planning terrorist attacks against the United States. Moreover, where the al-Qa'ida member in question has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member's involvement in al-Qa'ida's continuing terrorist campaign against the United States would. support the conclusion that the member poses an imminent threat.

Second, regarding the feasibility of capture, capture would not be feasible if it could not be physically effectuated during the relevant window of opportunity or if the relevant country were to decline to consent to a capture operation. Other factors such as undue risk to U.S. personnel conducting a potential capture operation also could be relevant. Feasibility would be a highly fact-specific and potentially time-sensitive inquiry.

Third, it is a premise here that any such lethal operation by the United States would comply with the four fundamental law-of-war principles governing the use of force: necessity, distinction, proportionality, and humanity (the avoidance of unnecessary suffering). See, e.g., United States Air Force, Targeting, Air Force Doctrine Document 2-1.9,[20] at 88 (June 8, 2006); Dinstein, Conduct of Hostilities[21] at 16-20, 115-16, 119-23; see also 2010 Koh ASIL Speech. For example, it would not be consistent with those principles to continue an operation if anticipated civilian casualties would be excessive in relation to the anticipated military advantage. Chairman of the Joint Chiefs of Staff Instruction 5810.01D, Implementation of the DoD Law of War Program[22] ^ 4.a, at 1 (Apr. 30,2010). An operation consistent with the laws of war could not violate the prohibitions against treachery and perfidy, which address a breach of confidence by the assailant. See, e.g., Hague Convention IV,[23] Annex, art. 23(b), Oct. 18, 1907, 36 stat 2277,2301-02 ("[I]t is especially forbidden ... [t]o kill or wound treacherously individuals belonging to the hostile nation or army ...."). These prohibitions do not, however, categorically forbid the use of stealth or surprise, nor forbid attacks on identified individual soldiers or officers. See U.S. Army Field Manual 27-10, The Law of Land Warfare, ¶ 31 (1956)[24] (article 23(b) of the Annex to the Hague Convention IV does not "preclude attacks on individual soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, or else-where"). And the Department is not aware of any other law-of-war grounds precluding use of such tactics. See Dinstein, Conduct of Hostilities at 94-95, 199; Abraham D. Sofaer, Terrorism, the Law, and the National Defense, 126 Mil. L. Rev. 89, 120-21 (1989).[25] Relatedly, "there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict—such as pilotless aircraft or so-called smart bombs—as long as they are employed in conformity with applicable laws of war." 2010 Koh ASIL Speech. Further, under this framework, the United States would also be required to accept a surrender if it were feasible to do so.

In sum, an operation in the circumstances and under the constraints described above would not result in a violation of any due process rights.

Similarly, assuming that a lethal operation targeting a U.S. citizen abroad who is planning attacks against the United States would result in a "seizure" under the Fourth Amendment, such an operation would not violate that Amendment in the circumstances posited here. The Supreme Court has made clear that the constitutionality of a seizure is determined by "balanc[ing] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Tennessee v. Garner, 471 US. 1, 8 (1985) (internal quotation marks omitted); accord Scott v. Harris, 550 U.S. 372, 383 (2007). Even in domestic law enforcement operations, the Court has noted that "[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force." Garner, 471 U.S. at 11. Thus, "if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given." Id. at 11-12.

The Fourth Amendment "reasonableness" test is situation-dependent. Cf. Scott, 550 U.S. at 382 ("Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer's actions constitute 'deadly force.'"). What would constitute a reasonable use of lethal force for purposes of domestic law enforcement operations differs substantially from what would be reasonable in the situation and circumstances discussed in this white paper. But at least in circumstances where the targeted person is an operational leader of an enemy force and an informed, high-level government official has determined that he poses an imminent threat of violent attack, against the United States, and those conducting the operation would carry out the operation only if capture were infeasible, the use of lethal force would not violate the Fourth Amendment. Under such circumstances, the intrusion on any Fourth Amendment interests would be outweighed by the "importance of the governmental interests [that] justify the intrusion," Garner, 471 U.S. at 8—the interests in protecting the lives of Americans.

Finally, the Department notes that under the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional consideration. It is well established that "[matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention," Haig v. Agee, 453 U.S. 280,292 (1981), because such matters "frequently turn on standards that defy judicial application," or "involve the exercise of a discretion demonstrably committed to the executive or legislature," Baker v. Can, 369 U.S. 186,211 (1962). Were a court to intervene here, it might be required inappropriately to issue an ex ante command to the President and officials responsible for operations with respect to their specific tactical judgment to mount a potential lethal operation against a senior operational leader of al-Qa'ida or its associated forces. And judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.

Although section 1119(b) refers only to the "punishments]" provided under sections 1111, 1112, and 1113, courts have held that section 1119(b) incorporates the substantive elements of those cross-referenced provisions of title 18. See, e.g., United States v. Wharton,[30] 320 F.3d 526, 533 (5th Cir. 2003); United States v. White, 51 F. Supp. 2d 1008,1013-14 (E.D. Cal. 1997). Section 1111 of title 18 sets forth criminal penalties for "murder," and provides that "[m]urder is the unlawful killing of a human being with malice aforethought." 18 U.S.C. § 1111(a). Section 1112 similarly provides criminal sanctions for "[m]anslaughter," and states that "[mjanslaughter is the unlawful killing of a human being without malice:" Id.§ 112(a). Section 1113 provides criminal penalties for "attempts to commit murder or manslaughter." Id. § 1113. It is therefore clear that section 1119(b) bars only "unlawful killing."

