Case 13-422 Document 229 Page 67 06 23 2014 1254659 U S Department of Justice of Legal Counsel Office of the Assistant Attorney General Washington D C 20530 July 16 2010 MEMORANDUM FOR THE ATTORNEY GENERAL Re Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi 97 Case 13-422 Document 229 Page 68 06 23 2014 1254659 97 II We begin our legal analysis with a consideration of section 1 119 of title 18 entitled Foreign murder of United States nationals Subsection 1119 b provides that 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 COlllltry shall be punished as provided under sections 1111 1112 and 1113 18 U S C 1119 b 6 In light of the nature of the contemplated operations described above and the fact that their target would be a national of the United States who is outside the United States we must examine whether section 1119 b would prohibit those operations Ve first expJain in this part the scope of section 1119 and why it must be construed to incorporate the public authority justification which can render lethal action carried out by a governmental officia11awful in some circumstances We next explain in part why that public authority justification would apply to the contemplated ODD operation Finally we explain in part III-B why that justification would apply to the contemplated CIA operation As to each agency we focus on the particular circumstances in which it would carry out the operation A Although section 1 119 b refers only to the punish ments provided under sections 1111 1112 and 1113 courts have construed section 1119 b to incorporate the substantive elements of those cross-referenced provisions of title 18 See e g United Stares v Wharton 320 F 3d 526 533 5th Cif 2003 United States v White 51 F Supp 2d 1008 1013-14 E D Ca 1997 Section 1111 of title 18 sets forth criminal penalties for murder and provides that m urder is the unlawful killing of a human being with malice aforethought Jd 1111 a Section 1112 similarly provides criminal sanctions for manslaughter and states that mJanslaughter is the unlawful killing of a human being without malice ld 1112 Section 1113 provides criminal penalties for attempts to commit murder or manslaughter ld 1113 It is therefore clear that section 1119 b bars only unlmvful killings 7 6 See also 18 U S C 11 I 9 a providing that national of the United States has the mean ing stated in section 101 aX22 of the Immigration and Nationality Act 8 USc 1IOJ a 22 Section 1 19 itself also expressly imposes various procedural limitations on prosecution Subsection requires that any prosecution be authorized in writing by the Attorncy Gcneral the Deputy Attorney General or an Assistant Attorney General and precludes the approvaJ of such an action if prosecution has been previously undertaken by a foreign country for the same conduct In addition subsection 11 J9 c 2 provides that 7 J J 9 c I 12 Case 13-422 Document 229 Page 69 06 23 2014 1254659 97 This limitation on section 1119 b 's scope is significant as the legislative history to the underlying offenses that the section incorporates makes clear The provisions section 1119 b incorporates derive from sections 273 and 274 of the Act of March 4 1909 ch 321 35 Stat 1088 1143 The 1909 Act codified and amended the penal laws of the United States Section 273 of the enactment defined murder as the unlawful killing of a human being with malice aforethought and section 274 defined manslaughter as the unlawful killing of a human being without malice 35 Stat 1143 8 In 1948 Congress codified the federal murder and manslaughter provisions at sections 1I 11 and 1112 of title 18 and retained the definitions of murder and manslaughter in nearly identical form see Act of June 25 1948 ch 645 62 Stat 683 756 including the references to unlawful killing that remain in the statutes todayreferences that track similar formulations in some state murder statutes 9 n o prosecution shall be approved under this section unless the Attorney General in consultation with the Secretary of State determines that the conduct took place in a country in which the person is no longer present and the country lacks the ability to lawfully secure the person's retum -a determination that is not subject to judicial review id I A 1908 joint congressional committee report on the Act explained that u nder existing law Le prior to the 1909 Act there had been no statutory definition of the crimes of murder or manslaughter Report by the Special Joint Comm on the Revision of the Laws Revision and Codification of the Laws Etc H R Rep No 2 60th Congo 1st Sess at 12 Jan 6 1908 Joint Committee Report We note however that the 1878 edition of the Revised Statutes did contain a definition for manslaughter but not murder Every person who within any of the places or upon any of the waters within the exclusive jurisdiction of the United States unlawfuIly and willfully but WirJlOut malice strikes stabs wounds or shoots at otherwise injures another of which striking stabbing wounding shooting or other injury such other person dies either on land or sea within or without the United States is guilty oftlle crime of manslaughter Revised Statutes 534 J 1878 ed quoted in United States V Alexander 471 F 2d 923 944-45 n 54 D C Cir 1972 With respect to murder the 1908 report noted that the legislation enlarges the common-law definition and is similar in terms to the statutes defining murder in a large majority of the States Joint Committee Report at 24 see also Revision of the Penal Laws Hearings On S 2982 Before he Senate as a Whole 60th Cong 1st Sess 1184 1185 1908 statement of Senator Heyburn same With respect to manslaughter the report stated that w hat is said with respect to the murder provision is true as to this section manslaughter being defined and classified in lanlluaee similar to that to be found in the statutes of a large majority of the States Joint Committee Report at 24 9 See e g Cal Penal Code 187 a West 2009 Murder is the unlawful kiIling of Il human being or a fetus with malice aforethought Fla Stat 782 04 1 a West 2009 including unlawful killing ofa human being as an element of murder Idaho Code Ann 18-400 I West 2009 Murder is the unlawful killing of a human being Nev Rev Stat Ann 200 010 West 2008 including unlawful killing ofa human being as an element of murder R r Gen Laws 11-23-1 West 2008 The unlawful killing ofa human being with malice aforethought is murder Tenn Code Ann 39-13-201 West 2009 Criminal homicide is the unlawful killing of another person Such statutes in tum reflect the view often expressed in the common law of murder that the crime requires an unlawful killing See e g Edward Coke The Third Part ofthe Institutes ofLaws of England 47 London W Clarke Sons 1809 Murder is when a man of sound memory and of the age of discretion unlawfully killeth within any county of the realm any reasonable creature in rerum natura un der the king's peace with malice fore-thought either expressed by the party or impJied by law so as the party wounded or hurt c die of the wound or hurt c within a year and a day after the same 4 William Blackstone Commentaries on the Laws 0 England 195 Oxford 1769 same see also A Digest o Opinions a the Judge Advocates General ofthe Army J 074 n 3 J 912 Murder at common law is the unlawful killing by a person of sound memory and discretion of any reasonable creature in being and Wlder the peace of the State which malice aforethought either express or implied internal quotation marks omitted 13 Case 13-422 Document 229 Page 70 06 23 2014 1254659 97 As this legislative history indicates guidance as to the meaning of what constitutes an unlawful killing ' -in sections 1111 and 11l2-and thus for purposes of section 1119 b -can be found in the historical understandings of murder and manslaughter That history shows that states have long recognized justifications and excuses to statutes criminalizing unlawful killings 1O One state court for example in construing that state's murder statute explained that ' the word 'unlawful' is a tenn of art that connotes a homicide with the absence of factors of excuse or justification People v Frye 10 Cal Rptr 2d 217 221 Cal App 1992 That court fwiher explained that the factors of excuse or justification in question include those that have traditionally been recognized id at 221 n 2 Other authorities support the same conclusion See e g Mullaney v Wilbur 421 U S 684 685 1975 requirement of unJawfuI killing in Maine murder statute meant that killing was neither justifiable nor excusable cf also Rollin M Perkins Ronald N Boyce Criminal Law 56 3d ed 1982 Innocent homicide is of two kinds 1 justifiable and 2 excusable 11 Accordingly section 1 19 does not proscribe killings covered by a justification traditionally recognized such as under the common la v or state and federal murder statutes See White 51 F Supp 2d at 1013 Congress did not intend section 1119 to criminalize justifiable or excusable killings B Here we focus on the potential application of one such recognized justification-the justification of public authority -to the contemplated DoD and CIA operations Before examining whether on these facts the public authority justification would apply to those operations we first explain why section 1119 b incorporates that particular justification The public authority generally understood is well-accepted and it is clear it may be available even in cases where the particular criminal statute at issue does not expressly 10 The same is true with respect to other statutes including federal laws that modify a prohibited act other than murder or manslaughter with the tenn unlawfully See e g Territory v Gonzales 89 P 250 252 N M Terr 1907 construing the tenn unlawful in statute criminaiizing assault with a deadly weapon as clearly equivalent to without excuse or justification For example 18 U S c 2339C makes it unlawful inter alia to unlawfully and willfully provide J or collect funds with the intention that they be used or knowledge they are to be used to cany out an act that is an offense within certain specified treaties or to engage in cer1ain other terrorist acts The legislative history of section 2339C makes cIear that t he tenn 'unlawfully' is intended to embody common law defenses H R Rep No 107-307 at 12 2001 Similarly the Unifonn Code of Military Justice makes it unlawful for members of the armed forces to without justification or excuse unlawfully kill a human being under certain specified circumstances 10 V S c 918 Notwithstanding that the statute already expressly requires lack of justification or excuse it is the longstanding View of the armed forces that H k iIling a human being is unlawfuf' for purposes of this provision when done without justification or excuse Manual for Courts-Martial United States 2008 ed at IV-63 art 118 comment c l emphasis added II 14 Case 13-422 Document 229 Page 71 06 23 2014 1254659 97 refer to a public authority justification 12 Prosecutions where such a public authority justification is invoked are understandably rare see American Law Institute Model Penal Code and Commentaries 3 03 Conunent 1 at 24 1985 cf VISA Fraud Investigation 8 Op O L e 284 285 n 2 286 1984 and thus there is little case law in which courts have analyzed the scope of the justification with respect to the conduct of government officials I3 Nonetheless discussions in the leading treatises and in the Model Penal Code demonstrate its legitimacy See 2 Wayne R LaFave Substantive Criminal Lm-v 10 2 b at 135 2d ed 2003 Perkins Boyce Criminal Lcnv at 1093 Deeds which otherwise would be criminal such as taking or destroying property taking hold of a person by force and against his wiU placing him in confinement or even taking his life are not crimes if done with proper pu bJic authority see also Model Penal Code 3 03 1 a d e at 22 23 proposing codification of justification where conduct is required or authorized by inter alia the law defining the duties or functions of a public officer the law governing the armed services or the lav 7uJ conduct of war or any other provision oflaw imposing a public duty National Comm'n on Reform of Federal Criminal Laws A Proposed New Federal Criminal Code 602 1 Conduct engaged in by a public servant in the course of his offIcial duties is justified when it is required or authorized by law And this Office has invoked analogous rationales in several instances in which it has analYL ed whether Congress intended a particular