In light of the recent news that the CIA has killed al-Awlaki, I thought I’d flag my essay at CATO entitled “The Federal Protective Power and Targeted Killing of U.S. Citizens“
Here is an excerpt:
My reading of the Constitution leads me to believe that there are circumstances when the president may order U.S. citizens to be killed. It may be akin to the facts in al-Awlaki, where one is actively making war against the United States, or it may be in lesser circumstances that threaten the instruments of federal power. Let’s start with a settled example where a killing was authorized to protect the federal government. In Cunningham v. Neagle, 135 U.S. 1 (1890), the Court addressed the killing of a U.S. citizen by Neagle, a federal marshal who was dispatched to protect Justice Field from an anticipated assault. While on a railroad dining car, the assault occurred (as expected) and Neagle reacted by killing the assailant with two pistol shots; Neagle was subsequently arrested on homicide charges and held for trial. The question the Court addressed was whether Neagle, acting upon orders but not a statute, had authority to kill a man in defense of Justice Field. The Court found that Neagle was acting pursuant to lawful authority, because the President was entitled to authorize protection for a sitting Supreme Court Justice. Justice Miller wrote:
That there is a peace of the United States; that a man assaulting a judge of the United States while in the discharge of his duties violates that peace; that in such case the marshal of the United States stands in the same relation to the peace of the United States which the sheriff of the county does to the peace of the State of California; are questions too clear to need argument to prove them.
While the Court characterized the questions as “too clear to need argument to prove them” this was in fact the first time the Court ever articulated what was long thought to exist—a federal protective power. The Court went on to explain that the structure of the Constitution itself suggested there was an inherent executive power to protect federal officers in the discharge of their duties.
Neagle was reinforced five years later in In re Debs, 158 U.S. 564 (1895), a case involving the attorney general’s attempts to prohibit interference with interstate commerce. In Debs the Court noted that the president was acting on inherent powers embedded in the Constitution and existing statutes, both of which allowed him to act as the primary agent of the national government to “prevent any unlawful and forcible interference” with interstate commerce. The Court went on to state that the president could use “the entire strength of the nation” including “the army of the Nation, and all its militia” to protect interstate commerce. Moreover, the Court cited numerous English and state authorities for the proposition that “when the choice is between redress or prevention of injury by force and by peaceful process, the law is well pleased if the [Executive] will consent to waive his right to the use of force and await [the law’s] action,” (emphasis mine) but such waiver is not constitutionally required. The import of Neagle and Debs is perhaps best summarized by the dissent in the Steel Seizure case, “[t]he Executive is authorized to exert the power of the United States when he finds this necessary for the protection of the agencies, the instrumentalities, or the property of the Government.”