[1075] Wayne Anthony Ross and Donald J. Miller, Miller & Ross, Anchorage, and Patrick Monoghan, Idaho, for appellants.

Elaine Vondrasek, Asst. Municipal Prosecutor, Allen M. Bailey, Municipal Prosecutor, and Theodore D. Berns, Municipal Atty., Anchorage, for appellee.

Before RABINOWITZ, C.J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.^[*]

OPINION

RABINOWITZ, Chief Justice.

The facts underlying the four criminal convictions appealed from in this case are not in dispute.

On January 6, 1978, members of various anti-abortion groups staged a nationwide protest. In conjunction with that movement, members of Alaska Right to Life staged a demonstration outside of the building housing the Alaska Hospital and the Alaska Clinic in Anchorage. Having decided that they had "tried everything else" and that it was necessary "to try ... peacefully to stop the taking of human life," appellants Head, Fardig, Sigfried and Cleveland entered the Alaska Clinic to conduct a more emphatic protest than the one in progress outside the building. Head and Siegfried proceeded to attach themselves to the door of the Clinic's operating room with handcuffs and chains, while Cleveland and Fardig handcuffed themselves to the operating table.

Shortly after appellants had established themselves in the Clinic, Mingo, the building security supervisor, asked them to leave and then, in response to their refusal, obtained a set of boltcutters. Mingo first cut the handcuffs connecting Head and Sigfried to the door and escorted them from the building. He then returned and, overcoming relatively minor resistance, freed Fardig and Cleveland. Fardig was escorted outside and Cleveland, who refused to walk, was carried out on a sheet. All four were advised not to return unless they needed medical assistance.

Moments later, appellants re-entered the building and again approached the operating room; Mingo stopped them and again requested them to leave. Fardig, Cleveland and Siegfried then sat down on the floor, while Head removed himself to the building's main entrance and sat down there. At that point, city police were summoned. All four appellants were once again requested to leave the premises, and on refusing to do so, were arrested and then removed by police officers.

Appellants were each charged with violating Anchorage's criminal trespass ordinance^[1] [1076] and all were convicted under that ordinance in the district court. The convictions were affirmed on appeal to the superior court, and are now before us on appeal from the superior court's affirmance.

Appellants' primary defense at trial was to have depended on the claim that their actions were necessary to avert imminent peril to human life. They allege error in the district court's refusal to instruct the jury on the defense of necessity. Although the trial court excluded that defense, it did allow appellants to defend on the ground that they acted under an honest and reasonable, but mistaken, belief that the necessity defense would protect them from criminal prosecution for their actions. They allege error on the ground that the instructions given on this latter defense were so "confusing and contradictory" as to require reversal. Appellants also seek reversal on the ground that the criminal complaints relied on by the state were defective and on the ground that the cumulative impact of the alleged errors deprived them of their due process rights under the United States Constitution and the Alaska Constitution.

I. DEFECTS IN THE COMPLAINTS.

Appellants argue that the criminal complaints in this case were defective in two respects. First, Fardig, Cleveland and Sigfried claim that they were arrested in the Alaska Clinic rather than the Alaska Hospital as alleged in each of the complaints. Second, pointing to the literal language of the Anchorage trespass ordinance,^[2] appellants contend that they were not in violation of that ordinance because the person who requested them to leave the building was not an "owner or occupant thereof."

Under Alaska Dist.Ct.R.Crim.P. 1(a),^[3] a complaint constitutes the accusatory pleading by which an offense is charged in a district court proceeding; it serves the same function as does an indictment or information in the superior court. Under Alaska R.Crim.P. 7(c),^[4] a mere formal defect does not render an indictment insufficient unless it is of a magnitude sufficient to prejudice substantial rights of the defendant. Alaska Dist.Ct.R.Crim.P. 1 directs application of the general Criminal Rule provisions to district court proceedings "[w]herever practicable." In the present case, three of the four complaints were [1077] formally defective in that they alleged that the trespasses occurred in the Alaska Hospital rather than in the Alaska Clinic where they actually did occur. Appellant Head admits that he was arrested for trespassing in the Alaska Hospital as alleged. Both facilities, however, were in fact contained within a single building. Since no prejudice to any appellant is claimed, and since we can perceive none that could be claimed, this asserted defect did not warrant dismissal of the subject complaints. See Price v. State, 437 P.2d 330, 332 (Alaska 1968).

Appellants' second attack on the sufficiency of the complaints is that Anchorage Municipal Code 8.30.010(B)(3)^[5] requires that a trespasser be requested to depart from the premises by an "owner or occupant" before he can be found to have violated that ordinance. Mingo, the security supervisor for the whole Hospital-Clinic building, was, according to appellants, neither an owner nor an occupant of the building and therefore was not qualified to request them to leave.

Beyond his statements that he was "the building security supervisor" and that he was "employed by the Teamster[s] Union, Local 959," there is nothing in the record to indicate the precise nature of Mingo's employment arrangement with the Hospital or Clinic. Appellants' attack, however, is not based on the extent of Mingo's authority to act on behalf of the Clinic; it depends, rather, on a very literal reading of the trespass statute.^[6] Appellants' claim assumes without argument that under the ordinance, an "owner or occupant" can never make the request that trespassers depart by acting through an agent. In the absence of argument or authority to the contrary, we see no reason for suspending the general common law of agency in construing section 8.30.010(B)(3) of the Anchorage Municipal Code. Other courts have reasoned similarly. See Johnson v. State, 277 Ala. 655, 173 So.2d 824, 827-28 (1965); People v. Thompson, 56 Ill. App.3d 557, 14 Ill.Dec. 312, 372 N.E.2d 117, 121-22 (1978). The record indicates that Mingo was a duly authorized agent of an "owner or occupant" of the Clinic acting within the scope of his employment, and his request that appellants leave the premises therefore satisfied the requirements of Anchorage Municipal Code 8.30.010(B)(3). Thus we also reject this facet of appellants' attack on the sufficiency of the complaints.

II. THE DEFENSE OF NECESSITY.

Appellants' primary claim is that in attempting to prevent the performance of abortions at the Alaska Clinic, they acted in the reasonable belief that their actions were necessary to protect human life from imminent peril. In spite of both argument and testimony offered at trial that is in apparent conflict with their present position, appellants now insist that:

It is vital to understand that these appellants, by their actions on January 6, 1978, were not protesting abortion in general, or engaging in symbolic acts which they hoped would lead the public to sympathize with the profile cause. Rather, they were directly intervening to protect the particular human lives threatened with imminent destruction at Alaska Hospital and Clinic in the abortion chambers they entered, on that very day.

In support of their position appellants cite newspaper articles^[7] describing two unreported Fairfax County, Virginia, district court cases^[8] in which trespassers in an abortion clinic were acquitted on this theory.

[1078] The defense of necessity requires a showing of three essential elements:

1) The act charged must have been done to prevent a significant evil; 2) there must have been no adequate alternative; 3) the harm caused must not have been disproportionate to the harm avoided.^[9]

It is available if the accused reasonably believed at the time of acting that the first and second elements were present, even if that belief was mistaken; but the accused's belief will not suffice for the third element. An objective determination must be made as to whether the defendant's value judgment was correct, given the facts as he reasonably perceived them. Nelson v. State, 597 P.2d 977, 979, 980 n. 6 (Alaska 1979).

Relying heavily on State v. Marley, 54 Haw. 450, 509 P.2d 1095 (1973), the district court refused to allow the jury to consider the defense of necessity. Appellants argue that their presence "prevented the killing of children which was imminent" because "the potential victims and their mothers could not be brought to the abortion chambers through hallways and doors which the appellants were blocking."

There are several flaws in appellants' argument. First, the emergency which produces the "necessity" behind the charged act must generally be a result of the "physical forces of nature." W. LaFave & A. Scott, Criminal Law § 50, at 381. Generally, when the threatened harm emanates from a human source, an actor who violates the law in response to it can defend only on the grounds of duress, defense of others, or crime prevention. Id.^[10] The defense [1079] of duress is clearly inappropriate here since appellants do not claim that their illegal acts were compelled by "the unlawful threats of another." E. Arnolds & N. Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J.Crim.L. & Criminology 289, 290 (1974). The other two related defenses — defense of others and crime prevention — require that the harm avoided by the charged act be unlawful. R. Perkins, Criminal Law 1019 (2d ed. 1969).^[11] Abortion, or the "killing of unborn children" as appellants characterize it, is not unlawful in this state, as appellants concede.^[12] Given these principles, appellants' argument must fail since the alleged harm sought to be avoided did not arise from a natural source and was not unlawful.

Second, we find the reasoning of the Hawaii Supreme Court in State v. Marley, 509 P.2d 1095 (Hawaii 1973), persuasive. In Marley, the defendants were convicted of criminal trespass after entering the offices of Honeywell Corporation in an attempt to stop the "war crimes" being committed by Honeywell. As in the present case, the Marley defendants' behavior was nonviolent but was disruptive of normal business operations. Id. at 1099. Their necessity defense was rejected for three reasons, two of which we find applicable here: first, "[w]here there is a third alternative available to defendants that does not involve violation of the law, defendants are not justified in violating the law. Other forms of non-criminal protest were and are available to defendants to enable them to dramatize, and hence hopefully terminate, conduct which they may view [as] harmful." Marley, 509 P.2d at 1109 (citations omitted). Second, defendants are "unentitled to the defense of `necessity' because their actions were not reasonably designed to actually prevent the threatened greater harm... . Under any possible set of hypotheses, defendants could foresee that their actions would fail to halt" the practices to which they objected. Id.

Appellants seek to distinguish Marley on the ground that the alleged harm in that case — the manufacture of weapons to be used in the Vietnam war — was specially and temporally remote from the site of the trespass whereas the abortions they prevented were scheduled in the very rooms appellants occupied and blocked, within minutes of the time of their entry. However, the lack of "imminence" in Marley was only one of the three grounds relied upon by the court, and the differences between this case and Marley do not render [1080] the other two grounds less applicable. In other respects, the facts of the two cases are closely analogous. In both cases, it was obvious to the trespassers that their actions could not halt the alleged greater harm to which society had given its imprimatur, but rather that, at best, the harm could be only postponed for a brief interval, following which society's normal operations would reassert themselves. This was simply not the kind of emergency situation contemplated by the defense of necessity.

Further, in spite of appellants' protestations to the contrary, their acts, like the acts of the Marley defendants, are much more appropriately characterized as protesting with the intent to "dramatize, and hence hopefully terminate, conduct which they may view [as] harmful," id. at 1109, then, as appellants describe their own behavior, "directly intervening to avert an imminent threat to human life." Appellants' protest was, in fact, part of a nationwide protest that resulted in several similar arrests in other cities. Appellants appear to concede that if their actions are best described as a protest, the necessity defense would be unavailable. We think it manifest that it would be inappropriate to characterize these trespasses as anything other than a protest, and that appellants' argument of necessity must therefore be rejected.

Third, the defense of necessity requires a showing that the harm sought to be avoided was greater than the harm reasonably foreseeable as resulting from a defendant's illegal actions. Nelson v. State, 597 P.2d 977, 980 (Alaska 1979). That is, the harm reasonably foreseeably resulting from a failure to act must be balanced against that foreseeably resulting from the illegal action. We believe that harm to both the Clinic and its patients was reasonably foreseeable to the trespassers. The Clinic's schedule was disrupted and its operating room required resterilization; and it was certainly foreseeable that the patients scheduled to undergo abortions at the time the demonstration occurred would suffer emotional distress as a result of appellants' invasion of their privacy during a particularly sensitive period.

Against this must be weighed the foreseeable results of appellants' failure to intervene — the routine performance of abortions, or, as appellants regard it, the killing of human life. Appellants acknowledge that the Supreme Court of the United States has expressly rejected the identification of fetuses as "persons" in this context. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 728-730, 156-59, 35 L.Ed.2d 147, 179-80, reh. denied, 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694 (1973). Appellants' view is that Roe v. Wade, although foreclosing the possibility of action by state officials to protect fetuses until viability, does not prohibit similar actions by individuals. The question, then, is a familiar one: whether appellants can, by appeal to a "higher law," justify their illegal attack on a form of government-approved behavior. Citing this court to two unreported cases^[13] and the Nuremberg Trials,^[14] appellants seek a ruling that, as a general principle, abortion is a more significant evil than trespass.

However, even assuming that appellants are correct in arguing that Roe v. Wade does not control as to the weight to be accorded "potential life" in this context,^[15] the United States Supreme Court is not the only authority to which we must defer in [1081] this area. The Alaska legislature is better suited to strike the balance than is this court. Indeed, the law of necessity itself requires us to consult the legislature's enactments:

The defense of necessity is available only in situations wherein the legislature has to itself, in its criminal statute, made a determination of values. If it has done so, its decision governs.

LaFave and Scott, supra, § 50 at 382.^[16]

Alaska's legislature has, we think, already spoken as to the balancing before us, and concluded that the interests in potential life appellants sought to vindicate are outweighed by the very privacy interests appellants sought to invade.^[17] Thus, we cannot agree that any abortions that were delayed by appellants' demonstration can be characterized as sufficiently harmful to outweigh the harm that was the foreseeable result of appellants' behavior.

We hold that the trial court's rejection of appellants' necessity defense was proper.^[18] We are in agreement with the District of Columbia Court of Appeals' response to the [1082] necessity defense raised by participants in a similar anti-abortion demonstration:

Unlike medical necessity or other emergency situations, the necessity cited by appellants cannot shield them from criminal liability for their acts.

The rights to free speech, to assembly, and to petition the government for grievances are a cornerstone of the American system. So, too, is the right to be free from criminal interference. These appellants trespassed on the rights of others and did so without excuse.

Gaetano v. United States, 406 A.2d 1291, 1295 (D.C.App. 1979).

III. JURY INSTRUCTIONS.

Appellants assert that the following three instructions were so "confusing and contradictory" as to require reversal:

[NO. 7]

In the crime charged in the complaint, there must exist a union or joint operation of act or conduct and criminal intent. To constitute criminal intent it is not necessary that there should exist an intent to violate the law.

[NO. 8]

In this case, if you find from the evidence that a defendant honestly believed that he or she had a right to remain on the premises occupied by Alaska Hospital and Clinic even after being instructed to leave, and that such belief was based upon reasonable grounds, and that the conduct of each defendant would have been lawful and proper had the facts been such as defendant honestly believed them to be, then you must find such defendant not guilty.

[NO. 9]

To constitute the defense of necessity, the defendants would have had to show that they were attempting to prevent some harm that was within their presence. Since the facts of this case have shown that the defendants were not attempting to prevent harm within their presence, the defense of necessity is not applicable. Therefore, you may not consider the defense of necessity in your deliberations.

On appeal, the superior court agreed that the instructions were inconsistent, but held that the inconsistency did not require reversal. In its written opinion, the superior court stated:

The real problem is that instruction no. 8 states a proposition of law that is inapplicable to these cases. In essence, instruction no. 8 is an instruction on mistake of law as a defense. Mistake of law is not a defense applicable to the municipal trespass ordinance (AO 8.30.010) under which appellants were charged. Consequently, the judge gave an unwarranted instruction. The fact that instructions nos. 7 and 9 were inconsistent with no. 8 simply served to cure the error of giving no. 8. The error was harmless, as it is clear that the jury rejected the erroneous mistake of law instruction, so that `the jury was not substantially swayed or affected by the error.' Adkins v. Lester, 530 P.2d 11, reh. den., 532 P.2d 1027 (Alaska 1974).

Instruction number eight was based upon the trial court's view that, although appellants could not defend on the basis of necessity, they could seek to excuse their conduct [1083] on the ground that they honestly and reasonably believed that that defense justified their presence at the Clinic. Three of the four appellants testified that they were aware of two judicial decisions in which, on facts virtually identical to those in the present case, defendants were acquitted on the ground of necessity.^[19] All four testified that they believed they had a legal right to enter the Clinic in an attempt to prevent abortions from being performed. The instruction, then, would have required acquittal had the jury found these beliefs to be both honest and reasonable.

At trial, the state argued that the mistake of law defense, as presented by appellants, is only applicable if the mistaken reliance is upon the statutory, administrative, or case law of either the United States or the state in which the illegal actions were committed. We have found no authority, and appellants cite none, for the proposition that an individual is justified in relying on the case law of other jurisdictions in deciding on a course of conduct.

Since the cases relied upon by appellants were both decided by a trial court in Fairfax County, Virginia, the defense of "reliance of a judicial decision" is inapplicable to the present case. The district court therefore committed error in giving instruction number eight.

We must agree with appellants' claim that the three instructions taken together were confusing. Instruction seven explains, correctly, that the criminal intent necessary to convict does not include intent to violate the law. Instruction eight, however, indicates that if the appellants honestly and reasonably believed their actions did not violate the law, they were not guilty. Instruction nine states the court's correct finding that the necessity defense was not available. Instructions eight and nine, taken together, express the court's erroneous view that an honest and reasonable belief in the availability of that defense could excuse the appellants' violations. Instruction seven, on the other hand, indicates that appellants need not have intended that their conduct be illegal to be convicted even if he thinks his conduct is legal and that he cannot be convicted. The instructions seem to say both that a defendant can be convicted if he reasonably and honestly believes his conduct to be legal.

As the superior court pointed out, instruction eight described a defense that was unavailable to appellants in this case. That instruction could have only operated in appellants' favor, however, and we agree with the superior court's conclusion that "it is clear that the jury rejected the erroneous ... instruction." We also agree with the superior court's further conclusion that "the jury was not substantially swayed or affected by the error"; as such, it did not affect appellants' substantial rights and was therefore harmless under Love v. State, 457 P.2d 622, 631 (Alaska 1969).