criminal statute to prohibit specific conduct that otherwise falls within a government agency's authorities J4 12 Where a federal criminal statute incorporates the public authority justification and the government conduct at issue is within the scope of that justification there is no need to examine whether the criminal prohibition has been repealed impliedly or otherwise by some other statute that mrght potentially authorize the goverrunental conduct including by the authorizing statute that might supply the predicate for the assertion of the public authority justification itself Rather in such cases the criminal prohibition simply does not apply to the particular governmental conduct at issue in the first instance because Congress intended that prohibition to be qualified by the pUblic authority justification that it incorporates Conversely where another statute expressly authorizes the governInent ro engage in the specific conduct in question then there would be no need to invoke the more general public authority justification doctrine because in such a case the legislature itself has in effect carved out a specific exception pemlitting executive to do what the legislature has otherwise generally forbidden We do not address such a circumstance in this opinion 13 The question of a public authority justification is much more frequently litigated in cases where a private party charged with a crime interposes the defense that he relied upon authority that a public official allegedly conferred upon him to engage in the challenged conduct See generally United States Attorneys' Manual tit 9 Criminal Resource Manual 2055 describing and discussing three different such defenses of govemmental authority National Comm'n on Reform of Federal Criminal Laws A Proposed New Federal Criminal Code 602 2 Model Penal Code 3 03 3 b see also United Slates v Fulcher 250 F 3d 244 253 4th Cir 2001 United Stales v Rosenthal 793 F 2d 1214 1235-36 J I th Cir 1986 United States v Duggan 743 F 2d 59 83-84 2d Cir 1984 Fed R Crim P 12 3 requiring defendant to notify government ifhe intends to invoke such a public authority defense We do not address such cases in tilis memorandum in which our discussion of the public authority justification is limited to the question of whether a particular criminal law applies to specific conduct undertaken by government agencies pursuant to their authorities 14 See e g Memorandum for 15 Case 13-422 Document 229 Page 72 06 23 2014 1254659 97 The public authority justification does not excuse all conduct of public officials from all criminal prohibitions The legislature may design some criminal proWbitions to place bounds on the kinds of governmental conduct that can be authorized by the Executive Or the legislature may enact a criminal prohibition in order to delimit the scope of the conduct that the legislature has' otherwise authorized the Executive to undertake pursuant to another statute 15 But the recognition that a federal criminal statute may incorporate the public authority justification reflects the fact that it would not make sense to auribute to Congress the intent with respect to each of its criminal statutes to prohibit all covered activities undertaken by public officials in the legitimate exercise of their otherwise lawful authorities even if Congress has clearly intended to make those same actions a crime when committed by persons who are not acting pursuant to such public authority In some instances therefore the better view of a criminal prohibition may well be that Congress meant to distinguish those persons who are acting pursuant to public authority at least in some circumstances from those who are not even if the statute by tenns does not make that distinction express Cj Nardone v United States 302 U S 379 384 1937 federal criminal statutes should be construed to exclude authorized conduct of public officers where such a reading would work obvious absurdity as for example the application of a speed law to a policeman pursuing a criminal or the driver of a fire engine responding to an alann 16 Here we consider a federal murder statute but there is no general bar to appJying the public authority justification to such a criminal prohibition For example JPYlth respect to prohibitions on the unlawful use of deadly force the Model Penal Code recommended that legislatures should make the public authority or public duty justification available though only where the use of such force is covered by a more particular justification such as defense of others or the use of deadly force by law enforcement where the use of such force is otherwise express1y authorized by law or where such force occurs in the lawful conduct of war Mode1 Penal Code 3 03 2 b at 22 see also id Comment 3 at 26 Some states proceeded to adopt the Model Penal Code recommendation 17 Other states although not adopting that precise see also Visa Fraud investigation 8 Op O L e at 287-88 concluding that civil statute prohibiting issuance of visa to an alien known to be ineligible did not prohibit State Department from issuing such a visa where necessary to facilitate important lnunigrarion and Naturalization Service undercover operation carried out in a reasonable fa shion 15 See e g Nardone v United States 302 U S 379 384 1937 govcnunent wiretapping was proscribed by federal statute 16 In accord with our prior precedents each potentially applicable statute must be carefully and separately examined to discern Congress's intent in this respect-such as whether it imposes a less qualified limitation than United States Assistance section 11 9 imposes See generally e g to Counlries that Shoot Down Civil Aircraji Involved in Drug Trafficking 18 Op O L e 148 1994 Application 0 Neutrality Act to Official Government Activities 8 Op O L C 58 1984 17 See e g Neb Rev Stat 28-1408 2 b Pa C S A 504 b 2 Tex Penal Code tit 2 9 21 c 16 Case 13-422 Document 229 Page 73 06 23 2014 1254659 97 fonnulation have enacted specific statutes dealing with the question of when public officials are justified in using deadly force which often prescribe that an officer acting in the performance of his official duties must reasonably have believed that such force was necessary 18 Other states have more broadly provided that the public authority defense is available where the government 19 officer engages in a reasonable exercise of his official functions There is however no federal statute that is analogous and neither section 1119 nor any of the incorporated title 18 provisions setting forth the substantive elements of the section 1119 b offense provide any express guidance as to the existencc or scope of this justification Against this background we believe the touchstone for the analysis of whether section 1119 incorporates not only justifications generally but also the public authority justification in particular is the legislative intent underlying this criminal statutc We conclude that the statute should be read to exclude from its prohibitory scope killings that are encompassed by traditional justifications which include the public authority justification Therc are no indications that Congress had a contrary intention Nothing in the text or legislative history of sections 11111113 of title 18 suggests that Congress intended to exclude the established public authori1y justification from those that Congress otherwise must be understood to have imported through the use of the modifier unlawful in those statutes which as we explain above establish the substantive scope of section 1119 b 2o Nor is there anything in the text or legislative history of section 1119 itself to suggest that Congress intended to abrogate or otherw ise affect the availability under that statute of this traditional justification for killings On the contrary the relevant legislative materials indicate that in enacting section 1119 Congress was merely closing a gap in a field dealing with entirely different kinds of conduct than that at issue here The origin of section 1119 was a bill entitled the Murder of United States Nationals Act of 1991 which Senator Thurmond introduced during the 102d Congress in response to the murder of an American in South Korea who had been teaching at a private school there See 137 Congo Rec 8675-77 1991 statement of Sen Thurmond Shortly aner the murder another American teacher at the school accused a fonner colleague who was also a U S citizen of having committed the murder and also confessed to helping the former colleague cover up the crime The teacher who confessed was convicted in a South Korean court of destroying evidence and aiding the escape of a criminal suspect but the individual she accused of murder had returned to the United States before the confession Jd at 8675 The United States did not have IS See e g Ariz Rev Stat 13-4 IO C Maine Rev Stat Ann tit 17 J02 2 19 See e g Ala Stat 13A-3-22 N Y Penal Law 35 05 J LaFave SubSlQntive Criminal Law lO 2 b at 135 n IS see also Robinson Criminal Law Defenses l49 a at 215 proposing that the defense should be available only if the actor engages in the authorized conduct when and to the extent necessary to protect or further the interest protected or by the grant of authority and where it is reasonable in relation to the graVity of the harms or evils threatened and the importance of the interests to be furthered by such exercise of aut 1 ority id 149 c at 218-20 20 In concluding that the use of the term unlawful supports the conclusion that section II J9 incorporates the public authority justification we do not mean to suggest that the absence of slIch a tenn would require a contrary conclusion regarding the intended application ofa criminal statute to otherwise authorized government conduct in other cases Each statute must be considered on its own terms to determine the relevant congressional intent See supra note 16 1 17 Case 13-422 Document 229 Page 74 06 23 2014 1254659 97 an extradition treaty with South Korea that would have facilitated prosecution of the alleged murderer and therefore under then-existing law the Federal Government hard no jurisdiction to prosecute a person residing in the United States who ha d murdered an American abroad except in limited circumstances such as a tcrrorist murder or the murder of a Federal official Id To close thc loophole under Federal law which permits persons who murder Americans in certain foreign countries to go punished fd the Thunnond bill would have added a new section to title 18 providing that w hoever 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 of this title S 861 I 02d Congo 1991 incorporated in S 1241 102d Congo 320 J -03 1991 The proposal also contained a separate provision amending the procedures for extradition to provide the executive branch with the necessary authority in the absence of an extradition treaty to surrender to foreign governments those who conunit violent crimes against U S nationals 137 Congo Rec 8676 1991 statement of Sen Thunnond discussing S 861 102d Cong 3 21 The Thunnond proposal was incorporated into an omnibus crime bill that both the House and Senate passed but that bill did not become law In the l03d Congress a revised version of the Thunnond bill was included as part of the Violent Crime Control and Law Enforcement Act of 1994 H R 3355 60009 103d Congo 1994 The new legislation differed from the previous bill in two key respects First it prescribed criminal jurisdiction only where both the perpetrator and the victim were U S nationals whereas the original Thurmond bill would have extended jurisdiction to all instances 22 in which the victim was a U S national based on so-called passive personality jurisdiction Second the revised legislation did not include the separate provision from the earlier Thurmond legislation that would have amended the procedures for extradition Congress enacted the revised legislation in 1994 as part of Public Law No 103-322 and it was codified as section 1119 of title 18 See Pub L No 103-322 60009 108 Stat 1796 1972 1994 Thus section 1119 was designed to close a jurisdictional loophole--exposed by a murder that had been committed abroad by a private individual-to ensure the possibility of prosecuting U S nationals who murdered other U S nationals in certain foreign countries that lacked the ability to lawfully secure the perpetrator's appearance at trial This loophole had nothing to do v ith the conduct of an authorized military