Questions from the Awlaki Litigation

In August 2010, the father of Anwar al-Awlaki filed a federal lawsuit alleging that his son’s inclusion on CIA and DoD “kill lists” violated the Constitution and international law. The court dismissed the suit for lack of standing and for raising a political question. Several months later, the CIA killed Awlaki and two other U.S. citizens in aerial drone strikes in Yemen. Now the ACLU and Center for Constitutional Rights have responded by filing a separate lawsuit challenging the government’s use of the drones. The defendants are Leon Panetta, David Petraeus, and two other senior military officials, and the complaint alleges that the killings violated the Fourth and Fifth Amendments and the Bill of Attainder Clause. Given the relatedness of the lawsuits and the dismissal of the first on the basis of the political question doctrine, I think there’s very little chance that the second succeeds. But it still raises interesting issues.

One concerns precedent—has the United States ever carried out targeted killings against its own citizens? The answer is yes; the U.S. military has targeted and killed individuals without judicial process notwithstanding their U.S. citizenship. The most significant example comes from the Civil War, during which the Union killed tens of thousands of Confederate soldiers. One might argue that those soldiers were no longer U.S. citizens because they were fighting for the Confederacy, but that position is inconsistent with the view—supported by the Supreme Court’s decision in Texas v. White (1869)—that secession was unconstitutional. As long as secession was invalid, then the Confederacy was void and did not dissolve the U.S. citizenship of its soldiers. More isolated examples appear to have occurred during World War II, when the United States fought against Nazi forces that included some U.S. citizens of German descent. And of course federal law enforcement officers have occasionally killed criminal suspects who presented significant and immediate threats to the public. If the United States has acted permissibly in these cases, then the extrajudicial killing of a U.S. citizen is not unconstitutional per se.

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Advice to New Law Students

As Ben Stone, one of my favorite TV lawyers, once said, “All clichés are true.” One is particularly true in law school — don’t miss the forest for the trees. Our classes and the studying that accompanies them are certainly the most important thing we have going. This is a school, and we are here to learn to be lawyers. However, classes are not the only way we learn that. If you let your classes become your trees, you will miss the forest that is Marquette Law School, which, if you let it (and you should), will teach you more than just the law. I was prepared to torture the law-school-as-forest comparison into a severely strained metaphor involving trees, plants, trails, streams, and woodland animals, but I’ll spare you. Instead, I’d like to offer some advice on making the most of your law school experience.

Get wired in. If you have a smartphone, put your MU email on it. If not, get in the habit of checking it regularly. Law school is like a job, and you don’t want to miss a memo from the boss. I can’t count how many times I answered, “Where did you hear that?” with, “It was in our email.” Don’t find out your class was cancelled by being one of three people sitting alone in the classroom for fifteen minutes. Don’t find out about free food by watching the last of it parade by in the hands of your email-checking classmates. Definitely don’t find out the parking garage is closed for the day by rolling up to the FULL sign, fifteen minutes before class starts. That last one really hurts.

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Seventh Circuit Weighs in on Aggravated Identity Theft Sentencing

The aggravated identity theft statute (18 U.S.C. §1028A) specifies a sentence of two years — no more, no less — for each violation.  So, when a defendant is convicted of multiple violations of the statute, should the two-year sentences be imposed concurrently or consecutively?  Today, in United States v. Dooley (No. 11-2256), the Seventh Circuit recognized that the sentencing judge has discretion in making the decision, but held that the judge must consider the factors set forth in U.S.S.G. §5G1.2 Application Note 2(B).

Dooley was convicted in three separate counts of violating §1028A, leaving the judge to choose among three sentencing options: 24 months, 48 months, or 72 months.  (I leave out the effect of Dooley’s conviction of various other offenses, which did not play a significant role in the Seventh Circuit’s analysis.)  In selecting the 72-month option, the judge focused on the need to avoid disparities relative to another defendant.  However, the judge did not mention the Note 2(B) factors.  This, the Seventh Circuit held, was plain error.  

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