The Barron Memo released last summer — if “released” means badly mangled — is an interesting literary production. Its full title is “Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi.” Here, David J. Barron, who was acting assistant attorney general in the Office of Legal Counsel (OLC), argued as of July 16, 2010, that no “law” can prevent the executive branch from killing an American citizen said to be cooperating with foreign enemies during an alleged war.
Barron strikes all the right notes of a humane and world-weary liberal imperialism. His heavily redacted memo thus differs outwardly from those of an earlier administration (less metaphorical blood on the juridical knife, for example).
At the (belated) outset we meet with grim foreboding, as Barron frets that some federal official, somewhere, might be charged with a crime, under some long-lost, forgotten law. He calls up fire, and quickly; hoard foregathered, law-sayings unlocked, his word-crafty wit fetters fears, boldly knocking naysayers. We infer from an early remark in section II that section I, missing, described operations contemplated.
Killing no murder
Right off, Barron lifts from law-hoard 18 U.S.C. 1119, a congressional statute making it a crime for any American, overseas, to kill another American, overseas. This cannot stand. Delving widely for doctrine, Barron seeks a broad principle of American law exempting federal agencies from statutes state and federal and hits upon a “public authority justification.” This means that if a public official, acting in good faith, kills someone, said official can draw on many “justifications and excuses.” After all, “unlawful homicide” (where unlawful is a “term of art”) implies lawful homicide. (Fair enough, had the concept not broken free long ago from any commonsense moorings.) This part is not Barron’s fault. Bringing his state knives to a federal gunfight, he now “incorporates” his “public authority justification” upwards, rather unusually.
Henceforth the question is “whether a particular criminal law applies to specific conduct undertaken by government agencies pursuant to their authorities” — or how far do justifying and excusing go? Somehow a doctrine already meant to reverse the burden of proof in the states becomes the key to reading congressional statutes.
Barron allows that the public-authority justification “does not excuse all conduct of public officials from all criminal prohibitions.” But our happiness washes away when he urges that it “would not make sense” to think that Congress (in U.S.C. 1119) could really have wanted to keep American officials, from (say) killing Americans overseas. Barron calls on the trivial analogy of high-speed car chases in illustration. In footnote 16, slightly redacted, we meet an old acquaintance: United States Assistance to Countries that Shoot Down Civil Aircraft Involved in Drug Trafficking (OLC Opinion, 1984). It sounds harmless enough — as if wily foreigners are doing it — but the sentence quoted from the same source in Torture Memo I (January 22, 2002) suggests otherwise: “a USG [U.S. Government] officer or employee may use deadly force against civil aircraft without violating [a criminal statute] if he or she reasonably believes that the aircraft poses a threat of serious physical harm … to another person.” (My italics.) Excuses abound; justification goes walkabout.
Soon more statutes appear in which we (citizens) get to be killed in their (officials’) line of duty. Barron notes that these laws “often prescribe that an officer acting in the performance of his official duties must reasonably have believed that such force was ‘necessary.’” (My italics) This “must” is ambiguous, to say the least. Is it a logical “must” or an ethical one? (Things have grown very tiresome, if English modal verbs are “terms of art.”)
U.S. persons needing killing
Barron gets down to specifics, namely, Anwar al-Alauqi, U.S. citizen resident in Yemen, and a “contemplated” Defense Department or CIA “operation” as “represented” to Barron by those agencies. Barron gives himself at least seven such escape clauses. Did he perhaps think that the agencies were lying to him, a federally employed attorney? Mostly, though, it seems they can be trusted to kill nonofficial Americans in good faith, and thus “lawfully.”
We soon learn that war automatically entails the public-authority justification. A footnote cites the Israeli Supreme Court (a worthy source) on excuses under the “laws” of war. The Aircraft Shooting-Down memo reappears to show how ordinary U.S. statutes cannot keep the U.S. military from doing things in a nonwar, if international law allows them (!) or the “laws” of war allow them in war. In addition, in a “war” against nonstate organizations, both inherent executive powers and those arising from Congress’s Authorization for the Use of Military Force (AUMF, 2001) evidently override all other law. Quick references to Quirin (1942) and Hamdi (2004) get Citizen al-Alauqi offstage and, anyway, the agencies “represent” him as a participant ally of al-Qaeda. (Farther down, he becomes a director of operations against the United States.) Inevitably, the overrated Lieber Code (1863), Lincoln’s instructions on the wartime conduct of the Union army, is mentioned.
