I started casually reading the Second Circuit’s opinion released yesterday, June 23, 2014, in the case of New York Times, et al. v. DOJ, et al, which includes a redacted version of the government’s now infamous legal memorandum outlining legal justification for executive decisions to assassinate American citizens abroad and I could not help casually analyzing the legal arguments therein provided.
1. The opening premise of the analysis misses the mark completely. While common law and state statutory law historically provided “defenses” for homicide, i.e., justification and excuse, these defenses also historically only applied in the context of a prosecution of an individual’s act of homicide vis-à-vis another individual. Justifications and excuses include the traditional defenses like self-defense, defense of others from death or great bodily harm, and mitigating elements to reduce the gravity of the crime like crimes of passion, intoxication, gross and general recklessness.
Remarkably, no one even tries to explain away the “generalization” of the analysis, which is then used to justify a state actor / government’s purported, and self-pronounced authority to commit premeditated murder precisely as defined – the unlawful killing of a human being with malice aforethought. This is the specific intent crime of murder, which is preceded by the requirement to show the necessary the mental elements of intent to kill, i.e., premeditated murder (assassination) of a specific individual. If this is proved, that a specific individual was targeted and killed, there is no common-law or state statutory defense to such a crime. This is premeditated murder without justification. Self defense requires immediacy and imminence in the harm to be exacted upon the defendant. In other words, the only time “self defense” is a legitimate justification for the killing of another is if the act of killing is surrounded by the factual circumstances that meet the respective state’s common law or statutory law prerequisites. (Not to mention even yet that there is no such thing as federal common law in this regard – and so the crime as identified by statute must be fulfilled by satisfaction of whatever statutory elements (and, defenses) exist in the statute).
2. Second, even if the “public authority” justification doctrine exists in a purely federal law application (a questionable premise in itself given that, but for very limited, unique and isolated circumstances not pertinent to these situations of targeted killings of American citizens, there is no federal common law, and therefore there can be no recognition of some general federal common-law defenses to murders prosecuted under federal statutes (if the federal statute says it’s murder, then it’s murder upon proofs and if the statute does not codify a defense or defenses, then there is no common-law defense available because there is no federal common law in this regard (there might be a common-law defense to murder of an American citizen on the high seas because maritime law is one of those rare instances in which there is a recognized federal “common law” because of the jurisdiction by the federal government over defined maritime circumstances), the “doctrine” as it is regurgitated in the OCD memo merely states predicate elements to consider when addressing government or state action vis-à-vis another (entity or individual).
In its most directly applicable format when looking at this case in particular, consider what is meant by “public authority” in the context of arrests accompanied by the use of force upon an individual. When state and/or federal law enforcement officers effectuate an arrest, and, in doing so, utilize force to subdue and detain the arrested individual they must act with prima facie public authority to engage in the specific act. In the case of law enforcement officers that prima facie public authority is usually articulated as the performance by the officer “in the course and scope of his duties”; acting on behalf of the government in the performance of his or her official discretionary duties; etc. So, the decision by an individual or individual law enforcement officers at the time of their actions and their discretionary decisions to effectuate an arrest is preceded by the requirement that in doing so they be acting within the scope of their public authority.
That an entity, governmental organization, or agency has general public authority to act in a variety of discretionary and ministerial ways has nothing to do with the “public authority” of officials or even government agencies to act and effectuate certain action vis-à-vis American citizens. And, as well, as with the example of conducting an arrest of an individual, the constitutional rights of the individual must still be protected during the particular action when the individual law enforcement officer is exercising legitimate public authority to effectuate the arrest. So, in the extreme case, when, in doing so, the law enforcement officer is required to use deadly force against the individual to protect himself or herself, his or her colleagues, or the citizenry in general, the question remains whether the officer’s individual conduct in utilizing that public authority was performed in an objectively reasonable manner and thus subject to a qualified immunity privilege.
This has nothing to do with a premeditated decision to walk up to an American citizen and assassinate them, which, when disrobed of the veiled cloth with which the government here attributes to it, is simply the same act and conduct that is being contemplated, and which has in fact been executed by the American government in this circumstance. That there is some science fiction element to the circumstances and logistics of the act that somehow (in some people’s minds) mitigates the temporal reality of the act itself, the point of the matter is whether this act is done by a mid-level technician in a virtual-reality video game room from an operations center in Florida or California, it is still a real act of premeditated murder performed by a government authority (upon direct and specific orders) because it is an executed (indeed an executive) decision to take a lethal weapon, track down and locate a specific individual, target that individual, and execute the means to effectuate the lethal force thereby imposed. It is as direct and blatant as one individual walking up to another specific and targeted individual on a street or in a public place and pulling a gun, pointing it at the individual and firing a shot with the specific intent to eliminate that individual’s life. This is pure, unadulterated, premeditated murder, and there is simply no justification and excuse or defense to this crime at common law, or in state statutory law.