Having discerned only the single harmless error discussed above, we perceive no merit in appellants' final claim — that the cumulative effect of the errors alleged to have been committed by the trial court deprived them of the "level of procedural fairness" required by the due process clauses of the United States and Alaska Constitutions. The convictions of appellants are AFFIRMED.

DIMOND, Senior Justice, concurs.

COMPTON, J., not participating.

DIMOND, Senior Justice, concurring.

I agree with the majority that the defendants' convictions must be affirmed. It seems possible to me that under certain circumstances the defense of necessity should justify what would otherwise be illegal conduct engaged in to prevent the performance of an abortion. The defense is clearly inapplicable in this case, however, because as the majority notes the defendants' conduct can only be characterized as a general protest against abortions.

The defense of necessity is designed to justify otherwise illegal conduct taken to [1084] prevent a specific harm from occurring. See, e.g., W. LaFave & A. Scott, Criminal Law § 50 (1972). Public policy prohibits applying the defense of necessity to exonerate a person of liability for his or her legal conduct engaged in as a form of civil disobedience, no matter how laudable the person's goals may be. Thus, the defense of necessity has been ruled unavailable in other prosecutions for trespass at abortion clinics (Gaetano v. United States, 406 A.2d 1291, 1294 (D.C.App. 1979); Minnesota v. Rasmussen, 47 U.S.L.W. 2331 (Minn.Mun. 1978)) and in prosecutions for trespass and vandalism protesting the Vietnam War (United States v. Berrigan, 283 F. Supp. 336, 338-40 (D.Md. 1968); State v. Marley, 509 P.2d 1095 (Hawaii 1973)). The court in United States v. Berrigan aptly expressed this rationale:

No civilized nation can endure where a citizen can select what law he would obey because of his moral or religious belief. It matters not how worthy his motives may be. It is axiomatic that chaos would exist if an individual were permitted to impose his beliefs upon others and invoke justification in a court to excuse his transgression of a duly-enacted law.

283 F. Supp. at 339. A person who chooses to disobey a law because he or she believes it is necessary to do so in pursuit of a moral cause must accept responsibility for the illegality of that conduct. This was particularly well stated by Judge Sobeloff in United States v. Moylan, 417 F.2d 1002, 1008 (4th Cir.1969):

From the earliest times when man chose to guide his relations with fellow men by allegiance to the rule of law rather than force, he has been faced with the problem how best to deal with the individual in society who through moral conviction concluded that a law with which he was confronted was unjust and therefore must not be followed. Faced with the stark reality of injustice, men of sensitive conscience and great intellect have sometimes found only one morally justified path, and that path led them inevitably into conflict with established authority and its laws. Among philosophers and religionists throughout the ages there has been an incessant stream of discussion as to when, if at all, civil disobedience, whether by passive refusal to obey a law or by its active breach, is morally justified. However, they have been in general agreement that while in restricted circumstances a morally motivated act contrary to law may be ethically justified, the action must be non-violent and the actor must accept the penalty for his action. In other words, it is commonly conceded that the exercise of a moral judgment based upon individual standards does not carry with it legal justification or immunity from punishment for breach of the law.

Adherents and practitioners of civil disobedience who have reached this conclusion are too many to list. One need only allude to Socrates, Sir Thomas More, Henry David Thoreau, Ghandi, and Martin Luther King, Jr. whose actions supported this proposition. The Lutheran and Episcopal Churches in America have endorsed civil disobedience, but only if action is non-violent and the actor is willing to accept the consequences of his action.

Id. at 1008 & n. 21 (footnote integrated into text) (footnote omitted).

I empathize with the defendants' sorrow over the loss of human lives caused by abortions. I believe the United States Supreme Court burdened this country with a tragic decision when it held in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that the word "person," as used in the fourteenth amendment, does not include the unborn, id. at 158, 93 S.Ct. at 729, 35 L.Ed.2d at 180, and that states cannot "override the rights of the pregnant woman" by "adopting one theory of life." Id. at 162, 93 S.Ct. at 731, 35 L.Ed.2d at 182. I do not agree with the Court's conclusion that a state's interest in potential life does not become "compelling" until the fetus has [1085] attained viability. It stated its explanation for this conclusion as follows:

With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.

410 U.S. at 163, 93 S.Ct. 731-32, 35 L.Ed.2d at 183. As Professor Tribe indicates, "One reads the Court's explanation several times before becoming convinced that nothing has inadvertently been omitted." Tribe, Forward to The Supreme Court 1972 Term, 87 Harv.L.Rev. 1, 4 (1973) (footnote omitted). I agree with Professor Tribe when he states, "Clearly, this [analysis] mistakes `a definition for a syllogism,' and offers no reason at all for what the Court has held." Id., quoting Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 924 (1973) (footnotes omitted).

In effect, the Supreme Court held that because there is no consensus as to when human life begins it must act as though it were proven that human life does not begin until birth so as to preserve to women the right to make their own decision whether an abortion takes a human life or not. It would make more sense to me if, in the face of uncertainty, any error made were made in favor of the fetus, which many believe to be human life.

The development of a zygote into a human child is a continual, progressive development. No one suggests that the born child is not a human being. It seems undeniable, however, that human life begins before birth. As Professor Curran states:

[T]he fetus one day before birth and the child one day after birth are not that significantly or qualitatively different in any respect. Even outside the womb the newborn child is not independent but remains greatly dependent on the mother and others. Birth in fact does not really tell much about the individual as such but only where the individual is — either outside the womb or still inside the womb.

C. Curran, Transition and Tradition in Moral Theology 209 (1979). Similarly, viability does not mark the beginning of the truly human being.

[V]iability again indicates more about where the fetus can live than what it is. The fetus immediately before viability is not that qualitatively different from the viable fetus. In addition viability is a very inexact criterion because it is intimately connected with medical and scientific advances. In the future it might very well be possible for the fetus to live in an artificial womb or even with an artificial placenta from a very early stage in fetal development.

Id. (footnote omitted). I join with those persons who believe that truly human life begins sometime between the second and third week after conception.

Biological information heavily influences this judgment, but the ultimate reason rests on the recognition that individuality, which is a most fundamental characteristic of the truly human being, is not achieved before this time, up to which twinning and recombination can occur. Before this time there is no organizer which directs the differentiation of the pluripotential cells, and without this organizer hominization cannot occur. Also this theory contends that the large number (perhaps as many as 50 percent) of fertilized ova which are spontaneously aborted without the mother being aware of having conceived are not truly human beings.

Id. at 212.

I therefore believe that abortions performed after the second or third week of pregnancy cause the taking of a human life, which should be prohibited under most circumstances. Furthermore, I believe that if a majority of people within a state reach the conclusion that a human life entitled to protection exists some time before birth the people should be able, through their legislature, to enact statutes in accordance with [1086] their "theory of life," as the Court phrased it in Roe v. Wade, 410 U.S. at 162, 93 S.Ct. at 731, 35 L.Ed.2d at 182. Nonetheless, persons who share these convictions must work through the political process to achieve their goals or accept the consequences imposed by our legal system for attempting to achieve their goals by unlawful action.^[1]

[*] Dimond, Senior Justice, sitting by assignment made pursuant to article IV, section 16 of the Constitution of Alaska.

[1] Anchorage Municipal Code 8.30.010 reads, in pertinent part, as follows:

Trespass — Posting of property — Penalty

A. It is unlawful for any person, firm or corporation to commit a trespass upon either public or private property without consent of the owner of the property.

B. Without constituting any limitation upon the provisions of subsection A hereof, any of the following acts by any person, firm or corporation shall be deemed included among those that constitute trespasses in violation of the provisions of subsection A, and appropriate action may be taken hereunder at any time, or from time to time, to prevent or punish any violation or violations of this section.

The aforesaid enumerated acts shall include:... .

2. the pursuit of any course of conduct or action upon the land of another in violation of a notice posted or exhibited at the main entrance to the premises or at any point of approach or entry, or in violation of any notice, warning or protest given orally or in writing by any owner or occupant thereof;

3. a failure or refusal to depart from the premises of another, including publicly owned property, upon request to do so orally or in writing by any owner or occupant thereof; ... .

[2] Appellants rely on Anchorage Municipal Code 8.30.010(B)(3), under which "a failure or refusal to depart from the premises of another, including publicly owned property, upon request to do so orally or in writing by any owner or occupant thereof" constitutes a trespass.

[3] Alaska Dist.Ct.R.Crim.P. 1(a) reads, in part:

"A criminal action is commenced by the filing of a complaint."

[4] Alaska R.Crim.P. 7(c) reads, in part:

No indictment is insufficient, nor can the trial, judgment or other proceedings thereon be affected by reason of a defect or imperfection in matter of form in the indictment, which does not tend to prejudice the substantial rights of the defendant.

[5] See note 2 supra.

[6] Appellants define "occupant" to mean "one having possession" of the premises.

[7] J. Beck, Success in Trespass Gives Right-to-Lifers a Legal Lift, The Washington Star, October 19, 1977, at B1; M. Weil, Va. Abortions Law Held Unconstitutional, The Washington Post, February 11, 1978, at B3.

[8] County of Fairfax v. Gaetano, No. 13974 (Gen.Dist.Ct. of Fairfax County, Va., October 17, 1977); County of Fairfax v. Smith, No. ___ (Gen.Dist.Ct. of Fairfax County, Va., February 11, 1978).

[9] Nelson v. State, 597 P.2d 977, 979 (Alaska 1979). See E. Arnolds & N. Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J.Crim.Law & Criminology 289, 294 (1974); W. LaFave & A. Scott, Criminal Law § 50 at 385-88 (1972). See also AS 11.81.320, directing the courts to apply the common law to the defense of necessity in most situations.

[10] LaFave and Scott note that this requirement may be relaxed in some contexts:

With the defense of necessity, the pressure must come from the physical forces of nature (storms, privations) rather than from other human beings. (When the pressure is from human beings, the defense, if applicable, is called duress rather than necessity).

... .

The typical duress case, however, has involved a situation in which A has ordered B to engage in certain conduct prohibited by the criminal law or else suffer certain consequences. It might well be argued that when an individual acts to avoid a greater harm from a person who has not given such an order — e.g., see People v. Richards, 269 Cal. App.2d 768, 75 Cal. Rptr. 597 (1969), where defendant alleged he escaped from prison to avoid being killed by other inmates — the situation ought to be dealt with as a form of necessity rather than duress. In Richards, the court held the defense of duress was not available because `there was no offer to show that anyone demanded or requested that the defendant escape.'

W. LaFave & A. Scott, Criminal Law § 50 at 381-82 (1972) (footnote integrated into text). Some jurisdictions have agreed. See, e.g., People v. Lovercamp, 43 Cal. App.3d 823, 118 Cal. Rptr. 110 (Cal. App. 1974) (under certain circumstances, necessity defense based upon threats of forcible sodomy may be raised in prosecution of prisoner on escape charges). The United States Supreme Court has defined very narrowly the situations in which a necessity defense to an escape charge may be available, United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980), holding that defendants must produce evidence of a bona fide attempt to surrender or return to custody as soon as the claimed necessity had lost its coercive force. We do not disagree with this expansion of the necessity defense to encompass human threats, but we are in agreement with those commentators who have noted that it should be limited to cases in which the threatened man-made harm is illegal:

The courts which have held the [necessity] defense inapplicable based their decisions primarily on the holding that first trimester abortions are legal. These opinions imply that whenever the harm emanates from a human source, this harm must be unlawful before the necessity defense can be used. This assumption, although not explicit in the cases or statutes, is solidly based in the common law as developed in both older and more recent cases. The early cases did not face the question as they dealt only with harms caused by natural forces, which can never be illegal. When faced with cases involving human-created harms, the courts modified the necessity doctrine and required that the threatened harm be illegal. This requirement continued in the prison escape cases. Although these decisions held necessity to be a proper plea when the threatened harm emanated from a human source, the facts of the cases involved human-created threats of unlawful acts, usually rape, homicide or felonious assault. Recent codifications and judicial opinions discuss the necessity defense in broad terms, neither expressly designating the source of the threatened harm nor its character. They are meant to codify the common law and can fairly be assumed to embody common-law principles. Several states' inclusions of self-defense and defense of another, which both justify otherwise unlawful conduct in the face of another person's unlawful act, support this thesis.

Note, Necessity as a Defense to a Change of Criminal Trespass in an Abortion Clinic, 48 U.Cin.L.Rev. 501, 513 (1979).

[11] Prof. Perkins explains that the "defense of others" doctrine was originally limited to others within the defendant's family or household, or some other group as to whom he had a legal or socially recognized duty of protection. The common-law privilege of using force for crime prevention was not limited in terms of those to whose aid the defendant could come, but was limited to crimes involving felonious attacks. Both have been expanded beyond these original limitations. "The present position, which represents a merging of the privilege of crime prevention with the privilege of defending others, is that one may go to the defense of a stranger if that person is the innocent victim of an unlawful attack." R. Perkins, Criminal Law 1019 (2d ed. 1969).

The new criminal code requires, for both self-defense and defense of others, that the defendant be responding to "what he reasonably believes to be the use of unlawful force." AS 11.81.330(a); 11.81.340.

Thus, even assuming that a fetus should be regarded as an "other" in the context of a "defense of others" claim, the requirement that the threatened harm be illegal precludes such a claim here.

[12] Appellants do argue, however, that abortion is violative of international law. Similar arguments were raised and rejected in Marley. State v. Marley, 509 P.2d 1095, 1109-12 (Hawaii 1973).

[13] See note 8 supra.

[14] United States of America v. Greifelt, 4 Trials of War Criminals Before the Nuernberg Military Tribunal 608 (1949).

[15] However, we are not certain that the distinction is a plausible one. By carving out a necessity defense in abortion protest cases, i.e., judicially sanctioning private attempts to deprive pregnant women of rights the Supreme Court has declared them to have as against the state, this court itself might trigger the "state action" requirement of the Fourteenth Amendment. See Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). If the legislature cannot delegate a "veto power" to the patient's parent or spouse, Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), we think it unlikely that a state court could delegate such a "veto power" to strangers, to be exercised in such an obtrusive manner.

We note that, in Northern Virginia Women's Medical Center v. Balch, 617 F.2d 1045 (4th Cir.1980), the court upheld a district court injunction and contempt order under 42 U.S.C. § 1985 against Mr. Gaetano and other demonstrators who, under the protection of the Fairfax County rulings noted above in n. 8, were systematically blocking access to the abortion clinic without being prosecuted. The complaint charged these demonstrators, with the complicity of the state court judges and prosecutors (who had temporarily suspended prosecutions in such trespass cases), with denying the abortion clinic and its patients the right to perform and obtain abortions in conformity with the Federal Constitution.

[16] The new criminal code contains a similar limitation at AS 11.81.320:

Justification: Necessity. Conduct which would otherwise be an offense is justified by reason of necessity to the extent permitted by common law when

(1) neither this title nor any other statute defining the offense provides exemption or defenses dealing with the justification of necessity in the specific situation involved; and

(2) a legislative intent to exclude the justification of necessity does not otherwise plainly appear.

[17] AS 18.16.010 reads:

Abortions. (a) No abortion may be performed in this state unless (1) the abortion is performed by a physician or surgeon licensed by the State Medical Board under AS 08.64.200; (2) the abortion is performed in a hospital or other facility approved for the purpose by the Department of Health and Welfare or a hospital operated by the federal government or an agency of the federal government; (3) consent has been received from the parent or guardian of an unmarried woman less than 18 years of age; and (4) the woman is domiciled or physically present in the state for 30 days before the abortion. `Abortion' in this section means an operation or procedure to terminate the pregnancy of a nonviable fetus. Nothing in this section requires a hospital or person to participate in an abortion, nor is a hospital or person liable for refusing to participate in an abortion under this section.

(b) A person who knowingly violates a provision of (a) of this section, upon conviction, is punishable by a fine of not more than $1,000, or by imprisonment for not more than five years, or by both.

We express no opinion as to the constitutionality of these provisions. We only cite the statute to note that the legislature has resolved the "choice of evils" questions appellants would have us decide.

[18] A recent law review article cites several policy considerations that lead to the same conclusion:

When a court justifies an illegal act, it creates a new rule of law to govern the same dilemma in the future. In the clinic trespass context, this would mean that all sincere anti-abortion protesters who invaded clinics to prevent abortions would not be subject to criminal liability. There is even authority that clinic personnel or other persons could not use force to stop these justified actions. This could effectively close all abortion clinics so that women would have no means by which to effectuate their decision. This would occur even though clinic action causes no legal harm. There has never been an application of the necessity defense having such profound effects. The prison escape cases do not provide an adequate parallel since courts treat each case as unique, requiring a specific threat to the particular defendant. In the clinic cases a mere showing that abortions were being performed would be enough to acquit the anti-abortion intruder. Necessity was never meant to be applied in such an abusive manner.

The doctrine was developed to deal with unusual circumstances — ones never contemplated by the criminal or civil law. Abortions are not rare occurrences. They are sanctioned by the Constitution and by a substantial portion of society. This is not an area in which the law is silent. When a court applies necessity, its balancing of the harms reflects society's consensus. Necessity is meant to justify action that society would clearly want to exonerate. Trespasses that interfere with constitutional rights do not fall within this purpose.

Allowing necessity to justify these protests permits defendants to choose which laws they will obey based on their own moral code. This would justify acts of civil disobedience. The fact that these protests are the only means available at the moment to stop the abortion does not change the major purpose of the action which protesters and their lawyers admit is to change the law with regard to abortion. This simply cannot be accepted as a proper use of the necessity defense. [footnotes omitted]

Note, Necessity as a Defense to a Charge of Criminal Trespass in an Abortion Clinic, 48 U.Cin.L.Rev. 501, 514-15 (1979).