Guidance as to the meaning of the phrase "unlawful killing" in sections 1111 and 1112—and thus for purposes of section 1119(b)—can be found in the historical understandings of murder and manslaughter. That history shows that states have long recognized justifications and excuses to statutes criminalizing "unlawful" killings.[31] One state court, for example, in construing that state's murder statute, explained that "the word 'unlawful' is a term of art" that "connotes a homicide with the absence of factors of excuse or justification." People v. Frye, 10 Cal. Rptr. 2d 217,221 (Cal. Ct. App. 1992).[32] That court further explained that the factors of excuse or justification in question include those that have traditionally been recognized. Id. at 221 n.2. Other authorities support the same conclusion. See, e.g., Mullaney v. Wilbur, 421 U.S. 684, 685 (1975)[33] (requirement of "unlawful" killing in Maine murder statute meant that killing was "neither justifiable nor excusable"); cf. also Rollin M. Perkins & Ronald N. Boyce, Criminal Law 56 (3d ed. 1982)[34] ("Innocent homicide is of two kinds, (1) justifiable and (2) excusable."). Accordingly, section 1119 does not proscribe killings covered by a justification traditionally recognized under the common law or state and federal murder statutes. "Congress did not intend [section 1119] to criminalize justifiable or excusable killings." White, 51 F. Supp. 2d at 1013.

The public authority justification is well-accepted, and it may be available even in cases where the particular criminal statute at issue does not expressly refer to a public authority justification. Prosecutions where such a "public authority" justification is invoked are understandably rare, see American Law Institute Model Penal Code and Commentaries § 3.03 Comment 1, at 23-24 (1985); cf. Visa Fraud Investigation, 8 Op. O.L.C. 284, 285 n.2, 286 (1984), and thus there is little case law in which courts have^ analyzed the scope of the justification with respect to the conduct of government officials. Nonetheless, discussions in the leading treatises and in the Model Penal Code demonstrate its legitimacy. See 2 Wayne R. LaFave, Substantive Criminal Law § 10.2(b), at 135 (2d ed. 2003); Perkins & Boyce, Criminal Law at 1093 ("Deeds which otherwise would be criminal, such as taking or destroying property, taking hold of a person by force and against his will, placing him in confinement, or even taking his life, are not crimes if done with proper public authority."); see also Model Penal Code § 3.03(l)(a), (d), (e), at 22-23 (proposing codification of justification where conduct is "required or authorized by," inter alia, "the law defining the duties or functions of a public officer," "the law governing the armed services or the lawful conduct of war," or "any other provision of law imposing a public duty"); National Commission on Reform of Federal Criminal Laws, A Proposed New Federal Criminal Code § 602(1) (1971) ("Conduct engaged in by a public servant in the course of his official duties is justified when it is required or authorized by law."). And the Department's Office of Legal Counsel ("OLC") has invoked analogous rationales when it has analyzed whether Congress intended a particular criminal statute to prohibit specific conduct that otherwise falls within a government agency's authorities. See, e.g., Visa Fraud Investigation, 8 Op. O.L.C. at 287-88 (concluding that a civil statute prohibiting issuance of visa to an alien known to be ineligible did not prohibit State Department from issuing such a visa where "necessary" to facilitate an important Immigration and Naturalization Service undercover operation carried out in a "reasonable" fashion).

The public authority justification would not excuse all conduct of public officials from all criminal prohibitions. The legislature may design some criminal prohibitions to place bounds on the kinds of governmental conduct that can be authorized by the Executive. Or the legislature may enact a criminal prohibition in order to limit the scope of the conduct that the legislature has otherwise authorized the Executive to undertake pursuant to another statute. See, e.g., Nardone v. United States, 302 U.S. 379, 384 (1937) (federal statute proscribed government wiretapping). But the generally recognized public authority justification reflects that it would not make sense to attribute to Congress the intent to criminalize all covered activities undertaken by public officials in the legitimate exercise of their otherwise lawful authorities, even if Congress clearly intends to make those same actions a crime when committed by persons not acting pursuant to public authority. In some instances, therefore, the best interpretation of a criminal prohibition is that Congress intended to distinguish persons who are acting pursuant to public authority from those Who are not, even if the statute does not make that distinction express. Cf. id. at 384 (federal criminal statutes should be construed to exclude authorized conduct of public officers where such a reading "would work obvious absurdity as, for example, the application of a speed law to a policeman pursuing a criminal or the driver of a fire engine responding to an alarm").[35]

