Thursday, March 10, 2011

Alford on Al-Aulaqi in Historical Perspective

Ryan Patrick Alford, Ave Maria School of Law, has posted The Rule of Law at the Crossroads: Consequences of Targeted Killing of Citizens, which is forthcoming in the Utah Law Review. Here is the abstract:
In December 2010 (in Al-Aulaqi v. Obama) a District Court held that the President's decision to authorize the targeted killing of American citizen could not be reviewed in any court. The article discusses whether this decision is compatible with the vision of the rule of law embodied in the Constitution and the Bill of Rights, which is illuminated with an explanation of the historical analysis of the key influences on the Framers. It concludes that the Al-Aulaqi decision is a more significant threat to our constitutional order than the indefinite detention enjoined by Hamdi v. Rumsfeld, and accordingly this warrants a vigorous response from the legal profession.
The abstract aptly conveys Professor Alford’s alarm over Al-Aulaqi but perhaps not the extent of his historical research, which sometimes ventures beyond the usual precincts of originalism. I was particularly taken by his point of departure:
[W]e should begin by considering the influence of a similar case, which, despite its great age is perhaps the most pertinent point of comparison: the case of David ap Gruffydd (1238-1283). Gruffydd was a Welsh prince-the last ruler of an independent Wales-who nevertheless owed personal fealty to the realm of England, as he had paid homage to King Henry III in 1253. In 1282 he waged war against Henry's son Edward I, and was the subject of a royal order from King Edward that he be killed. We must return to the Middle Ages for a relevant comparator because the thirteenth century was the last time when the executive branch of any country governed by the common law had asserted that it was legal to kill a citizen on the basis of an executive order, without the involvement of either the judicial or the legislative branches -that is, until the case of Anwar Al-Awlaki.