Proscription and Reasons of State

View 694 Monday, September 26, 2011

In the old Roman Republic before the wars of Marius and Sulla it was considered sacrilege to put to death a Roman Citizen without trial. The Civil Wars changed that, and when one faction won it would publish lists of enemies who could be killed without trial or mercy if found within Roman jurisdiction. Most lists of proscription also carried rewards to those who found and executed the proscribed enemy of the people. Proscriptions also carried confiscation of property, and were used by Sulla to replenish the treasury.

After Sulla the practice was used by other factions. Julius Caesar refused to employ such a device on his election as Consul and elevation to dictatorship, but when Caesar was assassinated

Plutarch, Life of Cicero, 46.3-6:

3 The proscription of Cicero, however, caused most strife in their debates, Antony consenting to no terms unless Cicero should be the first man to be put to death, Lepidus siding with Antony, and [Octavius] Caesar holding out against them both. 4 They held secret meetings by themselves near the city of Bononia for three days, coming together in a place at some distance from the camps and surrounded by a river. 5 It is said that for the first two days Caesar kept up his struggle to save Cicero, but yielded on the third and gave him up. The terms of their mutual concessions were as follows. Caesar was to abandon Cicero, Lepidus his brother Paulus, and Antony Lucius Caesar, who was his uncle on the mother’s side.

Cicero was murdered on December 7, 43 BC. His last words were “There is nothing proper about what you are doing, soldier, but do try to kill me properly.” His head was struck off and exhibited in the Forum. Marc Anthony’s wife pierced Cicero’s tongue with a hatpin as retaliation for the effective speeches Cicero had made against Anthony during the period when Cicero sided with Octavius against Anthony. The proscription lists were negotiated when Octavius, Anthony, and Lepidus formed an alliance. Cicero’s crime was his eloquent speeches.

President Barack Obama says the killing of American-born cleric Anwar al-Awlaki in Yemen "is a major blow to al-Qaida’s most active operational affiliate."

Obama also says it "marks another significant milestone in the broader effort to defeat al’Qaida."

Al-Awlaki, a prominent figure in al-Qaida in the Arabian Peninsula said to have direct involvement in plots against the U.S., was killed early Friday in a strike on his convoy carried out by a joint operation of the CIA and the U.S. Joint Special Operations Command, according to counterterrorism officials.

Officials also said that a second American, Samir Khan, who edited an online magazine that spread the word on ways to carry out attacks inside the United States, also was killed in the strike.

Obama spoke Friday at a retirement ceremony at Fort Myer, Va. for Adm. Mike Mullen, chairman of the Joint Chiefs of Staff.

http://www.forbes.com/feeds/ap/2011/09/30/general-us-cleric-killed_8709986.html

It is not clear how one gets on the American Proscription List, nor do I know if there are two separate lists, one for citizens and one for others. The official policy seems to be that proscription only applies to citizens not in the United States, but that is an inference: the President so far as I know has not cited any act under which Americans resident in Nevada are authorized to carry out proscriptions in Oman and other foreign countries. It is widely understood that President Bush sent US armed forces teams to “Kill Bin Laden” shortly after 9-11, but there were no American citizens on the target list they were given. Those were acts of war, and carried out under the war powers.

Constitutionally the Congress is explicitly prohibited from Acts of Attainder, which is a form of Proscription adopted as an actual Act of Parliament still in theory allowable under English law, but not employed for a century or so. Under an attainder, a law is passed pronouncing a named individual or members of a particular organization or group, or possibly a named family, guilty of a capital crime and authorizing their execution without trial. No such act has been passed for more than two centuries.

