Targeting the Twenty-First Century Outlaw

Article excerpt

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. …