[19] See note 8 supra.

[1] I would not categorically reject the argument that the defense of necessity may be invoked to justify conduct intended to prevent a particular abortion form being performed, as opposed to conduct intended to protest abortions in general. For example, if a husband were to trespass at a clinic to prevent his wife from obtaining an abortion after the third week of her pregnancy, I believe the harm he would be seeking to prevent would be greater than the harm he would cause. If there were no other adequate means by which he could prevent the abortion, I think the defense of necessity could justify his conduct.

The majority has suggested several reasons why, under even these circumstances, the defense would be unavailable (e.g., the defense is unavailable if the harm being sought to be prevented emanates from lawful human conduct). However, it seems inappropriate to give these issues extensive consideration, inasmuch as it would not affect the outcome of this case. I believe it is preferable to address these issues when and if a case that involves this particular factual situation comes before this court.

THE QUEEN v. DUDLEY AND STEPHENS

December 9, 1884

A man who, in order to escape death from hunger, kills another for the purpose of eating his flesh, is guilty of murder; although at the time of the act he is in such circumstances that he believes and has reasonable ground for believing that it affords the only chance of preserving his life.

At the trial of an indictment for murder it appeared, upon a special verdict, that the prisoners D. and S., seamen, and the deceased, a boy between seventeen and eighteen, were cast away in a storm on the high seas, and compelled to put into an open boat; that the boat was drifting on the ocean, and was probably more than 1000 miles from land; that on the eighteenth day, when they had been seven days without food and five without water, D. proposed to S. that lots should be cast who should be put to death to save the rest, and that they afterwards thought it would be better to kill the boy that their lives should be saved; that on the twentieth day D., with the assent of S., killed the boy, and both D. and S. fed on his flesh for four days; that at the time of the act there was no sail in sight nor any reasonable prospect of relief; that under these circumstances there appeared to the prisoners every probability that unless they then or very soon fed upon the boy, or one of themselves, they would die of starvation: --

Held, that upon these facts, there was no proof of any such necessity as could justify the prisoners in killing the boy, and that they were guilty of murder.

INDICTMENT for the murder of Richard Parker on the high seas within the jurisdiction of the Admiralty.

At the trial before Huddleston, B., at the Devon and Cornwall Winter Assizes, November 7, 1884, the jury, at the suggestion of the learned judge, found the facts of the case in a special verdict which stated

“that, on July 5,1884, the prisoners, Thomas Dudley and Edward Stephens, with one Brooks, all able-bodied English seamen, and the deceased also an English boy, between seventeen and eighteen years of age, the crew of an English yacht, a registered English vessel, were cast away in a storm on the high seas 1600 miles from the Cape of Good Hope, and were compelled to put into an open boat belonging to the said yacht. That in this boat they had no supply of water and no supply of food, except two 1 lb. tins of turnips, and for three days they had nothing else to subsist upon. That on the fourth day they caught a small turtle, upon which they subsisted for a few days, and this was the only food they had up to the twentieth day when the act now in question was committed. That2 on the twelfth day the remains the turtle were entirely consumed, and for the next eight days they had nothing to eat. That they had no fresh water, except such rain as they from time to time caught in their oilskin capes. That the boat was drifting on the ocean, and was probably more than 1000 miles away from land. That on the eighteenth day, when they had been seven days without food and five without water, the prisoners spoke to Brooks as to what should be done if no succour came, and suggested that some one should be sacrificed to save the rest, but Brooks dissented, and the boy, to whom they were understood to refer, was not consulted. That on the 24 th of July, the day before the act now in question, the prisoner Dudley proposed to Stephens and Brooks that lots should be cast who should be put to death to save the rest, but Brooks refused to consent, and it was not put to the boy, and in point of fact there was no drawing of lots. That on that day the prisoners spoke of their having families, and suggested it would be better to kill the boy that their lives should be saved, and Dudley proposed that if there was no vessel in sight by the morrow morning, the boy should be killed. That next day, the 25th of July, no vessel appearing, Dudley told Brooks that he had better go and have a sleep, and made signs to Stephens and Brooks that the boy had better be killed. The prisoner Stephens agreed to the act, but Brooks dissented from it. That the boy was then lying at the bottom of the boat quite helpless, and extremely weakened by famine and by drinking sea water, and unable to make any resistance, nor did he ever assent to his being killed. The prisoner Dudley offered a prayer asking forgiveness for them all if either of them should be tempted to commit a rash act, and that their souls might be saved. That Dudley, with the assent of Stephens, went to the boy, and telling him that his time was come, put a knife into his throat and killed him then and there; that the three men fed upon the body and blood of the boy for four days; that on the fourth day after the act had been committed the boat was picked up by a passing vessel, and the prisoners were rescued, still alive, but in the lowest state of prostration. That they were carried to the port of Falmouth, and committed for trial at Exeter. That if the men had not fed upon the body of the boy they would probably not have survived to be so picked up and rescued, but would within the four days have died of famine. That the boy, being in a much weaker condition, was likely to have died before them. That at the time of the act in question there was no sail in sight, nor any reasonable prospect of relief. That under these circumstances there appeared to the prisoners every probability that unless they then fed or very soon fed upon the boy or one of themselves they would die of starvation. That there was no appreciable chance of saving life except by killing some one for the others to eat. That assuming any necessity to kill anybody, there was no greater necessity for killing the boy than any of the other three men." But whether upon the whole matter by the jurors found the killing of Richard Parker by Dudley and Stephens be felony and murder the jurors are ignorant, and pray the advice of the Court thereupon, and if upon the whole matter the Court shall be of opinion that the killing of Richard Parker be felony and murder, then the jurors say that Dudley and Stephens were each guilty of felony and murder as alleged in the indictment.”

The learned judge then adjourned the assizes until the 25th of November at the Royal Courts of Justice. On the application of the Crown they were again adjourned to the 4th of December, and the case ordered to be argued before a Court consisting of five judges.

Dec. 4.

Sir H. James, A.G. (A. Charles, Q.C., C. Mathews and Danckwerts, with him), appeared for the Crown. The record having been read, A. Collins, Q.C. (H. Clark, and Pyke, with him), for the prisoners, objected, first, that the statement in the verdict that the yacht was a registered British vessel, and that the boat in which the prisoners were belonged to the yacht, was not part of any finding by the jury; secondly, that the formal conclusion of the verdict, "whether upon the whole matter the prisoners were and are guilty of murder, the jury are ignorant," &c., was also no part of the finding of the jury, as they simply found the facts relating to the death of Parker, and nothing else was referred to them; thirdly, that the record could not be filed, for it had been brought Queen into the court by order only, and not by certiorari. Sir H. James, A.G., for the Crown. As to the first point, the Crown are willing that the statement that the yacht was a registered British vessel, and that the boat belonged to the yacht, should be struck out of the record. With regard to the conclusion of the verdict it is according to the form of special verdicts in the Reports: Rex v Pedley; Rex v. Oneby; Mackally's Case; Hazel's Case. As for the certiorari there was no necessity for it, for the Court of Assize is now part of this Court.

[THE COURT intimated that the points taken on behalf of the prisoners were untenable.]

With regard to the substantial question in the case -- whether the prisoners in killing Parker were guilty of murder -- the law is that where a private person acting upon his own judgment takes the life of a fellow creature, his act can only be justified on the ground of self-defence -- self-defence against the acts of the person whose life is taken. This principle has been extended to include the case of a man killing another to prevent him from committing some great crime upon a third person. But the principle has no application to this case, for the prisoners were not protecting themselves against any act of Parker. If he had had food in his possession and they had taken it from him, they would have been guilty of theft; and if they killed him to obtain this food, they would have been guilty of murder. The case cited by Puffendorf in his Law of Nature and Nations, which was referred to at the trial, has been found, upon examination in the British Museum, in the work of Nicholaus Tulpius, a Dutch writer, and it is clear. that it was not a judicial decision.^[1]

[He was stopped.]

A. Collins, Q.C., for the prisoners. The facts found on the special verdict shew that the prisoners were not guilty of murder, at the time when they killed Parker, but killed him under the pressure of necessity. Necessity will excuse an act which would otherwise be a crime. Stephen, Digest of Criminal Law, art. 32, Necessity. The law as to compulsion by necessity is further explained in Stephen's History of the Criminal Law, vol. ii., p. 108, and an opinion is expressed that in the case often put by casuists, of two drowning men on a plank large enough to support one only, and one thrusting the other off, the survivor could not be subjected to legal punishment. In the American case of The United States v. Holmes, the proposition that a passenger on board a vessel may be thrown overboard to save the others is sanctioned. The law as to inevitable necessity is fully considered in Russell on Crimes, Vol. i. p. 847 and there are passages relating to it in Bracton, VOL ii. p., 277; Hale's Pleas of the Crown, p. 54 and c. 40; East's Pleas of the Crown, p. 221, citing Dalton, c. 98, Stephens. "Homicide of Necessity," and several cases, amongst others McGrowther's case; Stratton's Case. Lord Bacon, Bac. Max., Reg. 5, gives the instance of two shipwrecked persons clinging to the same plank and one of them thrusting the other from it, finding that it will not support both, and says that this homicide is excusable through unavoidable necessity and upon the great universal principle of self-preservation, which prompts every man to save his own life in preference to that of another, where one of them must inevitably perish. It is true that Hale's Pleas of the Crown, p. 54, states distinctly that hunger is no excuse for theft, but that is on the ground that there can be no such extreme necessity in this country. In the present case the prisoners were in circumstances where no assistance could be given. The essence of the crime of murder is intention, and here the intention of the prisoners was only to preserve their lives.

Lastly, it is not shewn that there was jurisdiction to try the prisoners in England. They were part of the crew of an English yacht, but for anything that appears on the special verdict the boat may have been a foreign boat, so that they were not within the jurisdiction of the Admiralty: Reg. v. Keyn. The indictment is not upon the Act 17 & 18 Vict. c. 104, for an offence committed by seamen employed or recently employed in a British ship. The special verdict cannot be amended in a capital case by stating the real facts.

Sir H. James, A.G., for the Crown.

[LORD COLERIDGE, C.J. The Court conviction must be affirmed. What course do you invite us to take?]

To pronounce judgment and pass sentence. This was the practice even when, as formerly, the record was removed by certiorari: Rex v. Boyce; Rex v. Athos; Rex v. Cock. THE COURT intimated that judgment would be given on December 9th.

-- -- --

Dec. 9. The judgment of the Court (Lord Coleridge, C.J., Grove and Denman, JJ., Pollock and Huddleston, BB) was delivered by

LORD COLERIDGE, C.J. The two prisoners, Thomas Dudley and Edwin Stephens, were indicted for the murder of Richard Parker on the high seas on the 25th of July in the present year. They were tried before my Brother Huddleston at Exeter on the 6th of November, and, under the direction of my learned Brother, the jury returned a special verdict, the legal effect of which has been argued before us, and on which we are now to pronounce judgment.

The special verdict as, after certain objections by Mr. Collins to which the Attorney General yielded, it is finally settled before us is as follows. [His Lordship read the special verdict as above set out.] From these facts, stated with the cold precision of a special verdict, it appears sufficiently that the prisoners were subject to terrible temptation, to sufferings which might break down the bodily power of the strongest man, and try the conscience of the best. Other details yet more harrowing, facts still more loathsome and appalling, were presented to the jury, and are to be found recorded in my learned Brother's notes. But nevertheless this is clear, that the prisoners put to death a weak and unoffending boy upon the chance of preserving their own lives by feeding upon his flesh and blood after he was killed, and with the certainty of depriving him, of any possible chance of survival. The verdict finds in terms that "if the men had not fed upon the body of the boy they would probably not have survived," and that “the boy being in a much weaker condition was likely to have died before them." They might possibly have been picked up next day by a passing ship; they might possibly not have been picked up at all; in either case it is obvious that the killing of the boy would have been an unnecessary and profitless act. It is found by the verdict that the boy was incapable of resistance, and, in fact, made none; and it is not even suggested that his death was due to any violence on his part attempted against, or even so much as feared by, those who killed him. Under these circumstances the jury say that they are ignorant whether those who killed him were guilty of murder, and have referred it to this Court to determine what is the legal consequence which follows from the facts which they have found.

Certain objections on points of form were taken by Mr. Collins before he came to argue the main point in the case. First it was contended that the conclusion of the special verdict as entered on the record, to the effect that the jury find their verdict in accordance, either way, with the judgment of the Court, was not put to them by my learned Brother, and that its forming part of the verdict on the record invalidated the whole verdict. But the answer is twofold -- (1) that it is really what the jury meant, and that it is but the clothing in legal phraseology of that which is already contained by necessary implication in their unquestioned finding, and (2) that it is a matter of the purest form, and that it appears from the precedents with which we have been furnished from the Crown Office, that this has been the form of special verdicts in Crown cases for upwards of a century at least.

Next it was objected that the record should have been brought into this Court by certiorari, and that in this case no writ of certiorari had issued. The fact is so; but the objection is groundless. Before the passing of the Judicature Act, 1873 (36 & 37 Vict. c. 66), as the courts of Oyer and Terminer and Gaol delivery were not parts of the Court of Queen's Bench, it was necessary that the Queen's Bench should issue its writ to bring before it a record not of its own, but of another Court. But by the 16th section of the Judicature Act, 1873, the courts of Oyer and Terminer and Gaol delivery are now made part of the High Court, and their jurisdiction is vested in it. An order of the Court has been made to bring the record from one part of the court into this chamber, which is another part of the same court; the record is here in obedience to that order; and we are all of opinion that the objection fails.

It was further objected that, according to the decision of the majority of the judges in the Franconia Case, there was no jurisdiction in the Court at Exeter to try these prisoners. But (1) in that case the prisoner was a German, who had committed the alleged offence as captain, of a German ship; these prisoners were English seamen, the crew of an English yacht, cast a way in a storm on the high seas, and escaping from her in an open boat; (2) the opinion of the minority in the Franconia Case has been since not only enacted but declared by Parliament to have been always the law; and (3) 17 & 18 Vict. c. 104, s. 267, is absolutely fatal to this objection. By that section it is enacted as follows: -- “All offences against property or person committed in or at any place either ashore or afloat, out of her Majesty's dominions by any master seaman or apprentice who at the time when the offence is committed is or within three months previously has been employed in any British ship, shall be deemed to be offences of the same nature respectively, and be inquired of, heard, tried, determined, and adjudged in the same manner and by the same courts and in the same places as if such offences had been committed within the jurisdiction of the Admiralty of England.” We are all therefore of opinion that this objection likewise must be overruled.

There remains to be considered the real question in the case whether killing under the circumstances set forth in the verdict be or be not murder. The contention that it could be anything else was, to the minds of us all, both new and strange, and we stopped the Attorney General in his negative argument in order that we might hear what could be said in support of a proposition which appeared to us to be at once dangerous, immoral, and opposed to all legal principle and analogy. All, no doubt, that can be said has been urged before us, and we are now to consider and determine what it amounts to. First it is said that it follows from various definitions of murder in books of authority, which definitions imply, if they do not state, the doctrine, that in order to save your own life you may lawfully take away the life of another, when that other is neither attempting nor threatening yours, nor is guilty of any illegal act whatever towards you or any one else. But if these definitions be looked at they will not be found to sustain this contention. The earliest in point of date is the passage cited to us from Bracton, who lived in the reign of Henry III. It was at one time the fashion to discredit Bracton, as Mr. Reeve tells us, because he was supposed to mingle too much of the canonist and civilian with the common lawyer. There is now no such feeling, but the passage upon homicide, on which reliance is placed, is a remarkable example of the kind of writing which may explain it. Sin and crime are spoken of as apparently equally illegal, and the crime of murder, it is expressly declared, may be committed “lingua vel facto”; so that a man, like Hero "done to death by slanderous tongues," would, it seems, in the opinion of Bracton, be a person in respect of whom might be grounded a legal indictment for murder. But in the very passage as to necessity, on which reliance has been placed, it is clear that Bracton is speaking of necessity in the ordinary sense -- the repelling by violence, violence justified so far as it was necessary for the object, any illegal violence used towards oneself. If, says Bracton, the necessity be “evitabilis, et evadere posset absque occisione, tune erit reus homicidii” -- words which shew clearly that he is thinking of physical danger from which escape may be possible, and that the "inevitabilis necessitas" of which he speaks as justifying homicide is a necessity of the same nature.

It is, if possible, yet clearer that the doctrine contended for receives no support from the great authority of Lord Hale. It is plain that in his view the necessity which justified homicide is that only which has always been and is now considered a justification. "In all these cases of homicide by necessity," says he, "as in pursuit of a felon, in killing him that assaults to rob, or comes to burn or break a house, or the like, which are in themselves no felony" (1 Hale's Pleas of the Crown, p. 491). Again he says that "the necessity which justifies homicide is of two kinds: (1) the necessity which is of a private nature; (2) the necessity which relates to the public justice and safety. The former is that necessity which obligeth a man to his own defence and safeguard, and this takes in these inquiries: What may be done for the safeguard of a man's own life;" and then follow three other heads not necessary to pursue. Then Lord Hale proceeds: "As touching the first of these -- viz., homicide in defence of, a man's own life, which is usually styled se defendendo." It is not possible to use words more clear to shew that Lord Hale regarded the private necessity which justified, and alone justified, the taking the life of another for the safeguard of one's own to be what is commonly called “self-defence.” (Hale's Pleas of, the Crown, i. 478.)