The touchstone for the analysis whether section 1119 incorporates not only justifications generally, but also the public authority justification in particular, is the legislative intent underlying this statute. Here, the statute should be read to exclude from its prohibitory scope killings that are encompassed by traditional justifications, which include the public authority justification. The statutory incorporation of two other criminal statutes expressly referencing "unlawful" killings is one indication. See supra at 10-11. Moreover, there are no indications that Congress had a contrary intention. Nothing in the text or legislative history of sections 1111-1113 of title 18 suggests that Congress intended to exclude the established public authority justification from those justifications that Congress otherwise must be understood to have imported through the use of the modifier "unlawful" in those statutes. Nor is there anything in the text or legislative history of section 1119 itself to suggest that Congress intended to abrogate or otherwise affect the availability of this traditional justification for killings. On the contrary, the relevant legislative materials indicate that, in enacting section 1119, Congress was merely closing a gap in a field dealing with entirely different kinds of conduct from that at issue here.[36]

The Department thus concludes that section 1119 incorporates the public authority justification.[37] This paper turns next to the question whether a lethal operation could be encompassed by that justification and, in particular, whether that justification would apply when the target is a U.S. citizen. The analysis here leads to the conclusion that it would.

A lethal operation against an enemy leader undertaken in national self-defense or during an armed conflict that is authorized by an informed, high-level official and carried out in a manner that accords with applicable law of war principles would fall within a well established variant of the public authority justification and therefore would not be murder. See, e.g., 2 Paul H. Robinson,[Criminal Law Defenses § 148(a), at 208 (1984) (conduct that would violate a criminal statute is justified and thus not unlawful "[where the exercise of military authority relies upon the law governing the armed forces or upon the conduct of war"); 2 LaFave, Substantive Criminal Law § 10.2(c) at 136 ("another aspect of the public duty defense is where the conduct was required or authorized by 'the law governing the armed services or the lawful conduct of war'"); Perkins & Boyce, Criminal Law at 1093 (noting that a "typical instanceQ in which even the extreme act of taking human life is done by public authority" involves "the killing of an enemy as an act of war and within the rules of war").[38]

The United States is currently in the midst of a congressionally authorized armed conflict with al-Qa'ida and associated forces, and may act in national self-defense to protect U.S. persons and interests who are under continual threat of violent attack by certain al-Q'aida operatives planning operations against them. The public authority justification would apply to a lethal operation of the kind discussed in this paper if it were conducted in accord with applicable law of war principles. As one legal commentator has explained, "if a soldier intentionally kills an enemy combatant in time of war and within the rules of warfare, he is not guilty of murder," whereas, for example, if that soldier intentionally kills a prisoner of war - a violation of the laws of war—"then he commits murder." 2 LaFave, Substantive Criminal Law § 10.2(c), at 136; see also State v. Gut, 13 Minn. 341, 357 (1868) ("That it is legal to kill an alien enemy in the heat and exercise of war, is undeniable; but to kill such an enemy after he has laid down his arms, and especially when he is confined in prison, is murder."); Perkins & Boyce, Criminal Law at 1093 ("Even in time of war an alien enemy may not be killed needlessly after he has been disarmed and securely imprisoned...."). Moreover, without invoking the public authority justification by its terms, this Department's OLC has relied on the same notion in an opinion addressing the intended scope of a federal criminal statute that concerned the use of potentially lethal force. See United States Assistance to Countries that Shoot Down Civil Aircraft Involved in Drug Trafficking, 18 Op. O.L.C. 148, 164 (1994) (concluding that the Aircraft Sabotage Act of 1984, 18 U.S.C. § 32(b)(2) (2006), which prohibits the willful destruction of a civil aircraft and otherwise applies to U.S. government conduct, should not be construed to have "the surprising and almost certainly unintended effect of criminalizing actions by military personnel that are lawful under international law and the laws of armed conflict").

The fact that an operation may target a U.S. citizen does not alter this conclusion. As explained above, see supra at 3, the Supreme Court has held that the military may constitutionally use force against a U.S. citizen who is part of enemy forces. See Hamdi, 542 U.S. at 518 (plurality opinion); id. at 587, 597 (Thomas, J. dissenting); Ex parte Quirin, 317 U.S. at 37-38 ("Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter [the United States] bent on hostile acts," may be treated as "enemy belligerents" under the law of war.). Similarly, under the Constitution and the inherent right to national self-defense recognized in international law, the President may authorize the use of force against a U.S. citizen who is a member of al-Qa'ida or its associated forces and who poses an imminent threat of violent attack against the United States.

In light of these precedents, the Department believes that the use of lethal force addressed in this white paper would constitute a lawful killing under the public authority doctrine if conducted in a manner consistent with the fundamental law of war principles governing the use of force in a non-intemational armed conflict. Such an operation would not violate the assassination ban in Executive Order No. 12333. Section 2.11 of Executive Order No. 12333 provides that "[n]o person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination." 46 Fed. Reg. 59,941,59, 952 (Dec. 4,1981). A lawful killing in self-defense is not an assassination. In the Department's view, a lethal operation conducted against a U.S. citizen whose conduct poses an imminent threat of violent attack against the United States would be a legitimate act of national self-defense that would not violate the assassination ban. Similarly, the use of lethal force, consistent with the laws of war, against an individual who is a legitimate military target would be lawful and would not violate the assassination ban.