Ryan Alford, whose forthcoming article I mentioned in a previous post, writes to clarify that his principal originalist argument against the al-Awlaki operation in that article is under the bill of attainder clause (Article I, Section 9), not the due process clause. He also points out this outstanding online symposium at Cato Unbound, featuring a shorter version of his argument (Sentence First, Verdict Afterward) and commentary by John Dehn, Carlton Lawson and Gregory McNeil.
Professor Alford explains:
[M]y argument [is] that the Bill of Attainder Clause does not ban killing [in wartime generally], but rather the authorization in advance of the killing the named person under any circumstances. An accused traitor can be killed on the battlefield (subject of course to the protections of the laws of war concerning surrender, etc.), but even a uniformed combatant adhering to the enemy (and located in their ranks) cannot be the subject of an order from the executive marking them out in advance for death under any and all circumstances (I explained in my paper why an executive act would also have been considered attainder in 1787, despite the fact that the clause names only bills).
I believe that this argument is well supported in my forthcoming article by the historical evidence of the Framers' response to contemporary English constitutional practice. Furthermore, during the colonial era, English subjects who had joined enemy forces (e.g. the Earls of Tyrone and Tyrconnell, who had joined the armies of Phillip III of Spain in advance of a planned invasion) had not been targeted pursuant to the laws of war. Instead they had been specifically named in Bills of Attainder on the basis of their (alleged) treason. This is the paradigm the Framers squarely rejected in the Bill of Attainder Clause-which, it should be noted, does not ban the killing of accused traitors (which under the right circumstances might be an act of legitimate self defense or of war) but rather the government's issuance of orders that authorize (and purportedly immunize) that killing in advance and without reservation, a killing which might otherwise be a violation of either the civil law or ius in bello principles. Accordingly, I also hold that John Yoo's analysis of the civil war advanced in the WSJ [note: and in the NRO column previously linked here] is clearly wrong; had this been acceptable practice, one might ask why were there no orders issued for the killing of specific confederate Generals?
The argument is spelled out further in Professor Alford’s Cato Unbound essay. Here’s the core of it:
A bill of attainder was an act of Parliament that condemned a citizen to death. These were so odious to the Framers that a ban on these acts was placed in the Constitution’s Article I, which states that “no bill of attainder … shall be passed” by either the federal government or the states. This is one of the few unconditional due process rights: whereas one is protected only against “unreasonable searches” or “excessive bail,” attainder was unambiguously abolished.
The reasons for the Framers’ uncompromising approach to attainder in the Constitution were demonstrated during the ratification debate in Virginia. Edmund Randolph (later the first Attorney General of the United States) condemned the attainder of the vicious Tory bandit Josiah Phillips, who had been accused in 1778 of numerous counts of arson and murder, and for (in the words of the bill) having “levied war against this Commonwealth.” “[W]hereas the . . . usual forms and procedures of the courts of law would leave the said good people for a long time exposed to murder and devastation,” he was attaindered by the General Assembly. Randolph believed that “a man, who was then a citizen, was deprived of his life thus,” and he promised that “if I conceived my country would passively permit a repetition of it . . . I would seek a means of expatriating myself from it.”
When the counterargument was made that Phillips was “a fugitive murderer and an outlaw . . . . [and] the enormity of his crimes did not entitle him to [due process],” John Marshall replied: “Can we pretend to the enjoyment of political freedom or security, when we are told that a man has been, by act of Assembly, struck out of existence without being confronted with his accusers and witnesses, without benefit of the law of the land?” Randolph and Marshall’s interventions were decisive: there is no recorded opposition to the ratification of the Constitution on the grounds of its absolute rejection of attainder. It is also significant that the clause was included after a vote at the Philadelphia Convention that was recorded in James Madison’s records as nemine contradicente, meaning it was approved after no man spoke against it.
While the clause explicitly bans bills of attainder, but not executive acts that would work the same evil, no respectable historical argument could be made that the Constitution allows the latter (by exclusio alterius) while abhorring the former. The Framers belonged to a legal and political tradition that was deeply concerned about overweening executive authority, and which fought relentlessly against the invocation of any prerogative related to matters of state for denying certain suspects due process. The Star Chamber (a court controlled by the executive branch), was a byword for tyranny for the revolutionary generation, and besides Locke, no one was cited in the revolutionary pamphlet literature more often than Edward Coke, who epitomized the struggle against the extraordinary prerogative and executive detention in the seventeenth century.
This is an important claim in that it shifts the argument away from the due process clause, where there are the problems John Yoo points out (namely that it may be hard, as an originalist matter, to explain why al-Awlaki got any less “process” than enemy soldiers on the battlefield, who clearly can be targeted). Many people may have an intuitive sense that there’s a difference between killing the enemy in battle, some of who happen to be U.S. citizens, and deliberately setting out to kill specific U.S. citizens. But this intuition is hard to align with the due process clause. It may be easier to coax out of the bill of attainder clause.
Posted at 7:00 AM