Since the AUMF is geographically silent, the battlefield can include Yemen or the moon. Hacking through heaps of domestic and international law and “laws” of war, Barron admits that “we must look to principles and statements from analogous contexts.” (My italics) Some might see this as akin to forum shopping. Cases on Yugoslavia provide “precedents” from undeclared wars involving sundry U.S. legal whimsies. To some end, Barron cites an International Court of Justice advisory opinion (1996) on the legality of using nuclear “weapons.” A discussion of humanitarian law quickly follows, perhaps to highlight liberal imperialism.
Barron mentions four U.S. targeting principles: “military necessity, humanity …, proportionality, and distinction” in unlikely connection with American airpower (for comic relief?). A note informs us that killing al-Alauqi raises no Fourth Amendment issues, since capturing him is “infeasible.” The logic is obscure. Guided by Defense Department representations, Barron foresees a high-tech strike without “disproportionate” casualties. On page 30, two paragraphs are missing, as are all of 31 and half of 32, making summary difficult. Visible words on page 30 reintroduce Barron’s “public authority” theme.
Page 33 has a third of a short paragraph, but vandals have removed six lines from a very long note. In the readable half of page 34, Congress could not have meant U.S.C. 1119 to prohibit official homicide and thus incorporation of public authority justification must be assumed. Forty percent of page 35 is gone, but a surviving sentence sees the anticipated operation as complying with “due process and the Fourth Amendment’s ‘reasonableness’ test for the use of deadly force.” Where to begin? There is no “reasonableness” test for deadly force in an amendment dealing with warrants and which does not require meditations on “reasonableness.” Such hobbies are sheer judicial invention. (Barron also dismisses the Fifth Amendment.)
Pages 36 and 37 survive. A fourth of 38, two-thirds of 39, and 40 percent of 40 are no more. Four lines have fled page 41. Nonetheless, we learn that no statute and no constitutional phrase, whatever its language, can thwart the “right” of the federal executive to kill people out of hand. (It is always good to know where we stand.) In getting here, Barron avoids appeal to the unitary executive theory, which so cluttered the Torture Memos. Yet despite his craft, the public-authority justification and its incorporation still seem rather shaky.
With citation overkill and vigilant forum shopping, the memo increasingly resembles its predecessors from George W. Bush’s presidency as standard OLC product. Unhappily, the leaps in the argument, great and small — from one undersupported proposition to another — undermine our will to believe. With its numerous absences and silences, the memo seems “true” only if we grant a great many things we should not grant.
Unluckily for us, Mr. Barron’s universal shield for violent official actors is indeed a rapidly advancing cancerous growth on American law and life. Continued militarization of standing police forces, carrying on metaphorical “wars” on drugs or whatever, has strengthened an ancient homicidal trend in domestic policing reaching back to the very founding of these peacetime occupation forces. American police homicides and their rationalizations potentially supply full-time work for American journalists (Radley Balko, William Grigg, and others). Between taser deaths and ordinary beatings and shootings, conscientious reporters (however few) get little rest. Barron must forgive Americans who fail to rejoice that American authorities’ “right” to do these things at home has “legal” uses across the water. (If this is liberal imperialist jurisprudence, liberalism has grown very ugly.)
Tirelessly sustaining the police, American courts worsen bad doctrines or create new ones. In terms of Americans’ freedoms and liberties the courts are (with few exceptions) fully engaged partisans from the wrong side. Blameless in this, Barron profits argumentatively from the results. His tour through great shed-loads of statutory debris has yielded him a liberal-securitarian (police-state) doctrine good enough for Americans and All Mankind.
We must thank Mr. Barron for making so clear the link between the public-authority justification and lethal American violence overseas — in a perfect exposition of postmodern erasure of distinctions between home and abroad. Worse luck, the number and scope of public-authority excuses, justifications, and exceptions can only grow, as federal officials carry out infinitely expanding “duties” — again, at home and abroad.
The hard work displayed in the Barron memo reflects the end to which it is ordered: the completion, at long last, on our shores, of a modern, abstract Hobbesian state — albeit unwanted, unwelcome, and unbidden.
This article was originally published in the March 2015 edition of Future of Freedom.