I would like to thank Professor Dehn for his thoughtful comments. There is much that we agree upon, and ample room for constructive engagement on the other matters at issue.
I agree that when considering the relevant Supreme Court precedent, it is important to pay close attention to the context of the decision when analyzing the scope of its holding. I believe that some further elucidation of the facts surrounding the litigation of the Prize Cases helps to explain why it unfortunately has not received the Court’s attention in the line of cases that flow from Hamdi. Distinguishing it would have been helpful to the analysis. It also helps explain why my position on the applicability of the Bill of Attainder Clause to the targeted killing of citizens is not foreclosed by those cases.
In the Prize Cases, the Court correctly concluded that the Civil War did not require the government to apply the legal framework of treason when disposing of the property of the purportedly seceded states’ citizens. This pragmatic approach appeared warranted after the nation had been split into two and each side possessed conventional armies. However, when those taking hostile action dispensed with the laws of war observed by uniformed soldiers of a purported belligerent state—as the Booth conspirators, for example, had done—they were then liable to be tried for treason. Ex Parte Milligan recognized that these trials must take place in Article III courts, which can be trusted to apply the protections of the Treason Clause. The alleged crimes of Anwar al-Awlaki are clearly more comparable to those of Josiah Phillips or John Surratt than the wrongs at issue in the Prize Cases; those latter cases also did not involve executions and accordingly did not implicate the Bill of Attainder Clause.
I agree wholeheartedly with Dehn that congressional authorization for military action is a fundamental principle of our constitutional order, so much so that I am deeply troubled by the president’s recent assertion that he can commit American forces to military action in Libya without even a debate in Congress, and in clear contravention of the War Powers Resolution of 1973. However, the Bill of Attainder and Treason Clauses were clearly intended to be applicable even after a congressional declaration of war or similar initiation of hostilities. The act of treason (the Constitution establishes this as the authoritative and exhaustive definition) is only committed when one adheres to or provides aid and comfort to the enemies of the United States. In the formal legal sense of the word, a state only has enemies in wartime. This is conclusive evidence that the Framers intended that the clauses apply in the course of hostilities, as James Madison’s actions with respect to “Clark the Spy” during the War of 1812 also indicate.
Most importantly, it is vital to understand that the Framers’ motivation in drafting the Bill of Attainder and Treason Clauses was precisely to prevent any branch of government from being able to label an alleged traitor during wartime or a rebellion as an enemy or an outlaw, i.e., a particular person who could then be killed on sight under any circumstances, even when attempting surrender, without judicial process. This, of course, had also been the impetus for the affirmation of the rights contained in Clause 29 of the Magna Carta, which the Framers sought to indicate (in the Ninth Amendment) had been retained by the people. Neither wars, rebellions, nor any other emergency could suspend this section of the Great Charter or provide exceptions to its ironclad guarantee, which was particularly dear to the Founding Fathers.
Likewise, Congress cannot itself create exceptions to the Bill of Attainder Clause, which had been designed to extend the reach of the Magna Carta’s ban on extrajudicial death warrants to encompass legislative acts. This Clause binds Congress explicitly and has no exceptions. Congress cannot approve of or delegate an action that it is constitutionally forbidden to perform itself. Accordingly, no form of Congressional approval for an extrajudicial order to kill a citizen can ever render it legal.
I would also note in passing that I do not believe that the AUMF permits military action in Yemen, although as a legal historian, I lack the scholarly qualifications to come to a definitive conclusion on the matter. Still, I would note that there is evidence that this is the way Congress has interpreted that statute: one section of the recent Resolution of the House of Representatives to reauthorize the USA-PATRIOT Act would grant the president the power to use military force worldwide against suspected terrorists and the states that purportedly harbor them, in what I fear is a catastrophic abnegation of Congress’ responsibilities under Article I.
Finally, I have concluded that Supreme Court precedent is not particularly helpful on the question of the attainder of alleged traitors. Here, we are confronted with a constitutional violation so severe that it has never occurred in the history of our republic: no Congress (much less a president) has even attempted to attaint a citizen since 1787. Accordingly, by necessity we must return to the question of the Framers’ understanding of the issue, rather than attempting to put together a patchwork of precedents—none of which are squarely on point—to determine whether or not an executive death warrant should be deemed lawful. While the latter approach may be a useful exercise when attempting to predict the Court’s ultimate decision, I believe that constitutional scholars must aspire to be oracles of the law, rather than merely prognosticators of potentially problematic decisions to come.
I also believe that legal scholars should reject the presumption that the courts’ decisions are correct statements of the law when these fail to respect the basic guarantees of our Constitution. Chief Justice Taney’s plurality opinion in Dred Scott v. Sandford concluded that an African-American could never be the citizen of any state. This was inconsistent with original intent and was never the correct interpretation of the constitutional text; it did not become any more correct for having been announced from the bench. (I sincerely hope that someday the plurality opinion in Hamdi, even though the majority of its holding has no legal force owing to the partial concurrence, is recognized as a blot on the escutcheon of American jurisprudence.) In situations that are either novel or where the Court has gone astray, scholars must return to the more fundamental task of faithfully interpreting the original meaning of the Constitution.
Should we do so in this case, we will quickly recognize that al-Awlaki has been attainted, something which is impermissible even after a congressional declaration of hostilities, whether or not it extends to Yemen. Our Constitution requires that he be tried in an Article III court, in absentia if necessary. To do otherwise would be to ignore the clear meaning of the constitutional text and instead to delude ourselves with the sonorous scrutiny of a morass of irrelevant technicalities. We must not preoccupy ourselves with legal fiddling while our liberties burn.