But if this could be even doubtful upon Lord Hale's words, Lord Hale himself has made it clear. For in the chapter in which he deals with the exemption created by compulsion or necessity he thus expresses himself: “If a man be desperately assaulted and in peril of death, and cannot otherwise escape unless, to satisfy his assailant's fury, he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact, for he ought rather to die himself than kill an innocent; but if he cannot otherwise save his own life the law permits him in his own defence to kill the assailant, for by the violence of the assault, and the offence committed upon him by the assailant himself, the law of nature, and necessity, hath made him his own protector cum debito modera mine inculpatee tutelae." (Hale's Pleas of the Crown, Vol. i. 51.)

But, further still, Lord Hale in the following chapter deals with the position asserted by the casuists, and sanctioned, as he says, by Grotius and Puffendorf, that in a case of extreme necessity, either of hunger or clothing; "theft is no theft, or at least not punishable as theft, as some even of our own lawyers have asserted the same." "But," says Lord Hale, "I take it that herein England, that rule, at least by the laws of England, is false; and therefore, if a person, being under necessity for want of victuals or clothes, shall upon that account clandestinely and animo furandi steal another man's goods, it is felony, and a crime by the laws of England punishable with death." (Hale, Pleas of the Crown, i. 54.) If, therefore, Lord Hale is clear -- as he is -- that extreme necessity of hunger does not justify larceny, what would he have said to the doctrine that it justified murder?

It is satisfactory to find that another great authority, second, probably, only to Lord Hale, speaks with the same unhesitating clearness on this matter. Sir Michael Foster, in the 3rd chapter of his Discourse on Homicide, deals with the subject of " homicide founded in necessity"; and the whole chapter implies, and is insensible unless it does imply, that in the view of Sir Michael Foster “necessity and self-defence” (which he defines as "opposing force to force even to the death ") are convertible terms. There is no hint, no trace, of the doctrine now contended for; the whole reasoning of the chapter is entirely inconsistent with it.

In East's Pleas of the Crown (i. 271) the whole chapter on homicide by necessity is taken up with an elaborate discussion of the limits within which necessity in Sir Michael Foster's sense (given above) of self-defence is a justification of or excuse for homicide. There is a short section at the end very generally and very doubtfully expressed, in which the only instance discussed is the well-known one of two shipwrecked men on a plank able to sustain only one of them, and the conclusion is left by Sir Edward East entirely undetermined.

What is true of Sir Edward East is true also of Mr. Serjeant Hawkins. The whole of his chapter on justifiable homicide assumes that the only justifiable homicide of a private nature is the defence against force of a man's person, house, or goods. In the 26th section we find again the case of the two shipwrecked men and the single plank, with the significant expression from a careful writer, “It is said to be justifiable.” So, too, Dalton c. 150, clearly considers necessity and self-defence in Sir Michael Foster's sense of that expression, to be convertible terms, though he prints without comment Lord Bacon's instance of the two men on one plank as a quotation from Lord Bacon, adding nothing whatever to it of his own. And there is a remarkable passage at page 339, in which he says that even in the case of a murderous assault upon a man, yet before he may take the life of the man who assaults him even in self-defence, “cuncta prius tentanda.”

The passage in Staundforde, on which almost the whole of the dicta we have been considering are built, when it comes to be examined, does not warrant the conclusion which has been derived from it. The necessity to justify homicide must be, he says, inevitable, and the example which he gives to illustrate his meaning is the very same which has just been cited from Dalton, shewing that the necessity he was speaking of was a physical necessity, and the self-defence a defence against physical violence. Russell merely repeats the language of the old text-books, and adds no new authority, nor any fresh considerations. Is there, then, any authority for the proposition which has been presented to us? Decided cases there are none. The case of the seven English sailors referred to by the commentator on Grotius and by Puffendorf has been discovered by a gentleman of the Bar, who communicated with my Brother Huddleston, to convey the authority (if it conveys so much) of a single judge of the island of St. Kitts, when that island was possessed partly by France and partly by this country, somewhere about the year 1641. It is mentioned in a medical treatise published at Amsterdam, and is altogether, as authority in an English court, as unsatisfactory as possible. The American case cited by Brother Stephen in his Digest, from Wharton on Homicide, in which it was decided, correctly indeed, that sailors had no right to throw passengers overboard to save themselves, but on the somewhat strange ground that the proper mode of determining who was to be sacrificed was to vote upon the subject by ballot, can hardly, as my Brother Stephen says, be an authority satisfactory to a court in this country. The observations of Lord Mansfield in the case of Rex v. Stratton and Others, striking and excellent as they are, were delivered in a political trial, where the question was whether a political necessity had arisen for deposing a Governor of Madras. But they have little application to the case before us which must be decided on very different considerations.

The one real authority of former time is Lord Bacon, who, in his commentary on the maxim, "necessitas inducit privilegium quoad jura privata," lays down the law as follows:" Necessity carrieth a privilege in itself. Necessity is of three sorts -- necessity of conservation of life, necessity of obedience, and necessity of the act of God or of a stranger. First of conservation of life ; if a man steal viands to satisfy his present hunger, this is no felony nor larceny. So if divers be in danger of drowning by the casting away of some boat or barge, and one of them get to some plank, or on the boat's side to keep himself above water, and another to save his life thrust him from it, whereby he is drowned, this is neither se defendendo nor by misadventure, but justifiable." On this it is to be observed that Lord Bacon's proposition that stealing to satisfy hunger is no larceny is hardly supported by Staundforde, whom he cites for it, and is expressly contradicted by Lord Hale in the passage already cited. And for the proposition as to the plank or boat, it is said to be derived from the canonists. At any rate he cites no authority for it, and it must stand upon his own. Lord Bacon was great even as a lawyer; but it is permissible to much smaller men, relying upon principle and on the authority of others, the equals and even the superiors of Lord Bacon as lawyers, to question the soundness of his dictum. There are many conceivable states of things in which it might possibly be true, but if Lord Bacon meant to lay down the broad proposition that a man may save his life by killing, if necessary, an innocent and unoffending neighbour, it certainly is not law at the present day.

There remains the authority of my Brother Stephen, who, both in his Digest and in his History of the Criminal Law, uses language perhaps wide enough to cover this case. The language is somewhat vague in both places, but it does not in either place cover this case of necessity, and we have the best authority for saying that it was not meant to cover it. If it had been necessary, we must with true deference have differed from him, but it is satisfactory know that we have, probably at least, arrived at no conclusion in which if he had been a member of the Court he would have been unable to agree. Neither are we in conflict with any opinion expressed upon the subject by the learned persons who formed the commission for preparing the Criminal Code. They say on this subject:

We are certainly not prepared to suggest that necessity should in every case be a justification. We are equally unprepared to, suggest that necessity should in no case be a defence; we judge it better to leave such questions to be dealt with when, if ever, they arise in practice by applying the principles of law to the circumstances of the particular case.

It would have been satisfactory to us if these eminent persons could have told us whether the received definitions of legal necessity were in their judgment correct and exhaustive, and if not, in what way they should be amended but as it is we have, as they say, "to apply the principles of law to the circumstances of this particular case."

Now, except for the purpose of testing how far the conservation of a man's own life is in all cases and under all circumstances, an absolute, unqualified, and paramount duty, we exclude from our consideration all the incidents of war. We are dealing with a case of private homicide, not one imposed upon men in the service of their Sovereign and in the defence of their country. Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called “necessity.” But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it. It is not so. To preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it. War is full of instances in which it is a man's duty not to live, but to die. The duty, in case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to women and children, as in the noble case of the Birkenhead; these duties impose on men the moral necessity, not of the preservation, but of the sacrifice of their lives for others from which in no country, least of all, it is to be hoped, in England, will men ever shrink, as indeed, they have not shrunk. It is not correct, therefore, to say that there is any absolute or unqualified necessity to preserve one's life. "Necesse est ut eam, non ut vivam," is a saying of a Roman officer quoted by Lord Bacon himself with high eulogy in the very chapter on necessity to which so much reference has been made. It would be a very easy and cheap display of commonplace learning to quote from Greek and Latin authors, from Horace, from Juvenal, from Cicero, from Euripides, passage after passage, in which the duty of dying for others has been laid down in glowing and emphatic language as resulting from the principles of heathen ethics; it is enough in a Christian country to remind ourselves of the Great Example whom we profess to follow. It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or 'what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be "No" –

"So spake the Fiend, and with necessity

The tyrant's plea, excused his devilish deeds."

It is not suggested that in this particular case the deeds were "devilish," but it is quite plain that such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime. There is no safe path for judges to tread but to ascertain the law to the best of their ability and to declare it according to their judgment; and if in any case the law appears to be too severe on individuals, to leave it to the Sovereign to exercise that prerogative of mercy which the Constitution has intrusted to the hands fittest to dispense it.

It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. It is therefore our duty to declare that the prisoners' act in this case was wilful murder, that the facts as stated in the verdict are no legal justification of the homicide; and to say that in our unanimous opinion the prisoners are upon this special verdict guilty of murder.^[2]

[The COURT then proceeded to pass sentence of death upon the prisoners.^[3]]

Solicitors for the Crown: The Solicitors for the Treasury. 

Solicitors for the prisoners: Irvine & Hodges.

NOTES

[1] Huddleston, B., stated that the full facts of the case had been discovered by Sir Sherston Baker, a member of the Bar, and communicated to him as follows:

A Dutch writer, Nicholas Tulpius, the author of a Latin work, Observationum Medicarum, written at Amsterdam in 1641, states that the following facts were given him by eye-witnesses. Seven Englishmen had prepared themselves in the Island of St. Christopher (one of the Caribbean Islands) for a cruise in a boat for a period of one night only, but a storm drove them so far out to sea that they could not get back to port before seventeen days. One of them proposed that they should cast lots to settle on whose body they should assuage their ravenous hunger. Lots were cast, and the lot fell on him who bad proposed it. None wished to perform the office of butcher; and lots again cast to provide one. The body was afterwards eaten. At length the boat was cast on the shore of the Isle of St. Martin, one of the same group, where the six survivors were treated with kindness by the Dutch, and sent home to St. Christopher.

[2] My brother Grove has furnished me with the following suggestion, too late to be embodied in the judgment but well worth preserving: "If the two accused men were justified in killing Parker, then if not rescued in time, two of the three survivors would be justified in killing the third, and of the two who remained the stronger would be justified in killing the weaker, so that three men might be justifiably killed to give the fourth a chance of surviving."-- C.

[3] This sentence was afterwards commuted by the Crown to six months imprisonment.

[102] David E. McCraw, The New York Times Company, New York, NY (Stephen N. Gikow, New York, NY, on the brief), for Plaintiffs–Appellants The New York Times Company, Charlie Savage, and Scott Shane.

Jameel Jaffer, American Civil Liberties Union Foundation, New York, NY (Hina Shamsi, Brett Max Kaufman, American Civil Liberties Union Foundation, New York, NY, Joshua Colangelo–Bryan, Dorsey & Whitney LLP, New York, NY, Eric Ruzicka, Colin Wicker, Dorsey & Whitney LLP, Minneapolis, M.N., on the brief), for Plaintiffs–Appellants American Civil Liberties Union and American Civil Liberties Union Foundation.

Sharon Swingle, U.S. Appellate Staff Atty., Washington, D.C. (Preet Bharara, U.S. Atty., Sarah S. Normand, Asst. U.S. Atty., New York, NY, Stuart F. Delery, Acting Asst. U.S. Atty. General, Washington, D.C., on the brief), for Defendants–Appellees.

(Bruce D. Brown, Mark Caramanica, Aaron Mackey, The Reporters Committee for Freedom of Press, Arlington, V.A., for amicus curiae The Reporters Committee for Freedom of Press, in support of Plaintiffs–Appellants.).

[103] (Marc Rotenberg, Alan Butler, Ginger McCall, David Brody, Julia Horwitz, Electronic Privacy Information Center, Washington, D.C., for amicus curiae Electronic Privacy Information Center, in support of Plaintiffs–Appellants.).

Before: NEWMAN, CABRANES, and POOLER, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal of a judgment dismissing challenges to denials of requests under the Freedom of Information Act ("FOIA") presents important issues arising at the intersection of the public's opportunity to obtain information about their government's activities and the legitimate interests of the Executive Branch in maintaining secrecy about matters of national security. The issues assume added importance because the information sought concerns targeted killings of United States citizens carried out by drone aircraft. Plaintiffs–Appellants The New York Times Company and New York Times reporters Charlie Savage and Scott Shane (sometimes collectively "N.Y. Times"), and the American Civil Liberties Union and the American Civil Liberties Union Foundation (collectively "ACLU") appeal from the January 24, 2013, judgment of the United States District Court for the Southern District of New York (Colleen McMahon, District Judge) dismissing, on motions for summary judgment, their consolidated FOIA suits. See New York Times Co. v. U.S. Dep't of Justice ("Dist. Ct. Op."), 915 F.Supp.2d 508 (S.D.N.Y.2013). The suits were brought against the Defendants–Appellees United States Department of Justice ("DOJ"), the United States Department of Defense ("DOD"), and the Central Intelligence Agency ("CIA") (sometimes collectively the "Government").

We emphasize at the outset that the Plaintiffs' lawsuits do not challenge the lawfulness of drone attacks or targeted killings. Instead, they seek information concerning those attacks, notably, documents prepared by DOJ's Office of Legal Counsel ("OLC") setting forth the Government's reasoning as to the lawfulness of the attacks.

The issues primarily concern the validity of FOIA responses that (a) decline to reveal even the existence of any documents responsive to particular requests (so-called "Glomar responses" (described below)), (b) acknowledge the existence of responsive documents but decline to reveal either the number or description of such documents (so-called "no number, no-list" responses (described below)), (c) assert various FOIA exemptions or privileges claimed to prohibit disclosure of various documents that have been publicly identified, notably the OLC–DOD Memorandum and other OLC legal opinions, and (d) challenge the adequacy of a FOIA search conducted by one office of DOJ.

We conclude that (1) a redacted version of the OLC–DOD Memorandum must be disclosed, (2) a redacted version of the classifiedVaughn index (described below) submitted by OLC must be disclosed, (3) other legal opinions prepared by OLC must be submitted to the District Court for in camera inspection and determination of waiver of privileges and appropriate redaction, (4) the Glomar and "no number, no list" responses are insufficiently justified, (5) DOD and CIA must submit Vaughn indices to the District Court for in camerainspection and determination of appropriate disclosure and appropriate redaction, and (6) the Office of Information Policy ("OIP") search was sufficient. We therefore affirm in part, reverse in part, and remand.

[104] Background

The FOIA requests at issue in this case focus primarily on the drone attacks in Yemen that killed Anwar al-Awlaki^[1] and Samir Khan in September 2011 and al-Awlaki's teenage son, Abdulrahman al-Awlaki, in October 2011. All three victims were United States citizens either by birth or naturalization.

Statutory Framework. FOIA provides, with exceptions not relevant to this case, that an "agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules ..., shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A) (2013). FOIA contains several exemptions, three of which are asserted in this case.

Exemption 1 exempts records that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1) (2013). Executive Order 13526 allows an agency to withhold information that (1) "pertains to" one of the categories of information specified in the Executive order, including "intelligence activities (including covert action)," "intelligence sources or methods," or "foreign relations or foreign activities of the United States" and (2) if "unauthorized disclosure of the information could reasonably be expected to cause identifiable and describable damage to the national security." Executive Order No. 13526 § 1.1(a)(3)-(4), 1.4(c)-(d), 75 Fed.Reg. 708, 709 (Dec. 29, 2009).

Exemption 3 exempts records that are "specifically exempted from disclosure by [another] statute" if the relevant statute either "requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue" or "establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3)(A)(i), (ii) (2013). Two such statutes are potentially relevant here. The Central Intelligence Agency Act of 1949, as amended, provides that the Director of National Intelligence "shall be responsible for protecting intelligence sources or methods," and exempts CIA from "any other law which require[s] the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency." 50 U.S.C. § 3507 (2013). The National Security Act of 1947, 50 U.S.C. § 3024–1(i)(1) (2013), exempts from disclosure "intelligence sources and methods."

Exemption 5 exempts "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5) (2013). Exemption 5 encompasses traditional common law privileges against disclosure, including the attorney-client and deliberative process privileges. See National Council of La Raza v. Dep't of Justice,411 F.3d 350, 356 (2d Cir.2005).

The N.Y. Times FOIA requests and Government responses. Shane and Savage, New York Times reporters, submitted separate FOIA requests to OLC. Shane's request, submitted in June 2010, sought:

all Office of Legal Counsel opinions or memoranda since 2001 that address the legal status of targeted killings, assassination, or killing of people suspected of [105] ties to Al–Qaeda or other terrorist groups by employees or contractors of the United States government.

Joint Appendix ("JA") 296–97.

Savage's request, submitted in October 2010, sought:

a copy of all Office of Legal Counsel memorandums analyzing the circumstances under which it would be lawful for United States armed forces or intelligence community assets to target for killing a United States citizen who is deemed to be a terrorist.

JA 300–01.

OLC denied Shane's request. With respect to the portion of his request that pertained to DOD, OLC initially submitted a so-called "no number, no list" response^[2] instead of submitting the usual Vaughn index,^[3] numbering and identifying by title and description documents that are being withheld and specifying the FOIA exemptions asserted. A no number, no list response acknowledges the existence of documents responsive to the request, but neither numbers nor identifies them by title or description. OLC said that the requested documents pertaining to DOD were being withheld pursuant to FOIA exemptions 1, 3, and 5.

