Illustrating Glenn Reynolds’s “Army of Davids” observation about how the internet enables ordinary but competent people to beat Big Media, Big Government, and other goliaths which, even if lacking in competence, formerly enjoyed a near-monopoly over public policy debate, back in 2008 blogger Dwight Sullivan pwned all the attorneys and Justices involved in a U.S. Supreme Court case about the constitutionality of a state executing a criminal defendant for raping a child. After the Court ruled unconstitutional the death penalty for child rape, in part because the federal government (supposedly) does not authorize it, Sullivan pointed out on his blog that both the Congress and the President had recently authorized the execution of members of the military who commit child rape. The Court ended up modifying its opinion to correct the error pointed out by Sullivan.
Meet Harvard law professor David Barron and Georgetown law professor Martin S. Lederman, the most recent legal “goliaths” to be felled by a blogger:
David Barron
Martin S. Lederman
Barron is a graduate of Harvard Law School. Even more impressive, Lederman is a graduate of Yale Law School. Both have impressive professional accomplishments, which together with their contacts within the progressive legal community in 2009 won them high legal posts in the Obama Administration. But even these highly credentialed law professors — Obama’s best and brightest in the field of constitutional law — have now been pwned by a law professor blogging from Australia.
As proof, consider this March 10 New York Times article addressing the legal work that went into the Administration’s conclusion that it had the constitutional authority to assassinate via a drone strike, rather than capture, a non-combatant U.S. citizen located in a foreign country (i.e., someone who though perhaps plotting harm against U.S. interests, is not presently engaged in an attack). As the article recounts, once the Administration developed an active interest in killing Anwar al-Awlaki (a U.S. citizen hiding in Yemen) in the aftermath of the attempted Christmas Day bombing in 2009, in early 2010 Barron and Lederman put together a memo concluding that there was no legal obstacle to using a drone strike to kill al-Awlaki (at least if he proved difficult to capture).
Much commentary so far on this article, for example, by Ann Althouse and Glenn Reynolds, has focused on the hypocrisy angle. Barron and Lederman found themselves in the uncomfortable position of arguing that the war power of the President is broad enough to justify killing rather than capturing a U.S. citizen who had not even been charged with a crime.This position was uncomfortable because just two years earlier they had published articles spanning more than 250 pages in the Harvard Law Review (see here and here) which attacked as unduly broad the view of the war power the Bush Administration used to justify mere enhanced interrogation (leaving no permanent harm) of captured terrorists who were citizens of foreign countries. As Althouse puts it: “Karma’s a bitch!” She adds: “isn’t it amusing to picture them — somewhere in the secret passageways of power — flop-sweating and frantic over the realization Oh, my God, we’re John Yoo!?”
But beyond the hypocrisy, it should not escape notice how these two towering figures of the progressive legal community were, in their actual analysis of the relevant law, pwned by a blogger. (Update: Patrick Frey has concurrently focused on this point, in an excellent post.) The New York Times article reveals that after completing a legal memorandum which concluded that “Mr. Awlaki was a lawful target” for assassination, Barron and Lederman “grew uneasy . . ., particularly after reading a legal blog that focused on a statute that bars Americans from killing other Americans overseas.” As Marcy Wheeler and others have pointed out, although the New York Times did not credit him by name (or, apparently, even interview him), the person who wrote the blog which made Barron and Lederman uneasy is Kevin Jon Heller, a law professor in Australia.
Kevin Jon Heller
Even though one would think lawyers in America would be somewhat more familiar with American law than a law professor in Australia, it was left to Heller to point out that there’s a statute protecting U.S. citizens from being killed in foreign countries by other U.S. citizens. Just a day after reading in the Washington Post that al-Awlaki had been added to the CIA “hit list” despite being a U.S. citizen, on April 8, 2010, Heller published a blog post, “Let’s Call Killing al-Awlaki What It Is — Murder,” which pointed to the legal problem presented by 18 U.S.C. 1119(b), which reads:
A person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113.
In reaction to Heller’s blog post (and other concerns), the New York Times article reports, Barron and Lederman devoted months of additional work to the matter of whether al-Awlaki could lawfully be killed, adding dozens of pages to their analysis in an attempt to get around the problem raised by Heller (and other concerns). But based on Professor Heller’s recent analysis of the leaked “White Paper” which summarized the analysis of Barron and Lederman, it does not appear that they ever focused on the key issue — the problem under 18 USC 1119(b) presented by the CIA, which is not part of the military, killing a U.S. citizen in a foreign country.
It appears that Professor Heller is continuing to pwn Barron and Lederman. Yesterday morning he published a blog post which is highly critical of this key omission in their analysis: “Why the ‘Public Authority’ Defense Does Not Work for the CIA.” The blog post seems quite thorough, and one looks forward to hearing what current Administration officials, and Barron and Lederman (who have returned to teaching), have to say about it. A snippet:
al-Awlaki was killed by the CIA, not by the US military. The White Paper does not discuss whether a CIA drone operator would be entitled to a public-authority defense in a prosecution under the foreign-murder statute; indeed, all of the sources cited in III.C regarding the defense (p. 14) — three classic criminal-law treatises and an old state case — claim that the laws of war entitle a soldier to kill the enemy. They say nothing about the right of anyone else to kill.
So would a CIA drone operator be entitled to a public-authority defense? I don’t see how. . . . I simply fail to understand how the US could argue that a CIA drone operator has the right to kill an American citizen abroad, even one who otherwise qualifies as a legitimate target.
* * *
Because CIA drone operators do not possess the combatant’s privilege, a drone operator does indeed violate federal law when he kills an American citizen abroad — namely, the foreign-murder statute. That is true even though the exact same attack would not be criminal if it was carried out by a drone operator working for the US military. The difference is precisely one of public authority: the military drone operator has it (the combatant’s privilege); the CIA drone operator does not.
One wonders whether the country is in the best of hands if we have to rely on a law professor in Australia to point out to top lawyers in a progressive Administration a statute put in place to limit the ability of Americans to kill each other outside America.
Then again, Professor Heller is no slouch. From a review of his biography, perhaps one should not be surprised that Heller can run circles around Barron and Lederman — for example, he has twice as many advanced degrees (four) as Barron and Lederman have combined, two of them from American universities (an M.A. from Duke and a J.D. from Stanford). One hopes the lawyers who have replaced Barron and Lederman in the Administration are doing a better job of quickly and accurately analyzing the legal issues encountered by the Administration.
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