operation by U S anned forces or the sort of CIA counterterrorism operation contemplated here Indeed prior to the enactment of section 1119 the only federal statute expressly making it a crime to kill U S nationals abroad at least outside the special and maritime jurisdiction of the United States 21 The Thurmond proposal also contained procedural limitations on prosecution virtually identical to those that Congress ultimately enacted and codified at 18 U s c 1 J 19 c See S 861 l02d Congo 2 12 Sec Geoffrey R Watson The PassNe Personality Principle 28 Tex Int'l L J 1 13 1993 137 Congo Rec 8677 1991 Jetter for Senator Ernest F Hollings from Janet G Mullins Assistant Secretary Legislative Affairs U S State Department Dec 26 1989 submitted for the record during floor debate on the Thunnond bill S4 752 The United States has generally taken the position that the exercise of extraterritorial criminal jurisdiction based solely on the nationality of the victim interferes unduly with the application of local law by local authorities 18 Case 13-422 Document 229 Page 75 06 23 2014 1254659 97 reflected what appears to have been a particular concern with protection of Americans from terrorist attacks See 18 U S C 2332 a d criminalizing unlawful killings of U S nationals abroad where the Attorney General or his subordinate certifies that the offense was intended to coerce intimidate or retaliate against a government or a civilian population 23 It therefore would be anomalous to now read section 1119' s closing of a limited jurisdictional gap as having been intended to jettison important applications of the established public authority justification particularly in light of the statute's incorporation of substantive offenses codified in statutory provisions that from all indications were intended to incorporate recognized justifications and excuses It is true that here the target of the contemplated operations would be a U S citizen But we do not believe al-Aulaqi' s citizenship provides a basis for concluding that section 1119 would fail to incorporate the established public authority justification for a killing in this case As we have explained section I 119 incorporates the federal murder a'1d manslaughter statutes and thus its prohibition extends only to unlawful killings 18 U S C 1111 11 12 a category that was intended to include from all of the evidence oflegislative intent we can find only those killings that may not be permissible in light of traditional justifications for such action At the time the predecessor versions of sections 1111 and 1112 were enacted it was understood that killings undertaken in accord with the public authority jLL' tification were not unlawful because they were justified There is no indication that because section 1119 b proscribes the unlawful killing abroad of U S nationals by U S nationals it silently incorporated all justifications for killings except that public authority justification III Given that section 1119 incorporates the public authority justification we must next analyze whether the contemplated DoD and CIA operations would be encompassed by that justification In particular we must analyze whether that justification would apply even though the target of the contemplated operations is a United States citizen We conclude that -it woulda conclusion that depends in part on our determination that each operation would accord with any potential constitutional protections of the United States citizen in these circumstances see irifra part VI In reaching tius conclusion we do not address other cases or circumstances involving different facts Instead we emphasize the sufficiency of the facts that have been represented to us here without determining whether such facts would be necessary to the conclusion we reach 24 2 Courts have interpreted other federal homicide statutes to apply extraterritorially despite the absence of an express provision for extratenitorial application See e g 18 U S c 1114 crimina izing unlawful killings of federal officers and employees United Slates v At Kassar 582 F Supp 2d 488 497 S D N Y 2008 C Jnsauing J 8 U S C 1114 to apply extraterritorially 24 In light of our conclusion that section J J J9 aJld the statutes it cross-references incorporate this justification and rhat the operations here would be covered by thai justification we need not and thus do not address whether other grounds might exist for concluding that the operations would be lawful J9 Case 13-422 Document 229 Page 76 06 23 2014 1254659 97 A We begin with the contemplated DoD operation We need not attempt here to identifY the minimum conditions that might est ablish a public authority justification for that operation In light of the combination of circumstances that we understand would be present and which we describe below we conclude that the justification would be available because the operation would constitute the lawful conduct ofwar -a well-established variant of the public authority justification 25 As one authority has explained by example if a soldier intentionally kills an enemy combatant in time of war and within the rules of warfare he is not guilty ofmurder whereas for example if that soldier intentionally kills a prisoner of war-a violation of the la vs of war then he commits murder 2 LaFave Substantive Criminal Lenv 1O 2 c at 136 see also State v Gut 13 Minn 341 357 1868 That it is legal to kill an alien enemy in the heat and exercise of war is undeniable but to kill such an enemy after he laid down his arms and especially when he is confined in prison is murder Perkins Boyce Criminal Law at 1093 Even in time of war an alien enemy-may not be killed needlessly after he has been disarmed and securely imprisoned 26 Moreover without invoking the public authority justification by terms our Office has relied on the same notion in an opinion addressing the intended scope of a federal criminal statute that cqncerned the use ofpossibJy lethal force See United States Assistance fo Countries that Shoot Down Civil Aircraft Involved in Drug TrafjicJ ing 18 Op O L e 148 164 1994 Shoot Down Opinion concluding that the Aircraft Sabotage Act of 1984 18 U S c 32 b 2 which prohibits the willful destruction of a civil aircraft and otherwise applies to U S government conduct should not be construed to have the surprising and almost certainly 25 See e g 2 Paul H Robinson Criminal Law Defenses 148 a at 208 1984 conduct tfJ at would violate a criminal statute is justified and thus not unlawful w Jherc the exercise of military authority relics upon the law governing the armed forces or upon the conduct of war 2 LaFave Substantive Criminal Law 10 2 c at 136 another aspect of the public duty defense is where the conduct was required or authorized by 'the law governing the armed services or the lawful conduct of war ' internal citation omitted Perkins Boyce Criminal Lmv at J 093 noting that a typical instanceD i n which even the extreme act oftaking human life is done by public authority involves the killing of an enemy as an act of war and within the rules of war Frye 10 CEll Rptr 2d at 221 n 2 identifying homicide done u nder a valid public authority such llS execution of a death sentence or killing an enemy ill a time of war as one example of a justifiable killing that would not be unlawful under the California statute describing mw-der as an tU1lawful killing Stale v Gut 13 Minn 341 357 1868 ''that it is legal to kill an alien enemy b the heat and exercise of war is undeniable see also Model Penal Code 3 03 2 b proposing that criminal statutes expressly recognize u public authority justification for a killing that occurs in the Jawful conduct of war notwithstanding the Code reconunendation that the use of deadly force generally should be justified only if expressly prescribed by law see also id at 25 n 7 col ectingJepresentative statutes reflecting this view enacted prio r to Code's promulgation 2 Robinson Criminal Law Dejenses 148 b at 210-11 nn 8-9 collecting postModel Code state statutes expressly recognizing such a ddense 26 Cf Public CommiItee Against Torture ill sreel v Government of Israel HC 769 02 J9 46 LL M 375 382 Israel Supreme Court sitting as the High Court of Justice 2006 When soldiers ofthe Israel Defense Forces act pursuant to the laws of armed conflict they are acting' by la w' and they have a good justification defense to criminal culpability However if they act contrary to the Jaws of armed conflict they may be inter alia criminally liable for their actions Calley v Callaway 519 F 2d 184 193 5th Cir 1975 an order to kill unresisting Vietnamese would be an illegal order and if the defendant knew the order was illegal or should have known it was illegal obedience to an order was not a Jegal defense 20 Case 13-422 Document 229 Page 77 06 23 2014 unintended effect of crirninalizing actions by military personnel international law and the laws of anned conflict 1254659 97 that are lawful under In applying this variant of the public authority justification to the contemplated DoD operation we note as an initial matter that DoD would undertake the operation pursuant to Executive war powers that Congress has expressly authorized See Youngstown Sheer Tube Co v Scnllyer 343 U S 579 635 1952 Jackson J concurring When the President acts pursuant to an express or implied authorization of Congress his authority is at its maximum for it includes all that he possesses in his own right plus all that Congress can delegate By authorizing the use of force against organizations that planned authorized and committed the September 11 th attacks Congress clearly authorized the President's use of necessary and appropriate force against al-Qaida forces becauseal-Qaida carried out the September 11th attacks See Authorization for Use of Military Force AUMF Pub L No 107-40 115 Stat 224 2 a 2001 providing that the President may use all necessary and appropriate force against those nations organizations or persons he determines planned authorized committed or aided the terrorist attacks that occurred on September 11 2001 or harbored such organizations or persons in order to prevent any future acts of international terrorism against the United States by such natjons organizations or persons 27 And as we have explained supra at 9 a decision-maker could reasonably conclude that this leader of AQAP forces is part of al-Qaida forces Alternatively and as we have further explained supra at 10 n S the AUMF applies v ith respect to forces associated with al-Qaida that arc engaged in hostilities against the U S or its coalition partners and a decision-maker could reasonably conclude that the AQAP forces of which al-Aulaqi is a leader are associated with a1 Qaida forces for purposes of the AUMF On either view DoD would carry out its contemplated operation against a leader of an organization that is within the scope of the AUMF and therefore DoD would in that respect be operating in accord with a grant of statutory authority Based upon the facts represented to us moreover the target of the contemplated operation has engaged in conduct as part of that organization that brings him within the scope of the AUMF High-level government officials have concluded on the basis of al-Aulaqi's activities in Yemen that al-Aulaqi is a leader of AQAP whose activities in Yemen pose a continued and imminent threat of violence to United States persons and interests Indeed the facts represented to us indicate that aI-Aulaqi has been involved through his operational and leadership roles within AQAP in an abortive attack within the United States and continues to piot attacks intended to kill Americans from his base of operations in Yemen The contemplated DoD operation therefore would be carried out against someone who is within the core of 28 individuals against whom Congress has authorized the use of necessary and appropriate force 27 We emphasize this point not in order to suggest that statutes such as the AUMF have superseded or implicitly repealed or amended section 1119 but instead as one factor that helps to make partiCUlarly clear why the operation contemplated here would be covered by the public authority justification that section 1119 and section 1111 itself incorporates 26 See Hamlify 616 F Supp at 75 COll5truing AUMF to reach individuals who function J or participateD within or lmder the command structure of Gherebi v Oboma 609 F Supp 2d 43 68 D D C 2009 see also al-Marri v