As to documents pertaining to agencies other than DOD, OLC submitted a so-called "Glomar response."^[4] This type of response neither confirms nor denies the existence of documents responsive to the request. See Wilner v. National Security Agency, 592 F.3d 60, 68 (2d Cir.2009). OLC stated that the Glomar response was given "because the very fact of the existence or nonexistence of such documents is itself classified, protected from disclosure by statute, and privileged" under 5 U.S.C. § 552(b)(1), (3), (5). CIA confirmed that it requested DOJ to submit a Glomar response on its behalf.^[5]

OLC also denied Savage's request. Declining to submit either a Vaughn index or even a no number, no list response, OLC submitted aGlomar response, stating that, pursuant to Exemptions 1, 3, and 5, it was neither confirming nor denying the existence of documents described in the request. Unlike its letter denying the Shane request, OLC's response to the Savage request did not identify any responsive documents relating to DOD.

During the course of the litigation, OLC modified its responses to the Shane and Savage requests by identifying the existence of one document pertaining to DOD, what the District Court and the parties have referred to as the OLC–DOD Memorandum, but claimed that this document [106] was exempt from disclosure under Exemption 5. Because the OLC–DOD Memorandum was classified, it was presumably also withheld under Exemption 1. As to all other DOD documents, it is not clear whether OLC was continuing to assert aGlomar response, as it had made to Shane, or a no number, no list response, as it had made to Savage.

The ACLU FOIA requests and Government responses. In October 2011, ACLU submitted FOIA requests to three agencies: DOJ (including two of DOJ's component agencies, OIP and OLC), DOD, and CIA. The requests, quoted in the margin,^[6] sought various documents concerning the targeted killings of United States citizens [107] in general and al-Awlaki, his son, and Khan in particular.

Both OLC and CIA initially submitted Glomar responses, refusing to confirm or deny the existence of responsive documents, pursuant to Exemptions 1, 3, and 5.

DOD initially stated that it could not respond to the request within the statutory time period because of the scope and complexity of the request.

During the course of the litigation, the Government agencies modified their original responses in light of statements by senior Executive Branch officials on the legal and policy issues pertaining to United States counterterrorism operations and the potential use of lethal force by the United States Government against senior operational leaders of al-Qaeda who are United States citizens.

OLC provided ACLU with a Vaughn index of sixty unclassified responsive documents, each described as an e-mail chain reflecting internal deliberations concerning the legal basis for the use of lethal force against United States citizens in a foreign country in certain circumstances. OLC withheld these documents pursuant to Exemption 5.

OLC also submitted a no number, no list response as to classified documents, stating that it could not provide the number or description of these documents because that information was protected from disclosure by Exemptions 1 and 3. OLC did describe one of these documents as an "OLC opinion related to DoD operations," Declaration of John E. Bies, Deputy Assistant Attorney General, OLC ¶ 38 ("Bies Decl."), JA 279, which it withheld in its entirety under Exemptions 1 and 3. This is apparently not the OLC–DOD Memorandum, which OLC said was exempt from disclosure under Exemption 5. That this document is not the OLC–DOD Memorandum is confirmed by OLC's assertion that this document "cannot be further identified or described on the public record." Id. The OLC–DOD Memorandum was withheld under Exemptions 1 and 5.

OIP located one responsive document, a set of talking points prepared for the Attorney General and others related to "hypothetical questions about Anwar al-Aulaqi's death," Declaration of Douglas R. Hibbard, Deputy Chief of the Initial Request Staff, OIP ¶ 8, JA 441, which it released to ACLU. OIP also issued a Vaughn index listing four unclassified records withheld under Exemptions 3, 5, and 6.^[7]OIP also submitted a no number, no list response to various classified documents withheld under Exemptions 1 and 3.

DOD's revised response disclosed a speech given by Jeh Johnson, then-DOD General Counsel, at Yale Law School on February 22, 2012. DOD also provided ACLU with a Vaughn index listing ten unclassified records, withheld pursuant to Exemption 5. Seven of those documents were e-mail traffic regarding drafts of the speech given by Johnson at Yale Law School and a speech delivered by Attorney General Holder at Northwestern University School of Law. One of the withheld unclassified records was a presentation by Johnson in February 2012, regarding international law principles, to officers who had recently obtained the rank of O7. The remaining two withheld unclassified records were described as "memoranda from the Legal Counsel to the Chairman of the Joint Chiefs of Staff to the White House's National Security Council Legal Advisor addressing the legal basis for conducting [108] military operations against U.S. citizens in general." Declaration of Robert E. Neller, Lt. General, United States Marine Corp, Director of Operations for the Joint Staff at the Pentagon, ¶ 16 ("Neller Decl."). JA 334.

DOD also located responsive classified records. One of these was the previously mentioned OLC–DOD memorandum, which DOD withheld under Exemptions 1 and 5. As to the other classified documents, DOD submitted a no number, no list response.

CIA modified its initial Glomar responses in June 2012 by confirming the existence of "responsive records reflecting a general interest" in two areas described in the ACLU's request: (1) " 'the legal basis ... upon which U.S. citizens can be subjected to targeted killing' " and (2) " 'the process by which U.S. citizens can be subjected to targeted killing.' " Declaration of John Bennett, Director, National Clandestine Service, CIA, ¶ 27 (quoting ACLU request). In these two categories, CIA submitted a no number, no list response, relying on Exemptions 1 and 3, with the exception that CIA acknowledged that it possessed copies of speeches given by the Attorney General at Northwestern University Law School on March 5, 2012, and by the Assistant to the President for Homeland Security and Counterterrorism on April 30, 2012. See id.

The pending lawsuit and District Court opinions. In December 2011, N.Y. Times filed a lawsuit challenging the denials of the Shane and Savage requests. ACLU filed its suit in February 2012. After the suits were consolidated, both Plaintiffs and the Government filed cross-motions for summary judgment. In January 2013, the District Court denied both Plaintiffs' motions for summary judgment and granted the Defendants' motion in both cases, with one exception, which required DOD to submit a more detailed justification as to why the deliberative process exemption (asserted through Exemption 5) applied to two unclassified memos listed in its Vaughn index. See Dist. Ct. Op., 915 F.Supp.2d at 553. Later in January 2013, after receiving a supplemental submission from DOD, the District Court granted the Defendants' motion for summary judgment with respect to the two unclassified DOD memos. See New York Times Co. v. U.S. DOJ("Dist. Ct. Supp. Op."), Nos. 11 Civ. 9336, 12 Civ. 794, 2013 WL 238928 (S.D.N.Y. Jan.22, 2013).

In its principal opinion, which we discuss in more detail in Parts III and IV, below, the Court first ruled that the Government had conducted an adequate search for responsive documents. See Dist. Ct. Op., 915 F.Supp.2d at 532–33. The Court then considered separately each of the Government's claims to an exemption.

As to Exemption 1, concerning properly classified documents, the Court first ruled that there was no evidence that any of the documents withheld pursuant to Exemption 1 had not been properly classified. See id. at 535. The Court specifically considered the Plaintiffs' claim that legal analysis could not be classified and rejected the claim. See id.

Turning to the Plaintiffs' claim of waiver, the Court, citing Wilson v. CIA, 586 F.3d 171, 186 (2d Cir.2009), first ruled that waiver of Exemption 1 had not occurred with respect to classified documents containing operational details of targeted killing missions. See Dist. Ct. Op., 915 F.Supp.2d at 535–37. The Court then specifically considered whether waiver of Exemption 1 had occurred with respect to the OLC–DOD Memorandum and rejected the claim. See id. at 538.

As to Exemption 3, which protects records exempted from disclosure by statute, [109] the District Court first noted that section 102A(i)(1) of the National Security Act, now codified at 50 U.S.C. § 3024(i)(1) (2013), is an exempting statute within the meaning of Exemption 3, and that this provision protects from disclosure "intelligence sources and methods." Id. at 539. The Court then reckoned with ACLU's contention that placing individuals on kill lists does not fall within the category of intelligence sources and methods. Agreeing with a decision of a district court in the District of Columbia, ACLU v. Dep't of Justice, 808 F.Supp.2d 280, 290–92 (D.D.C.2011) ("Drone Strike Case "), which was later reversed on appeal, see ACLU v. CIA, 710 F.3d 422 (D.C.Cir.2013), the District Court here rejected ACLU's argument. See Dist. Ct. Op., 915 F.Supp.2d at 540. The District Court then specifically focused on the issue whether legal analysis could fall within the category of intelligence sources and methods. Acknowledging that it is "entirely logical and plausible" that intelligence sources and methods could be redacted from legal analysis upon in camera inspection, the Court declined to make such inspection or resolve the issue because it concluded that Exemption 5 "plainly applies" to the legal analysis that is sought here. See id.

The District Court then determined that section 6 of the CIA Act, 50 U.S.C. § 403g, now codified at 50 U.S.C. § 3507 (2013), is an exempting statute within the meaning of Exemption 3 and that section 6 protects from disclosure information concerning the "functions" of CIA. See id. at 541. Again, following the district court decision in the Drone Strike Case, before it was reversed, the District Court here ruled that Exemption 3 permitted CIA, in response to ACLU's request, to refuse to reveal the existence of records concerning drone strikes. See id.

As to Exemption 5, covering "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency," the District Court noted that this exemption applies to documents withheld "under the deliberative process privilege (a.k.a., the executive privilege) and the attorney-client privilege," citing this Court's decision in Tigue v. U.S. Dep't of Justice, 312 F.3d 70, 76 (2d Cir.2002). See Dist. Ct. Op., 915 F.Supp.2d at 541–42. OLC relied on the deliberative process privilege to withhold the classified OLC–DOD Memorandum, which both Plaintiffs sought, and DOD relied on this privilege to withhold the two unclassified documents on its Vaughn index that ACLU requested. These two, numbered 9 and 10, were described as "Memorandum from Legal Counsel to Chairman of the Joint Chiefs of Staff to the National Security Legal Advisor with legal analysis regarding the effect of U.S. citizenship on targeting enemy belligerents." JA 409.

With respect to the OLC–DOD Memorandum, the District Court, accepting N.Y. Times's concession that this document at one time might have been properly withheld under the deliberative process and/or attorney-client privileges, see id. at 544, rejected the Plaintiffs' contentions that these privileges had been lost because of one or more of the following principles: waiver, adoption, or working law, seeid. at 546–50.

As to documents 9 and 10 on DOD's Vaughn index, the Court initially found DOD's justification for invoking Exemption 5 inadequate,see id. at 545, but ruled that a subsequent submission sufficiently supported the application of the deliberative process privilege and hence Exemption 5 to these documents, see Dist. Ct. Supp. Op., 2013 WL 238928, at *1.

[110] Finally, the District Court considered the Glomar and no number, no list responses that were given by DOJ, DOD, and CIA. Apparently accepting the sufficiency of the affidavits submitted by officials of these agencies to justify the responses under Exemptions 1 and 3, the Court turned its attention to the Plaintiffs' claims that these protections had been waived. Again, following the district court opinion in the Drone Strike Case, before it was reversed, the District Court here concluded that none of the public statements of senior officials waived entitlement to submit Glomar or no number, no list responses because "[i]n none of these statements is there a reference to any particular records pertaining to the [targeted killing] program, let alone the number or nature of those records." Dist. Ct. Op., 915 F.Supp.2d at 553 (emphases in original).

Information made public after the District Court opinions.^[8] After the District Court entered judgment for the Defendants, one document and several statements of Government officials that the Plaintiffs contend support their claims became publicly available. The document is captioned "DOJ White Paper" and titled "Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al–Qaida or an Associated Force" ("DOJ White Paper"). As the Government acknowledges, see Br. for Appellees at 25, the 16–page, single-spaced DOJ White Paper was leaked to the press and subsequently officially disclosed by DOJ.^[9]The leak occurred on February 4, [111] 2013; the official disclosure occurred four days later.

The statements are those of John O. Brennan, Attorney General Eric Holder, and President Obama. Brennan, testifying before the Senate Select Committee on Intelligence on February 7, 2013, on his nomination to be director of CIA, said, among other things, "The Office of Legal Counsel advice establishes the legal boundaries within which we can operate." Open Hearing on the Nomination of John O. Brennan to be Director of the Central Intelligence Agency Before the S. Select Comm. on Intelligence, 113 Cong. 57 (Feb. 7, 2013) ("Brennan Hearing "), available at http://www.intelligence.senate.gov/130207/transcript. pdf. Holder sent a letter to Senator Patrick J. Leahy, Chairman of the Senate Judiciary Committee on May 22, 2013 ("Holder Letter ").^[10] In that letter Holder stated, "The United States ... has specifically targeted and killed one U.S. citizen, Anwar al-Aulaqi," Holder Letter at unnumbered second page, and acknowledged that United States counterterrorism operations had killed Samir Khan and Abdulrahman al-Awlaki, who, he states, were not targeted by the United States, see id. He also stated, "[T]he Administration has demonstrated its commitment to discussing with the Congress and the American people the circumstances in which it could lawfully use lethal force in a foreign country against a U.S. citizen who is a senior operational leader of al-Qaida or its associated forces, and is actively engaged in planning to kill Americans." Id.He also stated, "The decision to target Anwar al-Aulaki was lawful...." Id. at fourth unnumbered page. President Obama delivered an address at the National Defense University on May 23, 2013.^[11] In that address, the President listed al-Awlaki's terrorist activities and acknowledged that he had "authorized the strike that took him out."

Discussion

I. FOIA Standards.

FOIA calls for "broad disclosure of Government records." CIA v. Sims, 471 U.S. 159, 166, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985). The disclosure obligation is subject to several exemptions. However, "consistent with the Act's goal of broad disclosure, these exemptions have consistently been given a narrow compass." [112] Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (internal quotation marks omitted). Exemptions 1 (classified documents), 3 (documents protected by statute), and 5 (privileged documents), outlined above, have been invoked in this litigation. "The agency asserting the exemption bears the burden of proof, and all doubts as to the applicability of the exemption must be resolved in favor of disclosure."Wilner, 592 F.3d at 69. To meet its burden of proof, the agency can submit "[a]ffidavits or declarations giving reasonably detailed explanations why any withheld documents fall within an exemption." ACLU v. Dep't of Justice, 681 F.3d 61, 69 (2d Cir.2012) (internal quotation marks omitted).

We review de novo a district court's grant of summary judgment in FOIA litigation. See Wilner, 592 F.3d at 69. When an agency claims that a document is exempt from disclosure, we review that determination and justification de novo. See id. When the claimed exemptions involve classified documents in the national security context, the Court must give "substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." ACLU, 681 F.3d at 69 (emphasis in original) (internal quotation marks omitted).

II. Appellants' Claims

Narrowing the scope of the Shane request (OLC opinions that address the legal status of targeted killings) and the Savage request (OLC memoranda analyzing the circumstances under which it would be lawful to kill a United States citizen who is deemed to be a terrorist), Appellant N.Y. Times presses on appeal its request to OLC for disclosure of the OLC–DOD memorandum. N.Y. Times also requests a Vaughn index of all withheld documents, instead of the no number, no list and Glomar responses it has received. See Br. for N.Y. Times at 51–52. ACLU seeks disclosure of the OLC–DOD memorandum; what it refers to as "the Unclassified Memos," Br. for ACLU at 50, 61, which are documents nos. 9 and 10 on DOD's Vaughn index, see Dist. Ct. Op., 915 F.Supp.2d at 545; and "certain OLC memoranda that the agencies have not addressed in this litigation but whose existence they have officially acknowledged in public statements," Br. for ACLU at 50. ACLU also requests Vaughn indices and asks that OIP be required "to renew its search for responsive documents." Br. for ACLU at 61.

III. The OLC–DOD Memorandum

The OLC–DOD Memorandum, as described by OLC, is an "OLC opinion pertaining to the Department of Defense marked classified ... [t]hat ... contains confidential legal advice to the Attorney General, for his use in interagency deliberations, regarding a potential military operation in a foreign country." Bies Decl. ¶ 30.

OLC withheld the OLC–DOD Memorandum as protected from disclosure by Exemption 5 "because it is protected by the deliberative process and attorney-client privileges." Id. DOD withheld the document under Exemptions 1 and 5 "because the content of the document contains information about military operations, intelligence sources and methods, foreign government information, foreign relations, and foreign activities." Neller Decl. ¶ 17. General Neller stated that the classified information in the OLC–DOD Memorandum "is not reasonably segregable." Id.

In upholding the application of Exemption 1 to the OLC–DOD Memorandum, the District Court first ruled that the affidavits supplied by senior Government officials [113] demonstrated that classification had been properly made. See Dist. Ct. Op., 915 F.Supp.2d at 535. The Court then ruled that legal analysis may be classified, citing three district court opinions.^[12]See id. After pointing out that Exemption 1 applies to documents properly classified pursuant to an Executive Order and that Executive Order No. 13526 "applies to any information that 'pertains to' military plans or intelligence activities (including covert action), sources or methods," id., the Court stated, "I see no reason why legal analysis cannot be classified pursuant to E.O. 13526 if it pertains to matters that are themselves classified," id.

In considering the application of Exemption 5 to the OLC–DOD Memorandum, the District Court noted the Government's claim that both the deliberative process and attorney-client privileges protected the document, and observed that N.Y. Times did not disagree that the document might at one time have been withheld under both privileges. See id. at 544.

After determining that Exemptions 1 and 5 applied to the OLC–DOD Memorandum, the Court considered and rejected the Plaintiffs' claims that the Government had waived application of these exemptions. With respect to waiver of Exemption 1, the Court stated that waiver occurs only where the government has "officially" disclosed the information sought, Dist. Ct. Op., 915 F.Supp.2d at 536 (citingHalpern v. FBI, 181 F.3d 279, 294 (2d Cir.1999)), and that official disclosure of classified information occurs only if the classified information is " 'as specific as the information previously released,' " " 'match[es] the information previously disclosed,' " and was " 'made public through an official and documented disclosure,' " id. (quoting Wilson, 586 F.3d at 186). The District Court ruled that no official disclosure had been made concerning documents containing operational details of targeted killings, sought by ACLU, see id.,and that none of the public pronouncements cited by the Plaintiffs "reveals the necessary detailed legal analysis that supports the Administration's conclusion that targeted killing, whether of citizens or otherwise, is lawful," id. at 538 (footnote omitted).

