The Second Circuit has just compelled the release of a memo, prepared by then Acting Assistant Attorney General David J. Barron (who now sits on the First Circuit Court of Appeals) that purports to outline the legal rationale for President Obama’s summary execution of American citizens on foreign soil. 

Unfortunately, the transparent legal and logical absurdity of the memo is the only form of transparency we are likely to obtain from the Administration.

The memo argues that the central legal issue governing Obama’s extra-territorial drone killings (and in principal other such killings) centers around proper construction of 18 U.S.C. §1119(b). That piece of law 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 country shall be punished as provided under sections 1111, 1112, and 1113.”

The statutory issue in regard to Obama’s drone killings of extra-territorial American citizens flows from the fact that the §1119(b) language indicates that those who perform such killings (which includes presidents who authorize such killings, which is why the memo was drafted) are to be punished, if at all, in accordance with sections 1111, 1112, and 1113. 

Therefore, the operative question is whether either of 1111, or 1112, or 1113 applies to Obama.  If any of these sections applies to Obama, prosecution for his summary executions is lawfully required, regardless of whether one supports his summary killings or not.  This is because, once again, the express language of §1119(b) covers killings of U.S. nationals on foreign soil by persons who are nationals of the United States, and Obama is the latter sort of person, is he not?

Section 1111 deals with murder, defined as the  “…unlawful killing of a human being with malice aforethought.”  Section 1112 deals with manslaughter, statutorily defined as  “…the unlawful killing of a human being without malice.”  Section 1113 addresses attempts to commit either murder or manslaughter (click link in first paragraph to read the relevant statutory text).

Barron, and therefore Obama (or the other way around; it really doesn’t matter) rightly note that courts have held that §1119(b) incorporates, or includes, the definitions of murder, manslaughter, and attempt that are outlined in sections 1111, 1112, and 1113.  The problem resides in the legal inferences they draw from this correct observation. 

Given courts’ incorporation of the above-cited definitions in 1111, 1112, and 1113, Obama and Barron’s argument begins with the idea that the use of the word “kills” and the phrase “attempts to kill” in §1119(b) refers only to the unlawful killings of murder and manslaughter (and attempts of same). 

Therefore, the argument continues, §1119(b) commands only that unlawful killings, as defined by sections 1111, 1112, and 1113, are to be punished in accordance with §1119(b). 

Hence, Obama and Barron’s notion is that if drone killing (or any other form of summary execution, for that matter) is not unlawful (in the technical sense of that term), it is not covered  by §1119(b)--since, once again, §1119(b) only mandates that the punishment of unlawful killings is mandated by 1111, 1112, and 1113.

Obama’s problem is that summary executions of American citizens on foreign soil clearly meets the technical definition of the type of unlawful killing called murder in 1111 -- as used every day by prosecutors across the country in pleadings and the case-in-chief (where ‘intentional killing”, which is what Obama does to, for example, his drone targets) satisfies 1111’s common law derived “malice aforethought” language). 

That’s why Obama and Barron speak in the memo of the “public authority” justification of drone killings (whether 1111 or 1112 or 1113 attempts), where “justification” is a legal term of art, and justifications render what would otherwise be considered unlawful killings lawful. 

Loosely, but nonetheless accurately in the present context, justifications of intentional homicide in criminal law consist in defenses like self-defense.  Killings done in self-defense are homicides, but they are considered lawful homicides, or lawful killings.

So Obama and Barron’s defense of summary execution of American citizens amounts to putting “public authority” on legal par with self-defense. 

In evaluating the legality of Obama’s drone kills of American citizens on foreign soil, it is therefore imperative to interrogate exactly what the “public authority” justification is.

When we look at what Obama’s ostensible legal justification in terms of “public authority” consists in, you will see that it is absurd, and that it also applies, if it applies at all, to summary executions of American citizens on American soil.

Here is the “public authority” justification in the memo:

The public authority justification does not excuse all conduct of public officials from all criminal prohibitions.  The legislature may design some criminal prohibitions to place bounds on the kind of governmental conduct that can be authorized by the Executive.  Or, the legislature may enact a criminal prohibition to in order to delimit the scope of the conduct that the legislature has otherwise authorized the Executive to undertake pursuant to another statute.  But the recognition that a federal criminal statute may incorporate the public authority justification reflects the fact that it would not make sense to attribute 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 (Memo, linked in first paragraph, p.16).

When we translate the legal gobbledegook, here is what we get: The “public authority” defense cannot be used universally by Obama to justify avoidance of commission of what would otherwise be federal criminal offenses.   Instead, Congress can restrict the scope of Executive acts by criminally bounding them, or it can criminally prohibit particular Executive acts in the first place (of course, in a manner consistent with Article II).

These things are uncontroversial. 

The devil is in the concluding sentence and its use of the word “may.”  Obama’s idea is that his summary executions are protected by the public authority justification because, even though private citizens who did the same thing would be criminally liable, Congress may have intended to exclude presidents from the coverage of federal criminal statutes as long as the presidents can be said to have acted “in the legitimate exercise of their otherwise lawful authorities.”

Obama’s argument here obviously begs the question for two reasons.  First, because “may” is not the same as “did”, and second, and even more importantly, because the entire question at issue is whether Obama’s summary executions of Americans on foreign soil are in fact done “in the legitimate exercise” of his otherwise “lawful author[ity].”

Therefore, Obama’s statutory “argument” in support of his summary executions amounts to: it might be legal because I do it in the course of exercising my lawful authority”, which is the same as saying “it might be legal because it’s legal.” 

What more quintessential expression of Obamaism could there possibly be? 

People can clearly see what the problem with that is, and they can also see plainly that Obama’s “justification” would “authorize” him to summarily execute American citizens on American soil, since nothing in Obama’s “public authority” defense to murder says it wouldn’t. 

Dr. Jason Kissner is associate professor of criminology at California State University, Fresno.  You can reach him at crimprof2010@hotmail.com.