Pucciarelli 534 F 3d 213 325 4th Cir 2008 cn bane Wilkinson J dissenting in pan explaining that the ongoing hostilities against al-Qaida permit the Executive to use necessary and appropriate force 21 Case 13-422 Document 229 Page 78 06 23 2014 1254659 97 Al-Aulaqi i-s a United States citizen however and so we must also consider whether his citizenship precludes the AUMF from serving as the source oflawful authority for the contemplated DoD operation There is no precedent directly addressing the question in circumstances such as those present here but the Supreme Court has recognized that because military detention of enemy forces is by 'universal agreement and practice ' an 'important incident of war Hamdi v Rumsfeld 542 U S 507 518 2004 plurality opinion quoting Ex parte Quirin 317 U S 1 28 30 1942 the AUMF authorized the President to detain a member of Taliban forces who was captured abroad in an armed conflict against the United States on a traditional battlefield See id at 517-19 plurality opinion 29 In addition the Court held in under the AUMF against an enemy combatant a term Judge Wilkinson would have defined as a person who is 1 a member of' 2 an organization or nation against whom Congress has declared war or authorized the use of military force and 3 who knowingly plans or engages in conduct that harms or aims to haml persons or property or the purpose of furthering the military goals of the enemy nation or organization vacated and remancied sub nom al-Marri v Spagone 129 S Ct 1545 2009 Government March 13th GuantQnamo Bay Detainee Brief at 1 arguing that AUMF author1ze$ detention of individuals who were part of or substantially supported Taliban or alQaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners including any person who has committed a belligerent act or has directly supported hostilities in aid of such enemy armed forces e Several of the Guantanamo habeas petirioners as well as some commentators have argued that in a noninternational conflict of this sort the laws of war and or the AUMF do not permit the United States to treat persons who are part ofal-Qaida as analogous to members ofan enemy's armed forces in a traditional international armed conflict bue that the United States instead must treat all such persons as civilians which they contend would permit targeting those persons only when they nrc directly participating in hostilities Cf also al- farri 534 F 3d at 237-47 Mott J concurring i n the judgment and writing for four of nine judges arguing that the AUMF and the Constitution as informed by the laws of war do not pennit military detention of an alien residing in the United States whom the government alleged was closely associated with al-Qaida and that such individual must instead be treated as a civilian because that person is not affiliated with the military ann of an enemy nation Philip Alston Report of the Special Rapporteur on extrajudicial summary or arbitrary executions 58 at J 9 United Nations Huma '1 Rights Council Fourteenth Session Agenda Item 3 May 28 2010 Report of the Special Rapporteur reasoning because H uJnder the international humanitarian law applicable to non-international anned conflict there is no such thing as a 'combatant'''-i e a non-state actor entitled to the combatant's privilege-it follows that States are permitted to attack only civilians who 'directly participate in hostilities ' Primarily for the reasons that Judge Walton comprehensively examined in the Gherebi case see 609 F Supp 2d at 62-69 we do not think this is tile proper understanding ofrlle laws of war in a non-international armed conflict or of Congress's authorization under the AUMF Cf also International Committee of the Red Cross InterprelNe Guidance on the Notion of Direct Participation in Hostilities Under international Humanilarian Law 28 34 2009 even if an individual is otherwise a citizen for purposes of the laws of war a member ofa non-state armed group can be subject to targeting by virtue of having assumed a continuous combat fUllction on behalf of that group Alston supra 65 at 30-3 J acknowledging that under the IeRe view if armed group members take on 0 continuous command function they can be targeted anywhere and at any time infra a137-38 explaining that al-Aulaqi is continually and actively participating in hostilities and thus not protected by Common Article 3 of the Geneva Conventions 29 See also Al Odah v Dbama No 09-5331 2010 WL 2679752 at and other D C Circuit cases cited therei n D C Cir 2010 AUMF gives United States the authority to detain a person who is part of' al-Qaida or Taliban forces Hamlily 616 F Supp 2d at 74 Bates J Gherebi 609 F Supp 2d at 67 Walton 1 Mattan v Obama 618 F Supp 2d 24 26 D D C 2009 Lamberth C J Al Mutairi v United States 644 F Supp 2d 78 85 D D C 2009 Kollar-Kotelly J Awadv Obama 646 F Supp 2d 20 23 D D C 2009 Robertson J Anam v Obama 653 F Supp 2d 62 64 D D C 2009 Hogan J Hatim Y Obama 677 F Supp 2d 7 D D C 2009 Urbina J AI-Adahi v Obama No 05-280 2009 WL 2584685 D D C Aug 21 2009 Kessler J rev 'd on other grounds No 09-5333 D c Cir July 3 2010 - 22 Case 13-422 Document 229 Page 79 06 23 2014 1254659 97 Hamdi that this authorization applied even though the Taliban member in question was a U S citizen ld at 519-24 see also Quirin 317 U S at 37-38 c itizens who associate themselves with the military ann of the enemy government and with its aid guidance and direction enter the United States bent on hostile acts may be treated as enemy belligerents under the law of war Furthennore lower federal courts have relied upon Hamdi to conclude that the AUMF authorizes DoD to detain individuals who are part of al-Qaida even if they are apprehended and transferred to U S custody while not on a traditional battlefield See e g Bensayah v Obama No 08-5537 2010 WL 2640626 at 1 5 8 D C Cir June 28 20lO concluding that the Department of Defense could detain an individual turned over to the U S in Bosnia if it demonstrates he was part ofaI-Qaida AI-Adahi v Obama No 09-5333 D C CiT July 13 2010 DoD has authority under AUMF to detain individual apprehended by Pakistani authorities in Pakistan and then transferred to U S Anam v Obama 2010 WL 58965 D D C 2010 same Razak Ali v Obama 2009 WL 4030864 D D C 2009 same Slili v Bush 592 F Supp 2d 46 D D C 2008 same In light of these precedents we believe the AUMF's authority to use lethal force abroad also may apply in appropriate circumstances to a United States citizen who is part of the forces of an enemy organization 1thin the scope of the force authorization The use oflethal force against such enemy forces like military detention is an ' important incident of war ' Hamdi 542 U S at 518 plurality opinion quotation omitted See e g General Orders No 1 00 Instructions for the Government of Armies of the Untied States in the Field fi 15 Apr 24 1863 the Lieber Code m iIitary necessity admits of all direct destructiO'n of life or limb of anned enemies International Committee of the Red Cross Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 Aug 1949 and Relating to the Protection of Victims ofNon-International Armed Conflicts Additional Protocol JJ 4789 1987 Yoram Dinstein The Conduct of Hostilities Under the LCI'r' ' of International Armed Conflict 94 2004 Conduct of Hostilities Vhen a person takes up arms or merely dons a uniform as a member of the anned forces he automatically exposes himself to enemy attack And thus just as the AUMF authorizes the military detention of a U S citizen captured abroad who is part of an armed force within the scope of the AUMF it also authorizes the use of necessary and appropriate lethal force against a U S citizen who has joined such an armed force Moreover as we explain further in Part VI DoD would conduct the operation in a manner that would not violate any possible constitutional protections that aI-Aulaqi enjoys by reason of his citizenship Accordingly we do not believe aJ-Aulaqi' s citizenship provides a basis for concluding that he is immune from a use of force abroad that the AUMF othern1se authorizes In detennining whether the contemplated DoD operation would constitute the lawful conduct O'fwar Lafave Substantive Criminal LaY' 1O 2 c at 136 we next consider whether that operation would comply with the intemational1aw rules to which it would be subjcct-a question that also bears on whether the operation would be authorized by the AUMF See Response for Petition for Rehearing and Rehearing En Banc At Bihani v Obama No 09-505 J at 7 D C Cir May 13 2010 AUMF should be construed if possible as consistent with intemationallaw citing lvfurray v Schooner Charming Betsy 6 U S 2 Cranch 64 118 1804 an act of Congress ought never to' be construed to' violate the law of nations if any other possible construction remains see also F HojJman-La Roche Ltd v Empagran S A 542 U S 155 164 2004 customary international law is law that we must assume Congress ordinarily 23 Case 13-422 Document 229 Page 80 06 23 2014 1254659 97 seeks to follow Based on the combination of facts presented to us we conclude that DoD would carry out its operation as part of the non-international armed conflict between the United States and al-Qaida and thus that on those facts the operation would comply with international law so long as DoD would conduct it in accord with the applicable laws of war that govern targeting in such a conflict In Hamdan v Rumsfeld the Supreme Court held that the United States is engaged in a non-international anned conflict with al-Qaida 548 U S 557 628-31 2006 In so holding the Court rejected the argument that non-international armed conflicts are limited to civil wars and other internal conflicts between a state and an internal non-state anned group that are confined to the tenitory of the state itself it held instead that a conflict between a transnational non-state actor and a nation occurring outside that nation's territory is an armed conflict not of an international character quoting Common Article 3 of the Geneva Conventions because it is not a clash between nations Jd at 630 Here tmlike in the contemplated DoD operation would occur in Yemen a location that is far from the most active theater of combat between the United States and alQaida That does not affect our conclusion however that the combination of facts present here would make the DoD operation in Yemen part of the non-international armed conflict vlth a1Qaida 3D To be sure Hamdan did not directly address the geographic scope of the noninternational armed conflict benveen the United States and al-Qaida that the Court recognized other than to implicitly hold that it extended to Afghanistan where Hamdan was apprehended See 548 U S at 566 see also id at 641-42 Kennedy J concurring in part refen-ing to Common Article 3 as applicable to our Nation's anned conflict with al Qaeda in Afghanistan TIle Court did however specifically reject the argument that non-international armed conflicts are necessarily limited to internal conflicts The ConUTIon Article 3 tenn conflict not of an international character the Court explained bears its literal meaning -namely that it is a conflict that does not involve a clash between nations ld at 630 majority opinion The Court referenced the statement in the 1949 JCRC Commentary on the Additional Protocols to the Geneva Conventions that a non-international amled conflict '''is distinct from an international armed conflict because ojthe legal status ojthe entities opposing each other ' id at 631 emphasis added The Court explained that this interpretation-that the nature of the conflict depends at least in part on the status of the parties rather than simply on the locations in which they tight-in tum accords with the view expressed in the commentaries to the Geneva Conventions that the scope of application of Common Article 3 which establishes basic protections that govern conflicts not of an international character must be as wide as possible ' ld 31 30 Our analysis is limited to the circumstances presented here regarding the contemplated use oflethal force in Yemen We do not address issues that a use of force in other locations might present See also supra note 1 31 We think it is noteworthy that the AUMF itself does not set forth an express geographic limitation on the use of force it authorizes and that nearly a decade after its enactment none of the three branches of the United States Government has identified a strict geographical limit