With respect to waiver of Exemption 5, the District Court ruled that the deliberative process privilege had not been waived because "there is no evidence that the Government continually relied upon and repeated in public the arguments made specifically in the OLC–DOD Memo," id. at 549 (emphasis in original) (internal quotation marks omitted), and that "it is sheer speculation that this particular OLC memorandum ... contains the legal analysis that justifies the Executive Branch's conclusion that it is legal in certain circumstances to target suspected terrorists, including United States citizens, for killing away from a 'hot' field of battle," id. The Court saw no need to consider the plaintiffs' claim of waiver in the context of the attorney-client privilege because the deliberative process privilege protected the OLC–DOD Memorandum under Exemption 5. See id.

We agree with the District Court's conclusions that the OLCDOD Memorandum was properly classified and that no waiver of any operational details in that document has occurred. With respect to the document's legal analysis, we conclude that waiver of Exemptions 1 and 5 has [114] occurred.^[13] "Voluntary disclosures of all or part of a document may waive an otherwise valid FOIA exemption," Dow Jones & Co. v. U.S. Dep't of Justice, 880 F.Supp. 145, 150–51 (S.D.N.Y.1995) (citing Mobil Oil Corp. v. E.P.A., 879 F.2d 698, 700 (9th Cir.1989)), vacated in part on other grounds, 907 F.Supp. 79 (S.D.N.Y.1995), and the attorney-client and deliberative privileges, in the context of Exemption 5, may be lost by disclosure, see Brennan Center for Justice v. U.S. Dep't of Justice,697 F.3d 184, 208 (2d Cir.2012).

(a) Loss of Exemption 5. Exemption 5 " 'properly construed, calls for disclosure of all opinions and interpretations which embody the agency's effective law and policy, and the withholding of all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be.' " Id. at 196 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975)). At the same time, we recognize that "the law extends the privilege to legal advice given by a lawyer to his client [because] statements by the lawyer often reveal—expressly or by necessary implication—assumptions of fact based on statements by the client," George A. Davidson & William H. Voth, Waiver of the Attorney–Client Privilege, 64 Oregon L.Rev. 637, 650 (1986).

In considering waiver of the legal analysis in the OLC–DOD Memorandum, we note initially the numerous statements of senior Government officials discussing the lawfulness of targeted killing of suspected terrorists, which the District Court characterized as "an extensive public relations campaign to convince the public that [the Administration's] conclusions [about the lawfulness of the killing of al-Awlaki] are correct." Dist. Ct. Op., 915 F.Supp.2d at 524. In a March 25, 2010, speech at the annual meeting of the American Society of International Law in Washington, D.C., then-Legal Adviser of the State Department Harold Hongju Koh said, "U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war." JA 113, 124. In a February 22, 2012, speech at the Yale Law School, Jeh Johnson, then-General Counsel of DOD, "summarize[d] ... some of the basic legal principles that form the basis for the U.S. military's counterterrorism efforts against Al Qaeda and its associated forces," JA 399, and referring explicitly to "targeted killing," said, "In an armed conflict, lethal force against known, individual members of the enemy is a long-standing and long-legal practice," JA 402.

In a March 5, 2012, speech at Northwestern University, Attorney General Holder said, "[I]t is entirely lawful—under both United States law and applicable law of war principles—to target specific senior operational leaders of al Qaeda and associated forces." JA 449. He discussed the relevance of the Due Process Clause, id., and maintained that killing a senior al Qaeda leader would be lawful at least in circumstances where

[f]irst, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

JA 450. Amplifying this last point, he stated that "use of lethal force by the United States will comply with the four fundamental law of war principles governing [115] the use of force: ... necessity[,] ... distinction [,] ... proportionality[,] ... [and] humanity." Id. As the District Court noted, "The Northwestern Speech [by the Attorney General] discussed the legal considerations that the Executive Branch takes into consideration before targeting a suspected terrorist for killing" and "the speech constitutes a sort of road map of the decision-making process that the Government goes through before deciding to 'terminate' someone 'with extreme prejudice.' " Dist. Ct. Op., 915 F.Supp.2d at 537.

In an April 30, 2012, speech at the Wilson Center in Washington D.C., John O. Brennan, then-Assistant to the President for Homeland Security and Counterterrorism, said, "Yes, in full accordance with the law, and in order to prevent terrorist attacks on the United States and to save American lives, the United States Government conducts drone strikes against specific al-Qaida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones." JA 95. On Feb. 7, 2013, Brennan, testifying on his nomination to be director of CIA, said, "The Office of Legal Counsel advice establishes the legal boundaries within which we can operate." Brennan Hearing at 57.

Even if these statements assuring the public of the lawfulness of targeted killings are not themselves sufficiently detailed to establish waiver of the secrecy of the legal analysis in the OLC–DOD Memorandum, they establish the context in which the most revealing document, disclosed after the District Court's decision, should be evaluated. That document is the DOJ White Paper, officially released on Feb. 4, 2013. See note 9, above. Before considering the relevance of the DOJ White Paper to the Government's claim to continued secrecy and privilege of the legal analysis in the OLC–DOD Memorandum, we describe that Memorandum, which we have examined in camera, in some detail.

The OLC–DOD Memorandum is a 41–page classified document, dated July 16, 2010, captioned:

MEMORANDUM FOR THE ATTORNEY GENERAL

Re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shykh Anwar al-Aulaki^[14]

It was prepared on the letterhead of OLC and signed by David J. Barron, Acting Assistant Attorney General.

The OLC–DOD Memorandum has several parts. After two introductory paragraphs, Part I(A) reports intelligence that OLC has received concerning the relationship between Al–Qaida in the Arabian Peninsula ("AQAP") and al-Qaida, the organization and operation of AQAP, and the role al-Awlaki performs with AQAP. Parts I(B) and I(C) describe the manner in which government agencies would perform the targeted killing of al-Awlaki. Part II(A) considers Title 18 U.S.C. § 1119 (2013), entitled "Foreign murder of United States nationals" and explains why section 1119 does not proscribe killings covered by a traditionally recognized justification. Part II(B) explains why section 1119 incorporates one such justification, the public authority justification. Part III(A) explains why the public authority justification encompasses DOD's role in the contemplated targeted killing, and Part III(B) explains why that justification encompasses another agency's role in the killing. Part IV explains why the contemplated killing would not violate 18 U.S.C. § 956(a) (2013), entitled "Conspiracy to kill, maim, or injure [116] persons or damage property in a foreign country." Part V explains why the contemplated killing would not violate 18 U.S.C. § 2441 (2013), entitled "War crimes." Part VI explains why the contemplated killing would not violate the Fourth or Fifth Amendments of the Constitution.

The 16–page, single-spaced DOJ White Paper virtually parallels the OLC–DOD Memorandum in its analysis of the lawfulness of targeted killings. Like the Memorandum, the DOJ White Paper explains why targeted killings do not violate 18 U.S.C. §§ 1119 or 2441, or the Fourth and Fifth Amendments to the Constitution, and includes an analysis of why section 1119 encompasses the public authority justification. Even though the DOJ White Paper does not discuss 18 U.S.C. § 956(a), which the OLC–DOD Memorandum considers, the substantial overlap in the legal analyses in the two documents fully establishes that the Government may no longer validly claim that the legal analysis in the Memorandum is a secret. After the District Court's decision, Attorney General Holder publicly acknowledged the close relationship between the DOJ White Paper and previous OLC advice on March 6, 2013, when he said at a hearing of the Senate Committee on the Judiciary that the DOJ White Paper's discussion of imminence of threatened action would be "more clear if it is read in conjunction with the underlying OLC advice."^[15]Oversight of the U.S. Department of Justice Before the Senate Committee on the Judiciary, 113th Cong. (Mar. 6, 2013).

After senior Government officials have assured the public that targeted killings are "lawful" and that OLC advice "establishes the legal boundaries within which we can operate," and the Government makes public a detailed analysis of nearly all the legal reasoning contained in the OLC–DOD Memorandum, waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred.

The recent opinion of the District Court for the Northern District of California, First Amendment Coalition v. U.S. Dep't of Justice, No. 4:12–cv–01013–CW, 2014 WL 1411333 (N.D.Cal. April 11, 2014), denying an FOIA request for the OLC–DOD Memorandum, is readily distinguishable because the Court, being under the impression that "there has been no 'official disclosure' of the White Paper," id., 2014 WL 1411333 at 12, did not assess its significance, whereas in our case, the Government has conceded that the White Paper, with its detailed analysis of legal reasoning, has in fact been officially disclosed, see footnote 10, supra.

In resisting disclosure of the OLC–DOD Memorandum, the Government contends that making public the legal reasoning in the document will inhibit agencies throughout the Government from seeking OLC's legal advice. The argument proves too much. If this contention were upheld, waiver of privileges protecting legal advice could never occur. In La Raza, we explained that "[l]ike the deliberative process privilege, the attorney-client privilege may not be invoked to protect a document adopted as, or incorporated by reference into, an agency's policy." 411 F.3d at 360. Here, the Government has done so by publicly asserting that OLC advice "establishes the legal boundaries within which we can operate"; it "cannot invoke that relied-upon authority and then shield it from public view." [117] Brennan Center, 697 F.3d at 207–08. Agencies seeking OLC legal advice are surely sophisticated enough to know that in these circumstances attorney/client and deliberative process privileges can be waived and the advice publicly disclosed. We need not fear that OLC will lack for clients.

The Government also argues that because the OLC–DOD Memorandum refers to earlier OLC documents that remain classified, those assessing the legal reasoning in the OLC–DOD Memorandum might find the reasoning deficient without an opportunity to see the previous documents. However, the reasoning in the OLC–DOD Memorandum is rather elaborate, and readers should have no difficulty assessing the reasoning on its own terms. Moreover, the Government had no similar concern when it released the DOJ White Paper, the reasoning of which cannot be properly assessed, on the Government's argument, without seeing the OLC–DOD Memorandum.Finally, the Government always has the option of disclosing redacted versions of previous OLC advice.

The loss of protection for the legal analysis in the OLC–DOD Memorandum does not mean, however, that the entire document must be disclosed. FOIA provides that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." 5 U.S.C. § 552b. The Government's waiver applies only to the portions of the OLC–DOD Memorandum that explain legal reasoning. These are Parts II, III, IV, V, and VI of the document, and only these portions will be disclosed. Even within those portions of the document, there are matters that the Government contends should remain secret for reasons set forth in the Government's classified ex parte submission, which we have reviewed in camera.

One of those reasons concerns [redacted] the Government persuasively argues warrants continued secrecy. [redacted] We will redact all references to that [redacted].^[16]

Two arguments concern facts mentioned within the legal reasoning portions of the OLC–DOD Memorandum that no longer merit secrecy. One is the identity of the country in which al-Awlaki was killed. However, numerous statements by senior Government officials identify that country as Yemen. On September 30, 2011, DOD released a transcript reporting then-Secretary of Defense Panetta stating, "[W]e've been working with the Yemenis over a long period of time to be able to target Awlaki, and I want to congratulate them on their efforts, their intelligence assistance, their operational assistance to get the job done." JA 799. On October 25, 2011, President Obama, appearing on a network television program, said, referring to al-Awlaki, "[I]t was important that, working with the [Yemenis,]^[17]we were able to remove him from the field." Transcript of The Tonight Show with Jay Leno (Oct. 25, 2011). JA 556. On the day al-Awlaki was killed, September 3, 2011, DOD's Armed Forces Press Service reported, "A U.S. airstrike that killed Yemeni-based terrorist Anwar al-Awlaki early this morning is a testament to the close cooperation between the United States and Yemen, Defense Secretary Leon E. Panetta said today." JA 651. The report continued, "Obama and Panetta congratulated the Yemenis on their intelligence and operational [118] assistance in targeting [al-]Awlaki." Id. It is no secret that al-Awlaki was killed in Yemen. However, the OLC–DOD Memorandum contains some references to the Yemeni government that are entitled to secrecy and will be redacted.

The other fact within the legal reasoning portion of the OLC–DOD Memorandum that the Government contends merits secrecy is the identity of the agency, in addition to DOD, that had an operational role in the drone strike that killed al-Awlaki. Both facts were deleted from the April 21 public opinion, but have been restored in this opinion. Apparently not disputing that this fact has been common knowledge for some time, the Government asserts the importance of concealing any official recognition of the agency's identity. The argument comes too late.

A March 18, 2010, Wall Street Journal article quotes Panetta, then CIA Director:

"Anytime we get a high value target that is in the top leadership of al Qaeda, it seriously disrupts their operations," Mr. Panetta said. "It sent two important signals," Mr. Panetta said. "No. 1 that we are not going to hesitate to go after them wherever they try to hide, and No. 2 that we are continuing to target their leadership."

"Drone Kills Suspect in CIA Suicide Bombing," The Wall Street Journal (Mar. 18, 2010). Although the reference to "we" is not unequivocally to CIA and might arguably be taken as a reference to the Government generally, any doubt on this score was eliminated three months later.

In a June 27, 2010, interview with Jake Tapper of ABC News, Panetta said:

[W]e are engaged in the most aggressive operations in the history of the CIA in that part of the world, and the result is that we are disrupting their leadership. We've taken down more than half of their Taliban leadership, of their Al Qaida leadership. We just took down number three in their leadership a few weeks ago.

...

Awlaki is a terrorist and yes, he's a United States citizen, but he is first and foremost a terrorist and we're going to treat him like a terrorist. We don't have an assassination list, but I can tell you this. We have a terrorist list and he's on it.

Tr. of This Week telecast, available at http://abcnews.go.com/ThisWeek/week-transcriptpanetta/story?id=11025299&singlePage=true.

On October 7, 2011, Panetta, then Secretary of Defense, was quoted as saying in a speech to sailors and Marines at the United States Navy's 6th Fleet headquarters in Naples, "Having moved from the CIA to the Pentagon, obviously I have a hell of a lot more weapons available to me in this job than I had at the CIA, although the Predators aren't bad." "U.S.: Defense secretary refers to CIA drone use," Los Angeles Times (Oct. 7, 2011).

On January 29, 2012, the following occurred when Secretary of Defense Panetta was interviewed by Scott Pelley on the CBS television program "60 Minutes":

Asked, "You killed al-Awlaki?" Panetta "nodded affirmatively," as described by the District Court, see Dist. Ct. Op., 915 F.Supp.2d at 530. Then, when asked about identifying for killing a person who has been identified as an enemy combatant, Panetta says, "It's a recommendation we make, it's a recommendation the CIA director makes in my prior role ... the President of the United States has to sign off." Web Extra presentation, available at http:// www.cbsnews.com/video/watch/?id=7396830n, at 0:01, 2:30. CIA's former director has publicly acknowledged CIA's role in the killing of al-Awlaki.

[119] On February 7, 2014, Rep. Mike Rogers, chairman of the House Select Committee on Intelligence, disclosed that his committee has overseen the CIA's targeted-killing strikes since "even before they conducted that first air strike that took Awlaki." Transcript, Face the Nation, CBS News (Feb. 10, 2013), http://cbsn.ws/ZgB9R.

On February 11, 2014, the following exchange occurred between Senator Bill Nelson and James R. Clapper, Director of National Intelligence, at a hearing of the Senate Armed Services Committee:

Senator NELSON. It is—you tell me if this is correct—the administration's policy that they are exploring shifting the use of drones, unmanned aerial vehicle strikes, from the CIA to the DOD. Is that an accurate statement?

Mr. CLAPPER. Yes, sir. it is.

Testimony on Current and Future Worldwide Threats to the National Security of the United States, Hearing Before the Senate Armed Services Comm., 113th Cong. 37 (2014), available at http://www.armed-services.senate.gov/imo/media/doc.14-07 - 2-11-14.pdf. It is no secret that CIA has a role in the use of drones.

(b) Loss of Exemption 1. Much of the above discussion concerning loss of Exemption 5 is applicable to loss of Exemption 1. As the District of Columbia Circuit has noted, "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears 'logical' or 'plausible.' " Wolf v. CIA, 473 F.3d 370, 374–75 (D.C.Cir.2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C.Cir.1982)). But Gardels made it clear that the justification must be "logical" and "plausible" "in protecting our intelligence sources and methods from foreign discovery." 689 F.2d at 1105.

The District Court noted the Government's contention that " '[i]t is entirely logical and plausible that the legal opinion contains information pertaining to military plans, intelligence activities, sources and methods, and foreign relations.' (Gov't Memo. in Opp'n/Reply 6)." Dist. Ct. Op., 915 F.Supp.2d at 540. But the Court then astutely observed, "[T]hat begs the question. In fact, legal analysis is not an 'intelligence source or method.' " Id.

