The Federal Protective Power and Targeted Killing of U.S. Citizens
Gregory S. McNeal
Pepperdine University School of Law; Pepperdine University - School of Public Policy
June 10, 2011
CATO Unbound, June 2011
In this responsive essay I argue that the Constitution envisions circumstances when the president may order U.S. citizens to be killed. It may be akin to the facts in al-Awlaki, where one is actively making war against the United States, or it may be in lesser circumstances that threaten the instruments of federal power.
A settled example where a killing was authorized to protect the federal government was in Cunningham v. Neagle, 135 U.S. 1 (1890), there the Court addressed the killing of a U.S. citizen by Neagle, a federal marshal who was dispatched to protect Justice Field from an anticipated assault. While on a railroad dining car, the assault occurred (as expected) and Neagle reacted by killing the assailant with two pistol shots; Neagle was subsequently arrested on homicide charges and held for trial. The question the Court addressed was whether Neagle, acting upon orders but not a statute, had authority to kill a man in defense of Justice Field. The Court found that Neagle was acting pursuant to lawful authority, because the President was entitled to authorize protection for a sitting Supreme Court Justice.
Neagle was reinforced five years later in In re Debs, 158 U.S. 564 (1895), a case involving the attorney general’s attempts to prohibit interference with interstate commerce. In Debs the Court noted that the president was acting on inherent powers embedded in the Constitution and existing statutes, both of which allowed him to act as the primary agent of the national government to “prevent any unlawful and forcible interference” with interstate commerce. The Court went on to state that the president could use “the entire strength of the nation” including “the army of the Nation, and all its militia” to protect interstate commerce. Moreover, the Court cited numerous English and state authorities for the proposition that “when the choice is between redress or prevention of injury by force and by peaceful process, the law is well pleased if the [Executive] will consent to waive his right to the use of force and await [the law’s] action,” (emphasis mine) but such waiver is not constitutionally required. The import of Neagle and Debs is perhaps best summarized by the dissent in the Steel Seizure case, “[t]he Executive is authorized to exert the power of the United States when he finds this necessary for the protection of the agencies, the instrumentalities, or the property of the Government.”
The Founders felt that a key role of government was to ensure that citizens were equally protected from external harms. Security of one’s person and property was a principle emanating from the doctrines of Hobbes and Locke, both of whom influenced the judgment of the Founders. Furthermore, as the Court noted in Neagle, the protective power is an “obligation, inferable from the Constitution, of the government to protect the rights of an American citizen against foreign aggression.” As we know from the al-Awlaki case, that foreign aggression may come in the form of an American citizen directing attacks against the entirety of the United States. When such attacks occur, it falls on the president to embody the “great object and duty of Government [which] is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home; and any Government failing in the accomplishment of the object, or the performance of the duty, is not worth preserving.” Durand v. Hollins, 8 Fed. Cas. 111 (No. 4186)(C.C.S.D.N.Y. 1860).
Keywords: targeted killing, constitution, al-Awlaki,al-Aulaqi, assasination, citizens, federal protective power, unlawful killing, Neagle, Debs, Durand v. Hollins, war, conflict, executive powerAccepted Paper Series
Date posted: December 8, 2011
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