Justifications and defenses depend on specific factual circumstances and must be shown in every case to exist before they can be applied to the otherwise proved act of murder. Carefully perused “footnote 12” to the memorandum is an attempt to work around this inevitable weakness in the government’s legal analysis. It is an attempt to say that the federal statute automatically incorporates the public authority doctrine. But that is a non-sequitur when used to extrapolate that the public authority automatically or impliedly incorporated therein can then be transmogrified into a defense of the crime of murder.
It is nothing more than saying that if a federal law enforcement officer, in the examples provided here, were prosecuted under the statute criminalizing murder being discussed here, that the federal officer could take advantage of the fact that he or she may have been acting with authority. For example if the federal officer in effectuating an arrest of an American citizen abroad ends up using lethal force in a situation in which that force is justified by the facts and circumstances arising from the arrest itself, then presumably, the officer would be acting with the prima facie public authority he or she already had to engage in the act of the arrest, but there is no per se public authority to seek out and kill that individual rather than simply arrest him or her. This is, again, targeted assassinations of American citizens whether or not performed by an individual operating covertly or not, or by a technician playing a video game in some bunker in the desert. And, again, the government here tries to obfuscate the distinction between specific acts and general acts in footnote 13 to explain away this apparent anomaly. The “public authority” doctrine is nothing more than a recognition that in performing certain acts public officials and public entities have prima facie authority to engage in acts in the performance of their ordinary governmental duties and functions – effectuating arrests, conducting searches and seizures of property (with or without a warrant), taking or condemning private property. However, there are only a small subset of actions that are discretionary rather than ministerial and it is these types of actions that are at issue here. It is ministerial to declare a certain swath of private property as condemnable and subject to a lawful taking (a taking of private property with adequate and just compensation by the government for the needs of the government / public). It is ministerial to seek out and secure a search warrant to then be able to effectuate that search and seizure, which, when executed is discretionary.
Discretionary actions that are cloaked with public authority are actions that must always still be scrutinized by the conduct and actions of the officials or entities in question after the discretionary decision to act has been made. And these are the very specific details that are scrutinized under the still and omnipresent protections of the United States Constitution, and, particularly, those individual liberties protected by the Bill of Rights – due process, right to be free from unlawful searches and seizures, 1st, 2nd, 4th, and 5th amendment rights are protected and cannot be swept away simply by saying the government had a predicate “public authority” to engage in the specific actions that are the subject of scrutiny when held against these ever present constitutional rights. The public authority doctrine or “justification” is no “traditional” justification or excuse, that is to say a “defense”, to the crime of murder – like self-defense, defense of others, crimes of passion (where the specific intent is mitigated by the rage of the individual), etc.
The government, generally, and government officials in particular, always have public authority to engage in certain ministerial and discretionary acts to perform or effectuate their public duties and functions. A police officer always has a duty to seek out, investigate, and arrest (that is to say stop or inhibit) the commission of crimes. This is his or her function. He or she has “public authority” to go about performing these duties and functions in his or her day-to-day job.
Likewise, prosecutors and judges have public authority to act with discretion in performing their respective duties and functions. A large swath of the government (that is to say the majority of individual performing government functions) is supposed simply to be performing the day-to-day non-discretionary ministerial tasks of government. They are simply bureaucratic functionaries following laws, regulations, and acting thereupon to perform day-to-day ministerial tasks. A parking enforcement officer charged with the responsibility to issue parking citations issues the citation without discretion if a car is parked in a spot where the time on the meter is expired. There is no discretion in the premises, nor should there be.
A government official that issues a license or a permit upon application (such as a vehicle registration renewal to remain within the example of the transportation department of government) does so upon presentation of the proper documents, license information, vehicle ownership information, insurance, etc., and does so without discretion upon payment of the proper fee. This is, like most acts of government should be, merely ministerial.