We recognize that in some circumstances the very fact that legal analysis was given concerning a planned operation would risk disclosure of the likelihood of that operation, but that is not the situation here where drone strikes and targeted killings have been publicly acknowledged at the highest levels of the Government. We also recognize that in some circumstances legal analysis could be so intertwined with facts entitled to protection that disclosure of the analysis would disclose such facts. Aware of that possibility, we have redacted, as explained above, the entire section of the OLC–DOD Memorandum that includes any mention of intelligence gathering activities. The only other facts mentioned in the pure legal analysis portions of the OLC-DOD Memorandum—the identification of the country where the drone strike occurred and CIA's role—have both already been disclosed, also as explained above. With respect to disclosure of CIA's role, we can be confident that neither Senator Dianne Feinstein, Chairman of the Senate Select Committee on Intelligence, nor Representative Mike Rogers, Chairman of the House Select Committee on Intelligence, thought they were revealing a secret when they publicly discussed CIA's role in targeted killings by drone strikes.^[18]

[120] The three-part test for "official" disclosure, relevant to Exemption 1, which the District Court took from Wilson, 586 F.3d at 186, has been sufficiently satisfied. The legal analysis in the OLC–DOD Memorandum is " 'as specific as the information previously released' " in the DOJ White Paper, it " 'match[es] the information previously disclosed,' " and was " 'made public through an official and documented disclosure.' " Dist. Ct. Op., 915 F.3d at 536 (quoting Wilson, 586 F.3d at 186). In reaching this conclusion, we do not understand the "matching" aspect of the Wilson test to require absolute identity. Indeed, such a requirement would make little sense. A FOIA requester would have little need for undisclosed information if it had to match precisely information previously disclosed.^[19]

With the redactions and public disclosures discussed above, it is no longer either "logical" or "plausible" to maintain that disclosure of the legal analysis in the OLC–DOD Memorandum risks disclosing any aspect of "military plans, intelligence activities, sources and methods, and foreign relations." The release of the DOJ White Paper, discussing why the targeted killing of al-Awlaki would not violate several statutes, makes this clear. The additional discussion of 18 U.S.C. § 956(a) in the OLC–DOD Memorandum adds nothing to the risk. Whatever protection the legal analysis might once have had has been lost [121] by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper.

IV. Legal Analysis in Other Withheld Documents^[20]

In addition to seeking at least the legal analysis in the OLC–DOD Memorandum, ACLU also seeks disclosure of the legal analysis in documents numbered 9 and 10 on DOD's unclassified Vaughn index and in other OLC legal memoranda the existence of which ACLU contends have been officially acknowledged in public statements. See Br. for ACLU at 50. ACLU contends that Senator Feinstein said at the confirmation hearing of Brennan to be CIA director that there are eleven such memoranda, see id. at 50 n. 25, of which four were provided to the Senate Select Committee on Intelligence, see id. at 24 & n. 9.

Documents numbered 9 and 10 are DOD legal memoranda, which were made available to this Court ex parte for in camerainspection. As to these documents, we agree with the District Court that the declaration of Richard C. Gross, Brigadier General, United States Army, JA 863, adequately supports the application of Exemption 5. See Dist. Ct. Supp. Op., 2013 WL 238928, at *1. As General Gross pointed out, these brief documents (two and four pages respectively) are informal and predecisional. One does not even identify the sender or the receiver. They mention legal authorities, but in no way resemble the detailed, polished legal analysis in the disclosed DOJ White Paper. At most, they are "part of a process by which governmental decisions and policies are formulated, [or] the personal opinions of the writer prior to the agency's adoption of a policy." Public Citizen, Inc. v. Office of Management and Budget, 598 F.3d 865, 875 (D.C.Cir.2010) (alteration in original) (internal quotation marks omitted). See also Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C.Cir.2006) (protecting as deliberative "the give-and-take of the consultative process") (internal quotation marks omitted). No waiver of Exemption 5 has occurred with respect to these two documents.

The other OLC legal memoranda have not been submitted to this Court for in camera inspection, and we are therefore unable to adjudicate the waiver issue as to these memoranda, nor determine, if waiver has occurred, what portions of these documents must be redacted. It is possible that waiver of any claimed privileges applies to the legal reasoning in these documents for the same reasons applicable to the OLC–DOD Memorandum. On remand, these memoranda must be produced to the District Court for in camera examination and determination of waiver and appropriate redaction, in light of our rulings with respect to disclosure and redaction of the legal reasoning in the OLC–DOD Memorandum.

V. Glomar and No Number, No List Responses

As set forth above, OLC, DOD, and CIA submitted either Glomar or no [122] number, no list responses to the N.Y. Times and ACLU requests, in addition to Vaughn indices. For clarification, we set forth in the margin a chart showing the revised responses of the three agencies.^[21] An agency may withhold information on the number of responsive documents and a description of their contents if those facts are protected from disclosure by a FOIA exemption. See Wilner, 592 F.3d at 67–69; Hayden v. National Security Agency,608 F.2d 1381, 1384 (D.C.Cir.1979). However, we agree with the D.C. Circuit that "[s]uch a response would only be justified in unusual circumstances, and only by a particularly persuasive affidavit." ACLU, 710 F.3d at 433.

The Government's core argument to justify the Glomar and no number, no list responses, as it was with the effort to withhold the OLC–DOD Memorandum, is that identification of any document that provides legal advice to one or more agencies on the legality of targeted killings "would tend to disclose the identity of the agency or agencies that use targeted lethal force against certain terrorists who are U.S. citizens...." Br. for Appellees at 37. If one of those agencies is CIA, the Government's argument continues, disclosure of any information in a Vaughn index that "would tend to disclose the identity" of that agency must be protected because, the Government claims, "[T]he government has never disclosed (with the exception of the Bin Laden operation) whether the CIA has an operational role in the use of targeted lethal force or is authorized to use such force." Id. at 38.

As was true of waiver of privileges that might originally have protected the legal reasoning in the OLC–DOD Memorandum, the statements of Panetta when he was Director of CIA and later Secretary of Defense, set forth above, have already publicly identified CIA as an agency that had an operational role in targeted drone killings.^[22] With CIA identified, the Appellees' main argument for the use ofGlomar and no number, no list responses evaporates. The Vaughn index submitted by OLC in camera must be disclosed, and DOD and CIA must submit classified Vaughn indices to the District Court on remand for in camera inspection and determination of appropriate disclosure and appropriate redaction.

As was also true of the OLC–DOD Memorandum, however, the requirement of disclosing the agencies' Vaughn indices does not necessarily mean that either the number or the listing of all documents on those indices must be disclosed. The Appellees argue persuasively that with respect to documents concerning a contemplated military operation, disclosure of the number of such documents must remain secret because a large number might alert [123] the enemy to the need to increase efforts to defend against attacks or to avoid detection and a small number might encourage a lessening of such efforts. Accordingly, all listings after number 271 on OLC'sVaughn index will remain secret. See Wilner, 592 F.3d at 70 (upholding Glomar response as to identification of documents that would reveal "details of [a] program's operations and scope"). The titles and descriptions of listings 67, 72, 119, 250, 262–65, 271, and all listings after 271; the titles of listings 8, 57–66, 68–71, 73, 76–80, 83, 88–91, 92, 93, 95–100, 102–104, 108, 117, 120, 123–28, 130, and 132; and the descriptions of listing numbers 1–4, 6, 69, 72, 80–82, 87, 92, 103–04, 244–49, and 256 reveal information entitled to be protected. Listing numbers 10–49, 51–56, 84–86, 94, 101, 105–09, 111–12, 114–15, 251, 255, 257–61, and 266–67 describe email chains (or copies of chains). Because the Plaintiffs informed the District Court that they were not seeking these items, see Dist. Ct. Op.,915 F.Supp.2d at 545, these listings need not be disclosed.

No reason appears why the descriptions of the remaining listed documents need to be kept secret. Listing number 5 is the OLC–DOD Memorandum; listing numbers 7 (except for the identity of the sending agency), 9, 50, 250, 262–64, 265 (except for the identity of the sending agency), and 269–71 describe documents and attorney notes concerning legal advice; listing numbers 57–66, 68, 70–71, 73–83, 88–91, 93, 95 (except for the identity of the sending agency), 96–100, 102–04, 110, 113, 116 (except for the identity of the sending agency), 117 (except for the identity of the sending agency), 118, 120–22, and 144–45 are described as including factual information concerning al-Awlaki; listing numbers 123–30 are described as unclassified open source materials; listing numbers 131–43 and 148–237 are described as drafts of the OLC–DOD Memorandum; listing numbers 238–43 are described as drafts of other documents; listing numbers 146–47 are described as drafts of Document 86A, a listing that does not appear on the OLC's Vaughn index; and listing numbers 252–54 and 268 are described as including [redacted]^[23].

Some, perhaps all, of the information in many of these documents might be protected as classified intelligence information or predecisional. If the Plaintiffs challenge the applicability of a cited exemption, the District Court, after in camera inspection, will be able to determine which of these documents need to be withheld and which portions of these documents need to be redacted as subject to one or more exemptions that have not been waived. At this stage, we decide only that the number, title, and description of all documents listed on OLC's classified Vaughn index must be disclosed, with the exceptions set forth above on page 122–23.

Unlike OLC, DOD and CIA did not provide this Court with classified Vaughn indices, and we are unable to distinguish among listed document numbers, which titles or descriptions merit secrecy. We will therefore direct that, upon remand, DOD and CIA will provide the District Court with classified Vaughn indices listing documents responsive to the Plaintiffs' requests. From these indices, the District Court, with the guidance provided by this opinion, should have little difficulty, after examining whatever further affidavits DOD and CIA care to submit to claim protection of specific listings, to determine which listings on these indices may be disclosed. See ACLU, 710 F.3d at 432 (prescribing a similar procedure after rejecting a Glomar response).

VI. Adequacy of OIP's Search

Finally, ACLU argues that OIP did not make an adequate search because it did not disclose thirty e-mail chains with other DOJ offices that were found during OLC's search for responsive [124] records. See Br. for ACLU at 60. However, as this Court has recognized, a search is not inadequate merely because it does not identify all responsive records. See Grand Central Partnership, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir.1999). The adequacy of a search is not measured by its results, but rather by its method. See Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984). To show that a search is adequate, the agency affidavit "must be relatively detailed and nonconclusory, and submitted in good faith." Grand Central Partnership, 166 F.3d at 489 (internal quotation marks omitted). The affidavit submitted by an OIP official, JA 412–419 ¶¶ 7–34, easily meets these requirements, and the November 3, 2011, cutoff date was reasonable as the date on which the search was commenced. See Edmonds Institute v. U.S. Dep't of Interior,383 F.Supp.2d 105, 110–11 (D.D.C.2005).

Conclusion

For the reasons stated above, we conclude that:

(1) a redacted version of the OLC–DOD Memorandum (attached as Appendix A to this opinion) must be disclosed;

(2) a redacted version of the classified Vaughn index submitted by OLC must be disclosed, including only

(a) the titles and descriptions of listings 5, 7 (except for the identity of the sending agency in the description), 9, 50, 74, 75, 110, 113, 121, 122, 129, 131, 133–243, 269, and 270, and

(b) the descriptions of listings 57, 58–61, 62, 63, 64, 65, 66, 68, 69, 70, 71, 73, 76, 77, 78, 79, 80, 81, 82, 83, 87, 88, 89–91, 92, 93, 95 (except for the identity of the sending agency in the description), 96, 97, 98, 99, 100, 102, 103, 104, 116 (except for the identity of the sending agency in the description), 117 (except for the identity of the sending agency in the description), 118, 120, 123–28, 130, and 132;

(3) other legal memoranda prepared by OLC and at issue here must be submitted to the District Court for in camera inspection and determination of waiver of privileges and appropriate redaction;

(4) the Glomar and "no number, no list" responses are insufficiently justified;

(5) DOD and CIA must submit Vaughn indices to the District Court for in camera inspection and determination of appropriate disclosure and appropriate redaction; and

(6) the OIP search was sufficient.

We therefore affirm in part, reverse in part, and remand.^[24]

Appendix A

OLC–DOD Memorandum after appropriate redactions and deletion of classification codes (redactions in the OLC–DOD Memorandum are indicated by white spaces)

U.S. Department of Justice

Office of the General Counsel

Office of the Assistant Attorney General

Washington, D.C. 20530

July 16, 2010

MEMORANDUM FOR THE ATTORNEY GENERAL

Re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi

II.

We begin our legal analysis with a consideration of section 1119 of title 18, entitled [125] "Foreign murder of United States nationals." Subsection 1119(b) 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." 18 U.S.C. § 1119(b).^[6] In light of the nature of the contemplated operations described above, and the fact that their target would be a "national of the United States" who is outside the United States, we must examine whether section 1119(b) would prohibit those operations. We first explain, in this part, the scope of section 1119 and why it must be construed to incorporate the public authority justification, which can render lethal action carried out by a governmental official lawful in some circumstances. We next explain in part III–A why that public authority justification would apply to the contemplated DoD operation. Finally, we explain in part III–I3 why that justification would apply to the contemplated CIA operation. As to each agency, we focus on the particular circumstances in which it would carry out the operation.

A.

Although section 1119(b) refers only to the "punish[ments]" provided under sections 1111, 1112, and 1113, courts have construedsection 1119(b) to incorporate the substantive elements of those cross-referenced provisions of title 18. See, e.g., United States v. Wharton, 320 F.3d 526, 533 (5th Cir.2003); United States v. White, 51 F.Supp.2d 1008, 1013–14 (E.D.Ca.1997). Section 1111 of title 18 sets forth criminal penalties for "murder," and provides that murder is the unlawful killing of a human being with malice aforethought.Id. § 1111(a). Section 1112 similarly provides criminal sanctions for "manslaughter," and states that "[m]anslaughter is the unlawful killing of a human being without malice." Id. § 1112. Section 1113 provides criminal penalties for "attempts to commit murder or manslaughter." Id. § 1113. It is therefore clear that section 1119(b) bars only "unlawful killings."^[7]

This limitation on section 1119(b)'s scope is significant, as the legislative history to the underlying offenses that the section incorporates makes clear. The provisions section 1119(b) incorporates derive from sections 273 and 274 of the Act of March 4, 1909, ch. 321, 35 Stat. 1088, 1143. The 1909 Act codified and amended the penal laws of the United States. Section 273 of the enactment defined murder as "the unlawful killing of a human being with malice [126] aforethought," and section 274 defined manslaughter as "the unlawful killing of a human being without malice." 35 Stat. 1143.^[8] In 1948, Congress codified the federal murder and manslaughter provisions at sections 1111 and 1112 of title 18 and retained the definitions of murder and manslaughter in nearly identical form, seeAct of June 25, 1948, ch. 645, 62 Stat. 683, 756, including the references to "unlawful killing" that remain in the statutes today—references that track similar formulations in some state murder statutes.^[9]

As this legislative history indicates, guidance as to the meaning of what constitutes an "unlawful killing"-in sections 1111 and 1112—and thus for purposes of section 1119(b)—can be found in the historical understandings of murder and manslaughter. That history shows that states have long recognized justifications and excuses to statutes criminalizing "unlawful" killings.^[10] [127] One state court, for example, in construing that state's murder statute explained that "the word 'unlawful' is a term of art" that "connotes a homicide with the absence of factors of excuse or justification," People v. Frye, 7 Cal.App.4th 1148, 10 Cal.Rptr.2d 217, 221 (1992). That court further explained that the factors of excuse or justification in question include those that have traditionally been recognized, id. at 221 n. 2. Other authorities support the same conclusion. See, e.g., Mullaney v. Wilbur, 421 U.S. 684, 685, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975)(requirement of "unlawful" killing in Maine murder statute meant that killing was "neither justifiable nor excusable"); cf. also Rollin M. Perkins & Ronald N. Boyce, Criminal Law 56 (3d ed. 1982) ("Innocent homicide is of two kinds, (1) justifiable and (2) excusable.").^[11]Accordingly, section 1119 does not proscribe killings covered by a justification traditionally recognized, such as under the common law or state and federal murder statutes. See White, 51 F.Supp.2d at 1013 ("Congress did not intend [section 1119] to criminalize justifiable or excusable killings.").

B.

Here, we focus on the potential application of one such recognized justification—the justification of "public authority"—to the contemplated DoD and CIA operations. Before examining whether, on these facts, the public authority justification would apply to those operations, we first explain why section 1119(b) incorporates that particular justification.

The public authority justification, generally understood, is well-accepted, and it is clear it may be available even in cases where the particular criminal statute at issue does not expressly refer to a public authority justification.^[12] Prosecutions where such a "public authority" justification is invoked are understandably rare, [128] see American Law Institute, Model Penal Code and Commentaries § 3.03 Comment 1, at 24 (1985); cf. VISA Fraud Investigation, 8 Op. O.L.C. 284, 285 n. 2, 286 (1984), and thus there is little case law in which courts have analyzed the scope of the justification with respect to the conduct of government officials.^[13] Nonetheless, discussions in the leading treatises and in the Model Penal Code demonstrate its legitimacy. See 2 Wayne R. LaFave, Substantive Criminal Law § 10.2(b), at 135 (2d ed.2003); Perkins & Boyce, Criminal Law at 1093 ("Deeds which otherwise would be criminal, such as taking or destroying property, taking hold of a person by force and against his will, placing him in confinement, or even taking his life, are not crimes if done with proper public authority."); see also Model Penal Code § 3.03(I)(a), (d), (e), at 22–23 (proposing codification of justification where conduct is "required or authorized by," inter alia, "the law defining the duties or functions of a public officer ..."; "the law governing the armed services or the lawful conduct of war"; or "any other provision of law imposing a public duty"); National Comm'n on Reform of Federal Criminal Laws, A Proposed New Federal Criminal Code § 602(1) ("Conduct engaged in by a public servant in the course of his official duties is justified when it is required or authorized by law."). And this Office has invoked analogous rationales in several instances in which it has analyzed whether Congress intended a particular criminal statute to prohibit specific conduct that otherwise falls within a government agency's authorities.^[14]

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 kinds of governmental conduct that can be authorized by the Executive. Or, the legislature may enact a criminal prohibition in order to delimit the scope of the conduct that the legislature has otherwise authorized the Executive to undertake pursuant to another statute.^[15] But the recognition that a [129] 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. In some instances, therefore, the better view of a criminal prohibition may well be that Congress meant to distinguish those persons who are acting pursuant to public authority, at least in some circumstances, from those who are not, even if the statute by terms does not make that distinction express. Cf, Nardone v. United States, 302 U.S. 379, 384, 58 S.Ct. 275, 82 L.Ed. 314 (1937) (federal criminal statutes should be construed to exclude authorized conduct of public officers where such a reading "would work obvious absurdity as, for example, the application of a speed law to a policeman pursuing a criminal or the driver of a fire engine responding to an alarm").^[16]

Here, we consider a federal murder statute, but there is no general bar to applying the public authority justification to such a criminal prohibition. For example, with respect to prohibitions on the unlawful use of deadly force, the Model Penal Code recommended that legislatures should make the public authority (or "public duty") justification available, though only where the use of such force is covered by a more particular justification (such as defense of others or the use of deadly force by law enforcement), where the use of such force "is otherwise expressly authorized by law," or where such force "occurs in the lawful conduct of war." Model Penal Code § 3.03(2)(b), at 22; see also id. Comment 3, at 26. Some states proceeded to adopt the Model Penal Code recommendation.^[17] Other states, although not adopting that precise formulation, have enacted specific statutes dealing with the question of when public officials are justified in using-deadly force, which often prescribe that an officer acting in the performance of his official duties must reasonably have believed that such force was "necessary."^[18] Other states have more broadly provided that the public authority defense is available where the government officer engages in a "reasonable exercise" of his official functions.^[19] There is, however, no federal [130] statute that is analogous, and neither section 1119 nor any of the incorporated title 18 provisions setting forth the substantive elements of the section 1119(b) offense, provide any express guidance as to the existence or scope of this justification.