on the pemissible scope of the authority the AUMF confers on the President with respect to this armed conflict See e g Letter from the President to the Speaker of the House of Representatives and the President Pro Tempore of the Senate June 15 20 I0 reporting consistent with the War Powers Resolution that the armed forces with the assistance of numerous international partners 24 Case 13-422 Document 229 Page 81 06 23 2014 1254659 97 Invoking the principle that for purposes of international law an armed conflict generally exists only when there is 'protracted armed violence between governmental authorities and anned groups Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction Prosecutor v Tadic Case No IT-94-IAR72 70 ICTY App Chamber Oct 2 1995 Tadic Jurisdictional Decision some commentators have suggested that the conflict between the United States and al-Qaida carmot extend to nations outside Afghanistan in which the level of hostilities is less intense or prolonged than in Afghanjstan itself See e g Mary Ellen O'Connell Combatants and the Combat Zone 43 U Rkh L Rev 845 857-59 2009 see also Philip Alston Report a the Special Rapporteur on extrajudicial summaty or arbitrary executions 54 at 18 United Nations Human Rights Council Fourteenth Session Agenda Item 3 May 28 2010 acknowledging that a non-international armed conflict can be transnational and often does exist across State borders but explaining that the duration and intensity of attacks in a particular nation is also among the cumulative factors that must be considered for the objective existence of an armed conflict There is little judicial or other authoritative precedent that speaks directly to the question of the geographic scope of a non-international anned conflict in which one of the parties is a transnational non-state actor and where the principal theater of operations is not within the territory of the nation that is a party to the conflict Thus in considez1ng this issue we must look to principles and statements from analogous contexts recognizing that they were articulated without consideration of the particular factual circumstances of the sort of conflict at issue here In looking for such guidance we have not come across any authority for the proposition that when one of the parties to an anned conflict plans and executes operations from a base in a new nation an operation to engage the enemy in that location can never be part of the original armed conflict-and thus subject to the laws of -var governing that conflict-unless a ld until the hostilities become sufficiently intensive and protracted within that new location That does not appear to be the rule or the historical practice for instance in a traditional international conflict See John R Stevenson Legal Adviser Department of State UniIed States Military Action in Cambodia Questions 0 International Lcnv address before the Hammarskjold Forum of the Association of the Bar of the City of New York May 28 1970 in 3 The Vietnam War and International Law The Widening Context 23 28-30 Richard A Falk ed 1972 arguing that in an international armed conflict if a neutral state has been unable for any reason to prevent violations of its neutrality by the troops of one belligerent using its territory as a base of operations the other belligerent has historically been justified in attacking those enemy forces in that state Nor do we see any obvious reason why that more categorical nation-specific rule should govern in analogous circumstances in this sort of non-international anned conflict 32 continue to conduct operations against al-Qa'ida terrorists and that the United States has deployed combatequipped forces to a number of locations in the U S Central Conunand area J of operation in support of those overseas counter-terrorist operations Letter for the Speaker of the House of Representatives and the President Pro Tempore of the Senate from President Barack Obarna Dec 16 2009 similar DoD May 18 Memorandumfor OLC at 2 expJaining that U S armed forces have conducted AQAP targets in Yemen since December 2009 and that DoD has reported such strikes to the appropriate congressional oversight committees J2 In the speech cited above Legal Adviser Stevenson was referring to cases in which the government of the nation in question is lillable to prevent violations of its neutrality by belligerent troops 25 Case 13-422 Document 229 Page 82 06 23 2014 1254659 97 Rather we think the determination of whether a particular operation would be part of an ongoing anned conflict for purposes of international law requires consideration of the particular facts and circumstances present in each case Such an inquiry may be particularly appropriate in a conflict of the sort here given that the parties to it include transnational non-state organizations that are dispersed and that thus may have no single site serving as their base of operations 33 We also find some support for this view in an argument the United States made to the International Criminal Tribunal for Yugoslavia ICTY in 1995 To be sure the United States was there confronting a question and a conflict quite distinct from those we address here Nonetheless in that case the United States argued that in determining which body of hwnanitarian law applies in a particular conflict the conflict must be considered as a whole and that it is artificial and improper to attempt to divide it into isolated segments either geographically or chronologically in an attempt to exclude the application of the relevant rules Submission of the Government of the United States of America Concerning Certain Arguments Made by Counsel for the Accused in the Case of The Prosecutor a the Tribunal v Dusan Tadic Case No IT-94-I AR72 ICTY App Chamber at 27-28 JuJy 1995 U S Tadic Submission Likewise the court in Tadic-although not addressing a conflict that was transnational in the way the U S conflict with aI-Qaida is-also concluded that although the deflnition of 'armed conflict' varies depending on whether the hostilities are international or internal the scope of both internal and international armed conflicts extends beyond the exact time andplace ofhostilities Tadic Jurisdictional Decision fl67 emphasis added see also International Committee of the Red Cross International Humanitarian Law and the Challenges a Contemporary Armed Conflicts 18 2003 asserting that in order to assess whether an armed conflict exists it is necessary to determine whether the totality oftbe viofence taking place between states and transnational networks can be deemed to be armed conflict in the legal sense Although the basic approach that the United States proposed in Tadic and that the ICTY may be understood to have endorsed was advanced without the current conflict between the U S and al-Qaida in view that approach reflected a concern v ith ensuring that the laws of war and the limitations on the use of force they establish should be given an appropriate application 34 And that same consideration reflected in Hamdan itself see supra at 24 suggests 3J The fact that the operation occurs in a new location might alter the way in which the military must apply the relevant principles of the Jaws of war-for example requiring greater care in some locations in order to abide by the principles of distinction and proportionality that protect civilians from the use of military force But that possible distinction should not affect the question of whether the laws of war govern the conflict in that new location in the Erst instance See also Geoffrey S Com Eric Talbot Jensen Untying the Gordian Knot A Proposalfor Determining Applicability o the Laws a War to he War on Terror 81 Temp L Rev 787 799 2008 If the ultimate purpose of the drafters of the Geneva Conventions was to prevent 'law avoidance' by developing de facto law triggers--a purpose consistent with the humanitarian foundation of the treaties--then the myopic focus on the geographic nature of an armed conflict in the context of transnational counterterrorist combat operations serves to frustrate that purpose cf also Derek Jinks September 11 and the Laws o War 28 Yale J lnt'l L 1 40-41 2003 arguing that if Common Article 3 applies to wholly internal conflicts then it applies a fortiori to armed conflicts with international or transnational dimensions such as to the United States's armed conflict with al-Qaida 26 Case 13-422 Document 229 Page 83 06 23 2014 1254659 97 a further reason for skepticism about an approach that would categorically deny that an operation is part of an anned conflict absent a specified level and intensity of hosti Iities in the particular location where it occurs For present purposes in applying the more context-specific approach to detennining whether an operation would take place within the scope of a particular armed conflict it is sufficient that the facts as they have been represented to us here in combination support the judgment that DoD's operation in Yemen would be conducted as part of the non-international armed conflict between the United States and al-Qaida Specifically DoD proposes to target a leader of AQAP an organized enemy force 35 that is either a component of al-Qaida or that is a co-belligerent of that central party to the conflict and engaged in hostilities against the United States as part of the same comprehensive rmed conflict in league with the principal enemy See supra at 9-10 n S More over DoD would conduct the operation in Yemen where according te-the facts related to us AQAP has a significant and organized presence and from which AQAP is conducting terrorist training in an organized manner and has executed and is planning to execute attacks against the United States Finally the targeted individual himself on behalf of that force is continuously planning attacks from that Yemeni base of operations against the United States as the conflict with aI-Qaida continues See supra at 7-9 Taken together these facts support the conclusion that the DoD operation would be part of the non-international armed conflict the Court recognized in Hamdan 6 3 1 Cf Prosecutor v Haradnizaj No IT-04-84-T 60 leTY Trial Chamber I 2008 an armed conflict can exist only between parties that are sufficiently organized to confront each other with military means-a condition that can be evaluated with respect to non-state groups by assessing several indicative factors none of which are in themselves essential to establish whether the oorganization ' criterion is fulfilled including among other things the existence of a command structure and disciplinary rules and mechanisms within the group the ability of the group to gain access to weapons other military equipment recruits and military training and its ability to plan coordinate and carry out military operations 36 We note that the Department of Defense which has a policy of compliance with the law of war during all armed conflicts however such conflicts are characterized and in all other military operatiOns Chairman of the Joint Chiefs of Staff Instruction 5810 01D Implementation o the DoD Law o War Program 4 a at I Apr 30 2010 emphasis added has periodically used force--albeit in contexts different from a conflict such as this-in situations removed from active battlefields in response to imminent threats See e g Nat'l Comm'n on Terrorist Attacks Upon the United States The 9 11 Commission Report 116-17 2004 describing 1998 cruise missile attack on al-Qaida encampments in Afghanistan following al-Qaida bombings of U S embassies in East Africa W Hays Parks Memorandum 0 Law Executive Order J2333 and Assassination Army Lawyer at 7 Dep't of Anny Pamphlet 27-50-204 Dec 1989 Assassination at 7 n 8 noting examples of uses of military force in sJelf defense against a continuing threat including ''the U S Navy air strike against Syrian military objections in Lebanon on 4 December 1983 following Syrian attacks on U S Navy F-14 TARPS flights supporting the multinational peacekeeping force in Beirut the preceding day and air strikes against terrorist-related targets in Libya on the evening of 15 April 1986 see also id at 7 A national decision to employ military force in self defense against a legitimate terrorist or related threat would not be unlike the employment of force in response to a threat by conventional forces only the nature of the threat has changed rather than the intemationallegal right of self dcfense The terrorist organizations