Targeting the Twenty-First Century Outlaw

By Chong, Jane Y. | The Yale Law Journal, December 2012 | Go to article overview

Targeting the Twenty-First Century Outlaw


Chong, Jane Y., The Yale Law Journal


NOTE CONTENTS

INTRODUCTION

  I. WHEREFORE OUTLAWRY?
     A. Due Process Requires Judicial Process
     B. Proposed Models of Judicial Review
     1. Civil Action
     2. Trial in Absentia
     3. A Targeted Killing Court
 II. A BRIEF HISTORY OF OUTLAWRY
     A. Theory and Procedure at English Common Law
     B. Judicial Outlawry in the American Colonies and the
          Individual States
     C. Extrajudicial Outlawry in the United States
III. THE CASE FOR OUTLAWRY-BASED TARGETED KILLING
     A. Outlawry Provides Properly Limited Judicial Process
          in the Form of Access to the Courts
     B. Outlawry Brings Targeted Killing in Line with Other Government
        Counterterrorism Operations Subject to Limited Judicial Review
        1. Judicial Review in the Context of Wiretapping
        2. Judicial Review in the Context of Detainment
     C. Outlawry Provides Coherent Principles for Legitimating and
          Limiting the Government's Use of Lethal Force
 IV. THE CONSTITUTIONALITY OF MODERN-DAY OUTLAWRY
     A. Cruel and Unusual Punishment
     B. Due Process
     C. Attainder
  V. UPDATING OUTLAWRY
     A. An Approach to Procedural Sufficiency
     B. Necessary Conditions for Lawful Modern Outlawry
        1. Congressional Authorization
        2. Formal Charges
        3. Notice
        4. Reversal of Outlawry upon Surrender
     C. Additional Considerations and Restrictions

CONCLUSION

INTRODUCTION

   [T]hat outlawry is to be put aside as obsolete, and for that reason
   never to be enforced in any case, however grave, is a proposition
   which at least would seem to require further consideration. Future
   generations may unhappily have to face more troubled times, and
   "treason" may again be found in the indices of our text-books. Is
   it well to throw away a weapon which has been proved of service and
   which may be the only weapon available?

-- Sir Henry Erie Richards (1902) (1)

On September 30, 2011, when drones fired Hellfire missiles at his convoy in Yemen, Anwar al-Awlaki did not become the first American citizen to be successfully targeted by his own government for execution without a trial. He became the first citizen known to be so killed abroad as part of the CIA's covert counterterrorism operations. (2)

As a general matter, government-sanctioned execution without trial is not a novel practice. Under the common law judgment of outlawry, a penalty "as old as the law itself," (3) a fugitive fleeing summons or indictment for a capital crime such as treason could be killed instead of captured on the theory that individuals unwilling to subject themselves to the judgment of the law could not avail themselves of its protections. A number of authorities have incorrectly asserted that outlawry, a legal weapon of critical importance for centuries in England, (4) "has never been known on this side of the Atlantic." (5) In fact, outlawry was practiced in the American colonies and remained in force as a criminal sanction in a number of states well after the ratification of the Constitution. North Carolina put its outlawry statute into occasional use until as late as 1975. (6)

In the context of modern terrorism, however, the term "outlawry" has been used loosely to refer to terrorist movements or state counterterrorism activities that operate outside a cognizable legal regime or violate established legal norms. (7) On the rare occasion when outlawry has been invoked as a legal sentence, it has been disparaged as the Western equivalent of the Islamic fatwa and as the barbaric analogue to current targeted killing practices. (8) In contrast, this Note examines the historical use and legitimacy of outlawry as a court-issued judgment. (9) My central argument is that the theory and past practice of outlawry provide helpful principles for narrowly crafting due process protections for prospective targets who are U.S. citizens. (10) Properly implemented, these protections would prevent their targeted killing from amounting to extrajudicial execution. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Targeting the Twenty-First Century Outlaw
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.