However, according to popular legend and the novels of Ian Fleming the British Security Services have proscription lists but the executions are performed only by certain authorized operatives (the double-naught agents). It is not clear who is authorized to place people on the list. In American fiction, particularly the novels of Donald Hamilton, there is a US civil service agency which maintains lists of people to be executed if found; one may infer from Hamilton’s novels that “Mac”, a senior executive holding no constitutional office, has rules which can be applied, and in some cases assassination operatives to were sent to deal with American citizens both domestic and abroad. The US agents of execution know only that they have been ordered to perform the actions; they never know by whom the action was requested, although in some stories Mac drops hints about DEA and CIA.

The obvious question for discussion is whether this activity – summary execution of citizens without trial – is permissible or desirable under Constitutional Government as part of the discretionary war powers of the President, and if so, do they apply within the United States as well as in foreign nations? It is not a simple question. What acts must a citizen perform to earn a place on the proscription list? One of those killed was “Samir Khan, who edited an online magazine that spread the word on ways to carry out attacks inside the United States”, but is that the totality of his acts that made him an enemy of the people? (I say enemy of the people, but I don’t know what designation is given to people who may be killed on sight without trial.) What agents of the Republic are authorized to carry out the act of proscription?

Could a private citizen who somehow got wind of the fact that a given person was on the list plead that as a defense? I killed him because he is proscribed. You cannot prosecute me. (As we certainly cannot prosecute the members of Seal Team Six for the execution of Osama, although I suspect the government of Pakistan would do just that if they could get custody of the team. As for example, suppose that one of the operators of an armed drone, told to kill a certain American citizen on sight if found in Oman or Pakistan, sees that person coming out of a casino in Las Vegas and takes the opportunity to gun him down. Would that be a valid plea in Nevada? Or suppose he follows this proscribed American to federal property and shoots him the instant he sets foot on federal soil? Improbable, or course. Probably impossible, although it might make for a good novel.

Yes, I thoroughly understand that “Reasons of State” apply here. I understand that many believe the two were indeed enemies of the United States, traitors, and deserving of their faith, and that many lives may have been saved by their deaths. I understand that the Imam was probably the person who persuaded the army Major to fire on his comrades. Note that the actual shooter in that act of war against the US is still being held for trial, while the person said to have recruited him for that act was killed by proscription.

Reasons of State can be very broad, and can hide a wide range of actions. Are there any limits to such? How are the limits to be applied? At what level does this ultimate authority rest? Is it discretionary with the President? Must he take counsel (and from whom?), or is it his decision alone? We now have the President specifically taking credit for bagging Bin Laden as well as these two US citizens, all of them self-admitted members of an organization at war with the United States; can we infer a policy (and limits) from that? It may well be that we need a proscriptive power, but surely it needs definition and the ultimate authority should be specified? Would it be in order to place the chairman of Wikileaks on the proscription list to be blown up if seen on screen? Could we send a drone into England where he now resides? Who should make that decision?

During the Cold War the United States was threatened by a very large army that wielded thousands of nuclear weapons that could be delivered to the United States in hours to days. The United States employed a number of clandestine services, and some of them are said to have carried out fairly drastic operations, as when Eisenhower authorized the assassination of certain Russian military officers in retaliation for the US officers lost in the Soviet downing of the RB-47. That was long ago. One result was a sort of unofficial truce, which gave a measure of protection to US CIA agents and Russian KGB operatives both at home and abroad, and made political assassination a fairly rare event. Rare, but not zero.

This discussion is not likely to end. Nor do I claim to have answers. Do not take this as a diatribe against President Obama. I mean to raise the question of just where are the limits of authority in a republic whose government has specific and limited powers. And if the President can infer certain powers, can the Governor of Arizona hire an assassination of, say, the head of a major drug cartel? For that matter, can the US President? Should they?

For a very interesting story of the twilight days of the Cold War:

http://turcopolier.typepad.com/sic_semper_tyrannis/2011/09/unter-vier-augen-by-basilisk.html 

I remember the tire store and the liquor store nearby, but from well before this story, back when there were no bars in Virginia, and the Marriott Twin Bridge boasted a private club on the top floor.