envisaged as appropriate to necessitate or warrant an armed response by U s forces are welI-financed highly-organized paramilitary structures engaged in the illegal use of force Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons 42 1996 I e J 226 245 Nuclear Weapons Advisory Opinion fundamemallaw-of-war nonns are applicable even where military force might be employed outside the context of an armed conflict such as when using powerful weapons in an act of national self-defense cf also 9 Commission Report a1'1 16-17 noting the Clinton Administration position-with respect to a presidential memorandum authorizing CIA assistance to an operation that could result in the killing of Usarna Bin Ladin if the CIA and the tribals judged that capture was not feasible --that under the law of armed 27 Case 13-422 Document 229 Page 84 06 23 2014 1254659 97 There remains the question whether DoD would conduct its operation in accord with the rules governing targeting in a non-international armed conflict-namely international humanitarian law commonly known as the laws of war See Dinstein Conduct of Hostilities at 17 international hwnanitarian law takes a middle road allowing belligerent States much leeway in keeping with the demands of military necessity and yet circumscribing their freedom of action in the name ofhumanitarianism 37 The 1949 Geneva Conventions to which the United States is a party do not themselves directly impose extensive restrictions on the conduct ofa non-international armed conflict-with the principal exception of Common Article 3 see Hamdan 548 U S at 630-31 But the norms specifically described in those treaties are not exclusive and the laws and customs of war also impose limitations on the conduct of participants in non-international armed conflict U S Tadic Submission at 33 n 53 see also e g Convention Respecting the Laws and Customs of War on Land Oct 18 1907 Preamble Hague Convention IV 36 Stat 2277 2280 in cases not included under the treaty the inhabitants and the belligerents remain under the protection and the ruJe of the principles of the law of nations as they result from the usages among civilized peoples from the laws of humanity and the dictates of the public conscience In particular the fundamental rules and intransgressible principles of international customary law Advisory Opinion of8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons fl79 1996 I e 226 257 Nuclear Weapons Advisory Opinion which apply to all anned conflicts include the four fundamental principles that are inherent to all targeting decisions -namely military necessity humaruty the avoidance of tmnecessary suffering proportionality and distinction United States Air Force Targeting Air Force Doctrine Document 2- 1 9 at 88 June 8 2006 see also generally id at 88-92 Dinstein Conduct of Hostilities at 16-20 115-16 119-23 Such fundamental rules also include those listed in the annex to the Fourth Hague Convention see Nuclear Weapons Advisory Opinion 80 at 258 article 23 ofwhlch makes it especially forbidden to inter alia kill or wound treacherously ref' sc surrender declare a denial of quarter or cause wmecessary suffering 36 Stat at 2301-02 conflict killing a person who posed an imminent threat to the United States would be an act of self-defense not an assassination As we explain below DoD likewise would conduct the operation contemplated here in accord with the laws of war and would direct its lethal force against an individual whose activities have been detennined to pose a continued and imminent threat to U S persons and int erests J7 Cj Nuclear Weapon s Advisory Opinion 25 1996 I e at 240 explaining that the test of what constitutes an arbitrary taking of life under international human rights law such as under article 6 l of the International Covenant of Civil and Political rughts ICCPR must be determined by the law applicable in armed conflict which is designed to regulate the conduct of hostilities and can only be decided by reference to the law applicable in anned conflict and not deduced from tenDS of the Covenant itself' Written Statement of the Government of the United States of America before the International Court of Justice Re Request by the United Nations Genera Assembly for an Advisory Opinion on he Legality of he Threat or Use ofNuclear Weapons at 44 June 20 1995 lCCPR prohibition on arbitrary deprivation oflife was clearly understood by its drafters to exclude the lawful taking of human life including killings lawfully committed by the military in time of war Dinstein Conducl of Hostilities at 23 right to life under human rights law does not protect persons from the ordinary consequences of hostilities cf also infra Part VI explaining that the particular contemplated operations here would satisfy due process and Fourth Amendment standards because inter alia capturing al-Aulaqi is currently infeasible ' 28 Case 13-422 Document 229 Page 85 06 23 2014 1254659 97 DoD represents that it would conduct its operation against al-Aulaqi in compliance vith these fundamentallaw-of-war nonns See Chainnan of the Joint Chiefs of Staff Instruction S8lO 0ID Implementation o the DoD Law o War Program 4 a at 1 Apr 30 2010 It is DOD policy that mJembers of the DOD Components comply with the law of war during alJ armed conflicts however such conflicts are characterized and in all other military operations In particular the targeted nature of the operation would help to ensure that it would comply with the principle of distinction and DoD has represented to us that it would make every effort to minimize civilian casualties and that the officer who launches the ordnance would be required to abort a strike if he or she concludes that civilian casualties will be disproportionate or that such a strike will in any other respect violate the laws of war See DoD May J8 Memorandum or OLC at 1 Any official in the chain of command has the authority and duty to abort a strike ifhe or she concludes that civilian casualties will be disproportionate or that such a strike will otherwise violate the laws of war Moreover althtmgh DoD would specifically target al-Aulaqj and would do so without advance warning such characteristics of the contemplated operation would not violate the laws of war and in particular would not cause the operation to violate the prohibitions on treachery and perfidy-which are addressed to conduct involving a breach of confidence by the assailant See e g Hague Convention IV Annex art 23 b 36 Stat at 2301-02 I t is especially forbidden to kill or wound treacherously individuals belonging to the hostile nation or army cf also Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Anned Conflicts art 37 1 prohibiting the killing injuring or capture of an adversary in an international armed conflict by resort to acts inviting the confidence of the adversary _ vlith intent to betray that confidence including feigning a desire to negotiate under truce or flag of surrender feigning incapacitation and feigning noncombatant status 38 Those prohibitions do not categorically preclude the use of stealth or surprise nor forbid military attacks on identified individual soldiers or officers see U S Army Field Manua127-10 31 1956 article 23 b of the Annex to the Hague Convention IV does not preclude attacks on individual soldiers or officers of the enemy whether in the zone of hostilities occupied territory or else-where and we are not aware of any other law-of-war grounds precluding the use of such tactics See Dinstein Conduct 0 Hostilities at 94-95 199 Abraham D Sofaer Terrorism The Law and the National Defense 126 Mil L Rev 89 120-21 1989 39 Relatedly there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict-such as pilotless aircraft or so-called smart 32 Although the United States is not a party to the First Protocol the State Department has announced that we support the principle that individual combatants not kill injure or capture enemy personnel by resort to perfidy Remarks of Michael J Matheson Deputy Legal Adviser Department of State The Sixth Annual American Red Cross-Washington College of Law Conference on Illternational Humanitarian Law A Workshop on Customary international Law and the 1977 Protocols Additional fo the 1949 Geneva Conventions 2 Am U J oflnt'l L Pol'y 4 J5 425 1987 U 39 There is precedent for the United States targeting attacks against particular commanders See e g Patricia Zengel Assassination and the Law ojArmed Conflict 134 Mil L Rev 123 136-37 1991 describing American warplanes' shoot-down during World War II of plane carrying Japanese Admirallsoroku Yamamoto see also Parks Assassination Anny Lawyer at 5 29 Case 13-422 Document 229 Page 86 06 23 2014 1254659 97 bombs-as long as they are employed in confonnity with applicable laws of war Koh The Obama Administration and international Law DOD also informs us that if al-Aulaqi offers to surrender DoD would accept such an offer 40 - In light of all these circumstances we believe DoD's contemplated operation against alAulaqi would comply with international law including the laws of war applicable to this armed conflict and would faU within Congress's authorization to use necessary and appropriate force against al-Qaida In consequence the operation should be understood to constitute the lawfuJ conduct of war and thus to be encompassed by the public authority justification Accordingly the contemplated attack if conducted by DoD in the manner described would not result in an unlawful killing and thus would not violate section 11 19 b B We next consider whether the CIA's contemplated operation against al-Aulaqi in Yemen would be covered by the public authority justification We conclude that it would be and thus that operation too would not result in an unlawful killing prohibited by section 1119 As with our analysis of the contemplated DoD operation we rely on the sufficiency of the particular factual circumstances of the CIA operation as they have been represented to us without detennining that the presence of those specific circumstances would be necessary to the conclusion we reach 40 See Geneva Conventions Common Article 3 1 prohibiting violence to life and person in particular murder of all kinds with respect to persons taking no active part in the hostilities in a non-international anned conflict including members of armed forces who have laid down their anns see also Hague Convention IV Annex art 23 c 37 Stat at2301-02 it is especially forbidden t o kill or wound an enemy who having laid down his arms or having no longer means of defence has surrendered at discretion id art 23 d forbidding a declaration that no quarter will be given 2 William Winthrop Military Law and Precedents 788 J 920 The time has long passed when 'no quarter' was the rule on the battlefield or when a prisoner could be put to death simply by virtue of his capture 30 31 Case 13-422 Document 229 Page 88 06 23 2014 1254659 97 We explain in Part VI why the Constitution would impose no bar to the CIA's contemplated operation under these circumstances based on the facts as they have been represented to us There thus remains the question whether that operation would violate any statutory restrictions which in turn requires us to consider whether 18 U S C 1119 would apply to the contemplated CIA operation 42 Based on the combination of circumstances that we understand would be present we conclude that the public authority justification that section 1119 incorporates-and that would prevent the contemplated DoD operation from violating section 1119 b -would also encompass the contemplated CIA o 43 operatIOn 42 We address potential restrictions ili osed by two other criminal laws-l 8 U S c 956 a and 244 l in Parts IV and V of this opinion We note in addition that the lawful conduct of war variant of the public authority justification although often described with specific reference to operations conducted by the armed forces is no necessarily limited to operations by such forces some descriptions oftha variant of the justification for example do not imply such a limitation See e g Frye 10 Cal Rptr 2d at 221 n 2 homicide done under a valid public authority such as execution of a death sentence or killing an enemy in a time of war Perkins Boyce Criminal Law at 1093 the killing ofan enemy as an act of war and within the rules of war 32 Case 13-422 Document 229 Page 89 06 23 2014 1254659 97 Specifically we understand that the CIA like