All government officials whether performing trivial ministerial tasks or exercising discretion, act with a prima facie public authority. But the “public authority” doctrine or defense or justification (although these latter two terms are an overly generous characterizations) stops at the threshold of the door that opens up to the rights afforded every citizen by the Bill of Rights and the United States Constitution; and therefore the actions and conduct of all government officials acting with “public authority”, must still be scrutinized under the constitutional protections afforded all American citizens, whether at home and abroad when actions and conduct are effectuated upon them by the American government.
And, thus, no matter how it is stated, the public authority justification simply does not afford a defense to the premeditated, specific intent crime of targeted murder.
The government’s “conclusion” therefore that “citizenship” provides no basis for concluding the federal murder statute does not incorporate “the established public authority justification for a killing” is a vacuous proposition because it is based on the equally vapid conclusion that the “public authority” doctrine or justification is a defense to premeditated murder. That is as blatantly wrong as it sounds.
Even more preposterous is the conclusion, a few sentences later, in which the government rewrites history with this invented defense to murder by stating that “[a]t the time of the predecessor versions of the [federal statute criminalizing murder by U.S. citizens of U.S. citizens abroad] were enacted, it was understood that killings undertaken in accord with the public authority justification were not “unlawful” because they were justified” OCD Memo, as redacted, at p. 75 of the opinion. I would challenge the government to provide an example of this statement.
It is such an absurd statement, I have to repeat it. The government states that “it was understood that a killing undertaken in accord with the public authority justification was not “unlawful” because it was “justified”. Aside from the rather loose utilization of the term “killing”, as if we are talking about slaughter of sheep, and we may indeed be, I would challenge the government to demonstrate a case in which a “killing” was undertaken with public authority and was therefore justified by the mere virtue of the existence of that public authority. Not to cheapen the grave tone in which I am writing on this topic, but this memorandum is going to provide a “field day” for Kennedy assassination conspiracy theorists. Clearly, if the CIA or the government has to retroactively rewrite the history of the common law to come up with a non-existent legal defense to publicly authorized and executed assassinations of American citizens to avoid being charged with outright murder, then certainly, they have done a great job of that here. To what prior “killings” is the government referring to here where we have had the opportunity to apply the public authority justification for the murder of an American citizen, notwithstanding there was and is no such defense to the crime of murder?
And, to entertain the false premise, who was it “understood” by? Was the defense presented to a judge or a court of law? Was it addressed even in a single legal treatise, or even, a desperately concocted law review article? What is a “killing undertaken in accord with the public authority justification”?
Certainly, I would concede that a “killing” of an individual by a law enforcement officer in the performance of an arrest where the arrested individual has the immediate means to and resorts to use deadly force and/or does threaten the life of the arresting officer and/or his or her colleagues, or even the citizenry in general, that the “killing” in that circumstance would be defensible, but not by any ethereal “public authority” justification. The “killing” is “justified” because it was executed in self defense or in defense of others from threat of death or great bodily harm at the moment it occurred. The law enforcement officer would not be subject to criminal prosecution for murder. He would also be able to avail himself of the privilege of qualified immunity from a civil liability lawsuit brought under federal law pursuant to 42 U.S.C. 1983, among other federal statutes and constitutional provisions, and presumably, he or she would be similarly protected under the state-law equivalents of immunity depending on the jurisdiction in which the act occurred.
But what does the vague “public authority” doctrine, or “defense”, or “justification” do to protect a premeditated, unprovoked, and targeted assassination of an American citizen that is clearly not executed for the immediate reason of a need to protect the life of oneself, of others, or of the public in general?
The answer is “Nothing!” Because there is no such absurd and asinine thing as a “public authority” justification or defense to the crime of murder. Simply put, the government executed an American citizen and when it was questionable whether a murder charge could be brought against it or the individuals or individual that ordered it, the Department of Justice retroactively invented a non-existent common-law defense to the crime of first-degree, premeditated murder or assassination.
More troubling, however, is the OCD memorandum’s reference to statutory authority in the Patriot Act as a means of justifying the targeted assassination by the American government of American citizens upon executive order. I will address this analysis later. For now, you can read the imbecilic “legal” analysis contained in the government’s memorandum in this opinion released June 23, 2014. By the way, the Court ordered release of the memorandum on or about June 10 (in a previously redacted form), but the government immediately moved for an injunction for the release, and a rehearing. The opinion released on June 23 contains an additionally redacted version.
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Amicus Curious 