DoD would carr ' out the attack against an operational leader of an enemy force as Dart of the United States's ongoing non-international armed conflict with al-Qaida - lilie CIA-would conduCl the operation in a manner that accords with the rules of international humanitarian law governing this armed conflict and in circumstances See supra at 10_11 44 44 - lfthe killing by a member of the anned forces would comply with the law of war and otherwise be lawful actions of CIA officials facilitating that killing should also not be unlawful See e g Shoot Down Opinion at 165 n 33 O ne cannot be prosecuted for aiding and abetting the commission ofan act that is not itself a crime citing Shuttlesworth v City ofBirmingham 373 U S 262 1963 Nor would the fact that CIA personnel would be involved in the operation itself cause the operation to violate the laws of war It is true that CIA personnel by virtue of their not being part of the anned forces would not enjoy the immunity from prosecution under the domestic law of the countries in which they act for their conduct in targeting and killing enemy forces in compliance with the laws of war-an immunity that the armed forces enjoy by virtue of their status See Report of the Special Rapporteur 71 at 22 see also Dinstein Conduct of Hostilities at 31 Nevertheless lethal activities Conducted In accord with the laws of war and Wldertaken in the course of lawfully authorized hostilities do not violate the laws a war by virtue of the fact that they are carried out in part by government actors who are not entitled to the combatant's privilege The contrary view arises from a fundamental confusion between acts punishable Wlder international law and acts with respect to which international law affords no protection Rkhard R Baxter So-Called Unprivileged Belligerency Spies Guerillas and Saboteurs 28 Brit Y B Int' L 323 342 1951 the law of nations has not ventured to require of states that they refrain from the use of secret agents or that these activities upon the part of their military forces or civilian popUlation be punished Accord Yoram Dinstein The Distinction Between Unlawful Combatants and War Criminals in international Law at a Time of Perplexity Essays in Honour ofShabtai Rosenne 103-16 Y Dinstein ed 1989 Statements in the Supreme Court's decision in Ex parte Quirin 317 U S 1 1942 are sometimes cited for the contrary view See e g id at 36 n 12 suggesting that passing through enemy lines in order to commit any hostile act while not in uniform renders the offender Jiable to trial for violation of the laws of war id at 3 enemies who come secretly through the lines for purposes of waging war by destruction oflife or property without uniform not only are generally not to be entitled to the status of prisoners of war but also to be offenders against the law of war subject to trial and punishment by military tribunals Because the Court in Quirin focused on conduct taken behind enemy lines it is not clear whether the Court in these passages intended to refer only to conduct that would constitute perfidy or treachery To the extent the Court meant to suggest more broadly that any hostile acts perfonned by unprivileged belligerents are for that reason violations of the laws of war the authorities the Court cited the Lieber Code and Colonel Winthrop's military law treatise do not provide clear support See John C Dehn The Hamdan Case and the Application of a Municipal OjJellSe 7 J Int'l Crim J 63 73-79 2009 see also Baxter So-Caffed Unprivileged Belligerency 28 Brit Y B Int'l L at 339-40 Michael N Schmitt Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees 5 Chi J Int'I L 511 521 n 45 2005 W Hays Parks Special Forces' Wear of Non-Standard Uniforms 4 Chic J Int'l L 493 51 q-ll n 3 J 2003 We note 33 Case 13-422 Document 229 Page 90 06 23 2014 1254659 97 Nothing in the text or legislative history of section 1119 indicates that Congress intended to criminalize such an operation Section 1119 incorporates the traditional public authority justification and did not impose any special limitation on the scope of that justification As we have explained supra at 17-19 the legislative history of that criminal prohibition revealed Congress's intent to close a jurisdictional loophole that would have hindered prosecutions of murders carried out by private persons abroad It offers no indication that Congress intended to prohibit the targeting of an enemy leader during an armed conflict in a manner that would accord with the laws of war when performed by a duly authorized government agency Nor does it indicate that Congress in closing the identified loophole meant to place a limitation on the CIA that would not applv to DoD Thus we conclude that just as Congress did not intend section 1119 to bar the particular attack that DoD contemplates neither did it intend to prohibit a virtually identical attack on the same target in the same authorized conDict and in similar compliance with the laws of war that the CIA would carry out in accord wi th in this regard that DoD's current Manual for Military Commissions does not endorse the view that the commission ofan unprivileged belligerent act without more constitutes a violation of the international Jaw of war See Manual for Military Commissions Part IV 5 13 Comment at lV-l J 2010 ed Apr 27 2010 murder or infliction of serious bodily injury committed while the accused did not meet the requirements of privileged belligerency can be tried by a military commission even ifsuch conduct does not violate the international law of war As one example the Senate Report pointed to the Department of Justice's conclusion that the Neutrality Ac 18 U S C 960 prohibits conduct by private parties but is not applicable to the CIA and other government agencies fd The Senate Report assumed that the Department's conclusion about the Neutrality Act was premised on the assertion that in the case of government agencies there is an absence of the mens rea necessary to the offense Jd In fact however this Office's conclusion about that Act was nol based on questions of mens rea but instead on a careful analysis demonstrating that Congress did not intend the Act despite its words of general applicability to apply to the activities of government officials acting within the course and scope of their duties as officers of the United States See Application ofNeurrality Act to Ojj1cio Government Activities 8 Op O L C 58 J 984 34 Case 13-422 Document 229 Page 91 06 23 2014 1254659 97 See also infra at 3 8-41 explaining that the eM operation under the circumstances described to us would comply vrith constitutional due process and the Fourth__Amcndment's reasonableness test for the use of deadly force Accordingly we conclude that just as the combination of circumstances present here supports the judgment that the public authority juS'tification would apply to the contemplated operation by the armed forces the combination of circumstances also supports the judgment that the CIA's operation too would be encompassed by that justification The CIA's contemplated operation therefore would not result in an unlawful killiIlP' 'mder section 1111 and thus would not violate section 1 1 1 9 IV For similar reasons we conclude that the contemplated DoD and CIA operations would not violate another federal criminal statute dealing vrith murder abroad 18 U S c 956 a That law makes it a crime to conspire Vlithin the jurisdiction of the United States to commit at any place outside the United States an act that would constitute the offense of murder kidnapping or maiming if committed in the special maritime and territorial jurisdiction of the United States if any conspirator acts within the United States to effect any object ofthe conspiracy 46 Cf also VISA Fraud Investigation 8 Op O L c at 287 applying similar analysis in evaluating the effect of criminal prohibitions on certain otherwise authorized law enforcement operations and explaining that courts have recognized it may be lawful for law enforcement agents to disregard otherwise applicable laws when taking action that is necessary to attain the pennissibJe law enforcement objective when the action is carried out in a reasonable fashion id at 288 concluding that issuance ofan otherwise unlawful visa that was necessary for undercover operation to proceed and done in circumstances- foT a limited purpose and under close supervision --lhat were reasonable did not violate federal statute 35 Case 13-422 Document 229 Page 92 06 23 2014 1254659 97 Like section 1 119 b section 956 a incorporates by reference the understanding of murder in section 1111 of title 18 For reasons we explained earlier in this opinion see supra at 12-14 section 956 a thus incorporates the traditional public authority justification that section 1111 recognizes As we have further explained both the CIA and DoD operations on the facts as they have been represented to us would be covered by tha1 justification Nor do we believe that Congress's reference in section 956 a to ''the special maritime and territorial jurisdiction of the United States reflects an intent to transfonn such a killing into a murder in these circumstances-notwithstanding that our analysis of the applicability of the public authority justification is limited for present purposes to operations conducted abroad A contrary conclusion would require attributing to Congress the surprising intention of criminalizing through section 956 a an otherwise lawful killing of an enemy leader that another statute specifically prohibiting the murder of U S nationals abroad does not prohibit -The Jegislative rustory of section 956 a further confinns our conc1us ion that that statute should not be so construed When the provision was first introduced in the Senate in 1995 its sponsors addressed and rejected the notion that the conspiracy prohibited by that section would apply to duly authorized actions undertaken on behalf of the federal government Senator Biden introduced the provision at the behest of the President as part of a larger package of antiterrorism legislation See 141 Congo Rec 4491 1995 statement of Sen Biden He explained that the provision was designed to fill a void in the law because section 956 at the time prohibited only U S -based conspiracies to commit certain property crimes abroad and did not address crimes against persons Id at 4506 The amendment was designed to cover an offense committed by terrorists and was intended to ensure that the government is abJe to punish those persons who use the United States as a base in which to plot such a crime to be carried out outside the jurisdiction of the United States Jd Notably the sponsors of the new legislation deliberately declined to place the new offense either within chapter 19 of title 18 which is devoted to Conspiracy or vvithin chapter 51 which collects Homicide offenses including those established in sections 1111 1112 1113 and 1119 Instead as Senator Biden explained s cction 956 is contained in chapter 45 of title 18 United States Code relating to interference with the foreign relations of the United States and thus was intended to coverO those individuals who without appropriate govenunental authorization engage in prohibited conduct that is harmful to the foreign relations of the United States Id at 4507 Because as Senator Biden explained the provision was designed like other provisions of chapter 45 to prevent private interference with U S foreign relations iJt is not intended to apply to duly authorized actions undertaken on behalf of the United States Government Id see also 8 Op O L e 58 1984 concluding that section 5 of the Neutrality Act 18 U S C 960 which is also in chapter 45 and which forbids the planning of or participation in military or naval expeditions to be carried on from the United States against a foreign state with which the United States is at peace prohibits only persons acting in their private capacity from engaging in such conduct and does not proscribe activities undertaken by government officials acting within the course and scope of their duties as United States officers Senator Daschle expressed this same understanding when he introduced the identical provision in a different version of the anti-terrorism legislation a few months later See 141 Congo Rec 11 960 1995 statement of Sen Daschle Congress enacted the new section 956 a the following year as part of the Antiterrorism and Effective Death Penalty Act Pub L No 1 04-132 tit VII 704 a 110 Stat 1214 1294-95 1996 As far as 36 Case 13-422 Document 229 Page 93 06 23 2014 1254659 97 we have been able to determine the legislative history contains nothing to contradict the construction of s ection 956 a described by Senators Biden and Daschle Accordingly we do not believe sectioT 956 a would prohibit the contemplated operations v Ve next consider the potential application of the War Crimes Act 18 U S C 244 l which makes it a federal crime for a member of the Armed Forces or a national of the United States to commitO a war crime ld 2441 a Subsection 2441 c defines a war crime for purposes of the statute to mean any conduct i that is defined as a grave breach in any of the Geneva Conventions or any Geneva protocol to which the U S is a party ii that is prohibited by four specified articles of the Fourth Hague Convention of 1907 iii that is a grave breach of Common Article 3 of the Geneva Conventions as defmed elsewhere in section 2441 when committed in the context of and in association with an armed conflict not of an international character or iv that is a willful killing or infliction of serious injury in violation of the 1996 Protocol on Prohibitions or Restrictions on the Use of Mines Booby-Traps and Other Devices Of these the only subsection potentially applicable here is that dealing with Common Article 3 of the Geneva Conventions '47 In defining what conduct constitutes a grave breach of Common Article 3 for ptrrposes of the War Crimes Act subsection 2441 d includes murder desQribed in pertinent part as tJhe act of a person who intentionally kills or conspires or attempts to kill one or more persons taking no active part in the hostilities including those placed out of combat by sickness wOW1ds detention or any other cause 18 U S C 2441 d 1 D This language derives from Common Article 3 1 itself which prohibits certain acts including murder against p Jersons taking no active part in the hostilities including members of anned forces who have laid down their arms and those placed' hors de combat' by sickness wounds detention or any other cause See e g Geneva Convention Relative to the Treatment of Prisoners of War Aug 12 J 949 1955 art 3 1 6 U S T 3316 3318-20 Although Common Article 3 is most commonly applied with respect to persons within a belligerent party's control such as detainees the language of the article is not so limited-it protects all p ersons taking no active part in the hostilities in an armed conflict not of an international character Whatever might be the outer bounds of this category of covered persons we do not think it could encompass al-Aulaqi Common Article 3 does not alter the fundarnentallaw-of-war principle concerning a belligerent party's right in an armed conflict to target individuals who are part of an enemy's armed forces See supra at 23 The language of Common Article 3 makes clear that members of such anned forces of both the state and non-state parties to the conflict are considered as 'taking no active part in the hostilities' only once they have disengaged 47 The operations in question here would no involve conduct covered by the Land Mine Protocol And the articles of the Geneva Conventions to which the United States is currently a party other than Common Article 3 as well as the relevant provisions of the Annex to the Fourth Hague Convention apply by their tenus only to armed conflicts between two or more of the parties to the Conventions See e g Geneva Convention Relative to the Treatment of Prisoners of War Aug 12 1949 1955 art 2 6 U S T 3316 3406 37 Case 13-422 Document 229 Page 94 06 23 2014 1254659 97 from their fighting function 'have laid down their arms' or are placed hors de combat mere suspension of combat is insufficient International Committee of the Red Cross interpretive Guidance on the Notion ofDirect Participation in Hostilities Under International Humanitarian Law 28 2009 cf also id at 34 individuals whose continuous function involves the preparation execution or command of acts or operations amotlllting to direct participation in hostilities are assuming a continuous combat function in which case they can be deemed to be members of a non-state anned group subject to continuous targeting accord Gherebi v Obama 609 F Supp 2d 43 65 D D C 2009 the fact that 'members of armed forces who have laid down their arms and those placed hors de combat' are not 'taking an active part in the hostilities' necessarily implies that 'members of armed forces' who have not surrendered or been incapacitated are 'taking an active part in the hostilities' simply by virtue of their membership in those armed forces id at 67 Common Article 3 is not a suicide pact it does not provide a free pass for the members of an enemy's armed forces to go to or fro as they please so long as for example shots are not fired bombs are not exploded and places are not hijacked AIAulaqi an active high-level leader of an enemy force who is continually involved in planning and recruiting for terrorist attacks can on that basis fairly be said te be taking an active part in hostilities Accordingly targeting him in the circumstances posited to us would not violate Common Article 3 and therefore would not violate the Var Crimes Act VI We conclude with a discussion of potential constitutional limitations on the contemplated operations due to al-Aulaqi's status as a U S citizen elaborating upon the reasoning in our earlier memorandum discussing that issue Although we have explained above why we believe that neither the DoD or CIA operation would violate sections 1119 b 956 a and 2441 of title 18 of the U S Code the fact that a1-Aulaqi is a United States citizen could raise distinct questions under the Constitution As we explained in our earlier memorandum Barron Memorandum at 5-7 we do not believe al-Aulaqi's U S citizenship imposes constitutional limitations that would preclude the contemplated lethal action lJllder the facts represented to us by DoD the CIA and the Intelligence Community Because al-Aulaqi is a U S citizen the FitthAmendrnent's Due Process Clause as well as the Fourth Amendment likely protects him in some respects even while he is abroad See Reid v Covert 354 U S 1 5-6 1957 plurality opinion United States v Verdugo-Urquidez 494 U S 259 269-70 1990 see also In re Terrorist Bombings of us Embassies in East Africa 552 F 3d 157 170 n 7 2d Cir 2008 38 Case 13-422 Document 229 Page 95 06 23 2014 1254659 97 In Hamdi a plurality of the Supreme Court used the Mathews v Eldridge balancing test to analyze the Fifth Amendment due process rights of a U S citizen captured on the battlefield in Afghanistan and detained in the United States who wished to challenge the government's assertion that he was a part of enemy forces explaining that the process due in any given instance is determined by weighing 'the private interest that will be affected by the official action' against the Government's asserted interest 'including the function involved' and the burdens the Government would face in providing greater process 542 U S at 529 plurality opinion quoting Mathews v Eldridge 424 U S 319 335 1976 We believe similar reasoning supports the constitutionality of the contemplated operations here As explained above on the facts represented to us a decision-maker could reasonably decide that the threat posed by al-Aulaqi's activities to United States persons is continued and imminent 39 Case 13-422 Document 229 Page 96 06 23 2014 1254659 97 In addition to the nature of the threat posed by al-Aulaqi's activities both agencies here have represented that they intend to capture rather than target aI-Aulaqi if feasible yet we also understand that an operation by either agenc y al-Aulaqi in Yemen would be infeasible at this time Cj e g Public Committee Against Torture in Israel v Government of Israel He 769 02 40 46 LL M 375 394 Israel Supreme Court sitting as the High Court of Justice 2006 although arrest investigation and trial might actually be particularly practical under the conditions of belligerent occupation in which the army controls the area in which the operation takes place such alternatives are not means which can always be used either because they are impossible or because they involve a great risk to the lives of soldiers - Although in the circumstances of war as the Hamdi plurality observed tile risk of erroneous deprivation of a citizen's liberty in the absence of sufficient process is very real 542 U S at 530 the plurality also recognized that the realities of combat render certain uses of force necessary and appropriate including against U S citizens who have become part of enemy forces-and that due process analysis need not blink at those realities id at 531 we conclude that at least where as here the target's activities pose a continued and imminent threat of violence or death to U S persons the highest officers in the Intelligence Community have reviewed the factual basis for the lethal operation and a capture operation would be infeasible-and where the CIA and DoD continue to monitor whether changed circumstances would permit sucb an alIernative see also DoD vIay J8 Memorandum for OLe at 2-the 'Irealities of combat and the weight of the government's interest in using an authorized means ofletha force against this enemy arc such that the Constitution would not require the government to provide further process to the U S person before using such force Cf Hamdi 542 U S at 535 noting that Court accord s the greatest respect and consideration to the judgments of military 40 Case 13-422 Document 229 Page 97 06 23 2014 1254659 97 authorities in matters relating to the actual prosecution of war and the scope of that is vvide plurality opinion discretion Similarly assuming that the Fourth Amendment provides some protection to a U S person abroad who is part of al-Qaida and that the operations at issue here would result in a seizure within the meaning of that Amendment The Supreme Court has made clear that the constitutionality of a seizure is detennined by balanc ing the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion Tennessee v Garner 471 U S 1 8 I 985 internal quotation marks omitted accord Scott v Harris 550 U S 372 383 2007 Even in domestic law enforcement operations the Court has noted that w here the officer has probable cause to believe that the suspect poses a threat of serious physical harm either to the officer or to others it is not constitutionally unreasonable to prevent escape by using deadly force Garner 471 U S at II Thus if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime physical harm deadly force may be involving the infliction or threatened infliction of used if necessary to prevent escape and if where feasible some warning has been given ld at 11-12 The Fourth Amendment reasonableness test is situation-dependent Cf Scott 550 U S at 382 Garner did not establish a magical on off switch that triggers rigid preconditions whenever an officer's actions constitute 'deadly force''' What would constitute a reasonable use of lethal force for purposes of domestic law enforcement operations will be very different from what would be reasonable in a situation like such as that at issue here In the present drcumstances as we understand the facts the U S citizen in question has gone overseas and become part of the forces of an enemy with which the United States is engaged in an anned conflict that person is engaged iri continual planning and direction of attacks upon U S persons from one of the enemy's overseas bases of operations the U S government does not know precisely when such attacks will occur and a capture operation would be infeasible at least where high-level government officials have detennined that a capture operation overseas is infeasible and that the targeted person is part of a dangerous enemy force and is engaged in activities that pose a continued and imminent threat to U S persons or interests the use of lethal force would not violate the Fourth Amendment and thus that the intrusion on any Fourth Amendment interests would be outweighed by the importance of the governmental interests that justify the intrusion Garner 471 U S at 8 based on the facts that have been represented to us Please let us know if we can be of further assistance Acting Assistant AttQ Ul kl' General ATRUECUYY Catherine O'Hagan Wolfe Clerk I CERTIFIED U LoLL cz Lu Ar by I '