Against this background, we believe the touchstone for the analysis of whether section 1119 incorporates not only justifications generally, but also the public authority justification in particular, is the legislative intent underlying this criminal statute. We conclude that the statute should be read to exclude from its prohibitory scope killings that are encompassed by traditional justifications, which include the public authority justification. There are no indications that Congress had a contrary intention. Nothing in the text or legislative history of sections 1111–1113 of title 18 suggests that Congress intended to exclude the established public authority justification from those that Congress otherwise must be understood to have imported through the use of the modifier "unlawful" in those statutes (which, as we explain above, establish the substantive scope of section 1119(b)).^[20] Nor is there anything in the text or legislative history of section 1119 itself to suggest that Congress intended to abrogate or otherwise affect the availability under that statute of this traditional justification for killings. On the contrary, the relevant legislative materials indicate that in enacting section 1119 Congress was merely closing a gap in a field dealing with entirely different kinds of conduct than that at issue here.

The origin of section 1119 was a bill entitled the "Murder of United States Nationals Act of 1991," which Senator Thurmond introduced during the 102d Congress in response to the murder of an American in South Korea who had been teaching at a private school there.See 137 Cong. Rec. 8675–77 (1991) (statement of Sen, Thurmond), Shortly after the murder, another American teacher at the school accused a former colleague (who was also a U.S. citizen) of having committed the murder, and also confessed to helping the former colleague cover up the crime. The teacher who confessed was convicted in a South Korean court of destroying evidence and aiding the escape of a criminal suspect, but the individual she accused of murder had returned to the United States before the confession. Id. at 8675 The United States did not have an extradition treaty with South Korea that would have facilitated prosecution of the alleged murderer and therefore, under then-existing law, "the Federal Government ho[d] no jurisdiction to prosecute a person residing in the United States who ha[d] murdered an American abroad except in limited circumstances, such as a terrorist murder or the murder of a Federal official." Id.

To close the "loophole under Federal law which permits persons who murder Americans in certain foreign countries to go punished," id,the Thurmond bill would have added a new section to title 18 providing that "[w]hoever 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[131] sections 1111, 1112, and 1113 of this title." S. 861, 102d Cong. (1991) (incorporated in S. 1241, 102d Cong. §§ 3201–03 (1991)). The proposal also contained a separate provision amending the procedures for extradition "to provide the executive branch with the necessary authority, in the absence of an extradition treaty, to surrender to foreign governments those who commit violent crimes against U.S. nationals." 137 Cong. Rec. 8676 (1991) (statement of Sen. Thurmond) (discussing S. 861, 102d Cong., § 3).^[21] The Thurmond proposal was incorporated into an omnibus crime bill that both the House and Senate passed, but that bill did not become law.

In the 103d Congress, a revised version of the Thurmond bill was included as part of the Violent Crime Control and Law Enforcement Act of 1994. H.R. 3355 § 60009, 103d Cong. (1994). The new legislation differed from the previous bill in two key respects. First, it prescribed criminal jurisdiction only where both the perpetrator and the victim were U.S. nationals, whereas the original Thurmond bill would have extended jurisdiction to all instances in which the victim was a U.S. national (based on so-called "passive personality" jurisdiction^[22]). Second, the revised legislation did not include the separate provision from the earlier Thurmond legislation that would have amended the procedures for extradition. Congress enacted the revised legislation in 1994 as part of Public Law No. 103–322, and it was codified as section 1119 of title 18. See Pub.L. No. 103–322, § 60009, 108 Stat. 1796, 1972 (1994).

Thus, section 1119 was designed to close a jurisdictional loophole—exposed by a murder that had been committed abroad by a private individual—to ensure the possibility of prosecuting U.S. nationals who murdered other U.S. nationals in certain foreign countries that lacked the ability to lawfully secure the perpetrator's appearance at trial. This loophole had nothing to do with the conduct of an authorized military operation by U.S. armed forces or the sort of CIA counterterrorism operation contemplated here. Indeed, prior to the enactment of section 1119, the only federal statute expressly making it a crime to kill U.S. nationals abroad, at least outside the special and maritime jurisdiction of the United States, reflected what appears to have been a particular concern with protection of Americans from terrorist attacks' See 18 U.S.C. § 2332(a), (d) (criminalizing unlawful killings of U.S. nationals abroad where the Attorney General or his subordinate certifies that the "offense was intended to coerce, intimidate, or retaliate against a government or a civilian population").^[23] It therefore would be anomalous [132] to now read section 1119's closing of a limited jurisdictional gap as having been intended to jettison important applications of the established public authority justification, particularly in light of the statute's incorporation of substantive offenses codified in statutory provisions that from all indications were intended to incorporate recognized justifications and excuses.

It is true that here the target of the contemplated operations would be a U.S. citizen. But we do not believe al-Aulaqi's citizenship provides a basis for concluding that section 1119 would fail to incorporate the established public authority justification for a killing in this case. As we have explained, section 1119 incorporates the federal murder and manslaughter statutes, and thus its prohibition extends only to "unlawful" killings, 18 U.S.C. §§ 1111, 1112, a category that was intended to include, from all of the evidence of legislative intent we can find, only those killings that may not be permissible in light of traditional justifications for such action. At the time the predecessor versions of sections 1111 and 1112 were enacted, it was understood that killings undertaken in accord with the public authority justification were not "unlawful" because they were justified. There is no indication that, because section 1119(b) proscribes the unlawful killing abroad of U.S. nationals by U.S. nationals, it silently incorporated all justifications for killings except that public authority justification.

III.

Given that section 1119 incorporates the public authority justification, we must next analyze whether the contemplated Doll and CIA operations would be encompassed by that justification. In particular, we must analyze whether that justification would apply even though the target of the contemplated operations is a United States citizen. We conclude that it would—a conclusion that depends in part on our determination that each operation would accord with any potential constitutional protections of the United States citizen in these circumstances (see infra part VI). In reaching this conclusion, we do not address other cases or circumstances, involving different facts. Instead, we emphasize the sufficiency of the facts that have been represented to us here, without determining whether such facts would be necessary to the conclusion we reach.^[24]

A.

We begin with the contemplated DoD operation. We need not attempt here to identify the minimum conditions that might establish a public authority justification for that operation. In light of the combination of circumstances that we understand would be present, and which we describe below, we conclude that the justification would be available because the operation would constitute the "lawful conduct of war"—a well-established variant of the public authority justification.^[25]

[133] As one authority has explained by example, "if a soldier intentionally kills an enemy combatant in time of war and within the rules of warfare, he is not guilty of murder," whereas, for example, if that soldier intentionally kills a prisoner of war—a violation of the laws of war—"then he commits murder." 2 LaFave, Substantive Criminal Law § 10.2(c), at 136; see also State v. Gut, 13 Minn. 341, 357 (1868)("That it is legal to kill an alien enemy in the heat and exercise of war, is undeniable; but to kill such an enemy after he laid down his arms, and especially when he is confined in prison, is murder."); Perkins & Boyce, Criminal Law at 1093 ("Even in time of war an alien enemy may not be killed needlessly after he has been disarmed and securely imprisoned").^[26] Moreover, without invoking the public authority justification by terms, our Office has relied on the same notion in an opinion addressing the intended scope of a federal criminal statute that concerned the use of possibly lethal force. See United States Assistance to Countries that Shoot Down Civil Aircraft Involved in Drug Trafficking, 18 Op. O.L.C. 148, 164 (1994) ("Shoot Down Opinion ") (concluding that the Aircraft Sabotage Act of 1984,18 U.S.C. § 32(b)(2), which prohibits the willful destruction of a civil aircraft and otherwise applies to U.S. government conduct, should not be construed to have "the surprising and almost certainly unintended effect of criminalizing actions by military personnel that are lawful under international law and the laws of armed conflict").

In applying this variant of the public authority justification to the contemplated DoD operation, we note as an initial matter that DoD would undertake the operation pursuant to Executive war pOWers that Congress has expressly authorized. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J., concurring) ("When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate." [134] ). By authorizing the use of force against "organizations" that planned, authorized, and committed the September 11th attacks, Congress clearly authorized the President's use of "necessary and appropriate" force against al-Qaida forces, because al-Qaida carried out the September 11th attacks. See Authorization for Use of Military Force ("AUMF"), Pub.L. No. 107–40, 115 Stat. 224, § 2(a) (2001) (providing that the President may "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons,").^[27] And, as we have explained, supra at 9, a decision-maker could reasonably conclude that this leader of AQAP forces is part of al-Qaida forces. Alternatively, and as we have further explained, supra at 10 n. 5, the AUMF applies with respect to forces "associated with" al-Qaida that are engaged in hostilities against the U.S. or its coalition partners, and a decision-maker could reasonably conclude that the AQAP forces of which al-Aulaqi is a leader are "associated with" al Qaida forces for purposes of the AUMF. On either view, DoD would carry out its contemplated operation against a leader of an organization that is within the scope of the AUMF, and therefore DoD would in that respect be operating in accord with a grant of statutory authority.

Based upon the facts represented to us, moreover, the target of the contemplated operation has engaged in conduct as part of that organization that brings him within the scope of the AUMF. High-level government officials have concluded, on the basis of al-Aulaqi's activities in Yemen, that al-Aulaqi is a leader of AQAP whose activities in Yemen pose a "continued and imminent threat" of violence to United States persons and interests. Indeed, the facts represented to us indicate that al-Aulaqi has been involved, through his operational and leadership roles within AQAP, in an abortive attack within the United States and continues to plot attacks intended to kill Americans from his base of operations in Yemen. The contemplated DoD operation, therefore, would be carried out against someone who is within the core of individuals against whom Congress has authorized the use of necessary and appropriate force.^[28]

[135] Al–Aulaqi is a United States citizen, however, and so we must also consider whether his citizenship precludes the AUMF from serving as the source of lawful authority for the contemplated DoD operation. There is no precedent directly addressing the question in circumstances such as those present here; but the Supreme Court has recognized that, because military detention of enemy forces is "by 'universal agreement and practice,' [an] 'important incident [ ] of war,' " Hamdi v. Rumsfeld, 542 U.S. 507, 518, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion) (quoting Ex parte Quirin, 317 U.S. 1, 28, 30, 63 S.Ct. 2, 87 L.Ed. 3 (1942)), the AUMF authorized the President to detain a member of Taliban forces who was captured abroad in an armed conflict against the United States on a traditional battlefield. See id. at 517–19, 124 S.Ct. 2633 (plurality opinion).^[29] In [136] addition, the Court held in Hamdi that this authorization applied even though the Taliban member in question was a U.S. citizen. Id. at 519–24, 124 S.Ct. 2633; see also Quirin,317 U.S. at 37–38, 63 S.Ct. 2 ("[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter [the United States] bent on hostile acts," may be treated as "enemy belligerents" under the law of war). Furthermore, lower federal courts have relied upon Hamdi to conclude that the AUMF authorizes DoD to detain individuals who are part of al-Qaida even if they are apprehended and transferred to U.S. custody while not on a traditional battlefield. See, e.g., Bensayah v. Obama, 610 F.3d 718, 720–21, 724–25, 727 (D.C.Cir. June 28, 2010) (concluding that the Department of Defense could detain an individual turned over to the U.S. in Bosnia if it demonstrates he was part of al-Qaida); Al–Adahi v. Obama, 613 F.3d 1102 (D.C.Cir.2010) (DoD has authority under AUMF to detain individual apprehended by Pakistani authorities in Pakistan and then transferred to U.S.); Anam v. Obama, 696 F.Supp.2d 1 (D.D.C.2010) (same); Razak Ali v. Obama, 2009 WL 4030864 (D.D.C.2009)(same); Sliti v. Bush, 592 F.Supp.2d 46 (D.D.C.2008) (same).

In light of these precedents, we believe the AUMF's authority to use lethal force abroad also may apply in appropriate circumstances to a United States citizen who is part of the forces of an enemy organization within the scope of the force authorization. The use of lethal force against such enemy forces, like military detention, is an " 'important incident of war,' " Hamdi, 542 U.S. at 518, 124 S.Ct. 2633(plurality opinion) (quotation omitted). See, e.g., General Orders No. 100: Instructions for the Government of Armies of the Untied States in the Field 15 (Apr. 24, 1863) (the "Lieber Code") ("[m]ilitary necessity admits of all direct destruction of life or limb of armed enemies"); International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 Aug, 1999 and Relating to the Protection of Victims of Non–International Armed Conflicts (Additional Protocol II ) § 4789 (1987); Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict 94 (2004) ( "Conduct of Hostilities ") ("When a person takes up arms or merely dons a uniform as a member of the armed forces, he automatically exposes himself to enemy attack."). And thus, just as the AUMF authorizes the military detention of a U.S. citizen captured abroad who is part of an armed force within the scope of the AUMF, it also authorizes the use of "necessary and appropriate" lethal force against a U.S. citizen who has joined such an armed force. Moreover, as we explain further in Part VI, DoD would conduct the operation in a manner that would not violate any possible constitutional protections that al-Aulaqi enjoys by reason of his citizenship. Accordingly, we do not believe al-Aulaqi's citizenship provides a basis for concluding that he is immune from a use of force abroad that the AUMF otherwise authorizes.

In determining whether the contemplated DoD operation would constitute the "lawful conduct of war," LaFave, Substantive Criminal Law§ 10.2(c), at 136, we next consider whether that operation would comply with the international law rules to which it would be subject—a question that also bears on whether the operation would be authorized by the AUMF. See Response for Petition for Rehearing and Rehearing En Banc, Al Bihani v. Obama, No. 09–5051 at 7 (D.C.Cir. May [137] 13, 2010) (AUMF "should be construed, if possible, as consistent with international law") (citing Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804) ("an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains")); see also F. Hoffman–La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164, 124 S.Ct. 2359, 159 L.Ed.2d 226 (2004) (customary international law is "law that (we must assume) Congress ordinarily seeks to follow"). Based on the combination of facts presented to us, we conclude that DoD would carry out-its operation as part of the non-international armed conflict between the United States and al-Qaida, and thus that on those facts the operation would comply with international law so long as DoD would conduct it in accord with the applicable laws of war that govern targeting in such a conflict.

In Hamdan v. Rumsfeld, the Supreme Court held that the United States is engaged in a non-international armed conflict with al-Qaida.548 U.S. 557, 628–31, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006). In so holding, the Court rejected the argument that non-international armed conflicts are limited to civil wars and other internal conflicts between a state and an internal non-state armed group that are confined to the territory of the state itself; it held instead that a conflict between a transnational non-state actor and a nation, occurring outside that nation's territory, is an armed conflict "not of an international character" (quoting Common Article 3 of the Geneva Conventions) because it is not a "clash between nations." Id. at 630, 126 S.Ct. 2749.

Here, unlike in Hamdan, the contemplated DoD operation would occur in Yemen, a location that is far from the most active theater of combat between the United States and al-Qaida. That does not affect our conclusion, however, that the combination of facts present here would make the DoD operation in Yemen part of the non-international armed conflict with al-Qaida.^[30] To be sure, Hamdan did not directly address the geographic scope of the noninternational armed conflict between the United States and al-Qaida that the Court recognized, other than to implicitly hold that it extended to Afghanistan, where Hamdan was apprehended. See 548 U.S. at 566, 126 S.Ct. 2749; see also id at 641–42, 126 S.Ct. 2749 (Kennedy, J., concurring in part) (referring to Common Article 3 as "applicable to our Nation's armed conflict with al Qaeda in Afghanistan"). The Court did, however, specifically reject the argument that non-international armed conflicts are necessarily limited to internal conflicts. The Common Article 3 term "conflict not of an international character," the Court explained, bears its "literal meaning"—namely, that it is a conflict that "does not involve a clash between nations." Id. at 630, 126 S.Ct. 2749 (majority opinion). The Court referenced the statement in the 1949 ICRC Commentary on the Additional Protocols to the Geneva Conventions that a non-international armed conflict " 'is distinct from an international armed conflict because of the legal status of the entities opposing each other,' " id. at 631, 126 S.Ct. 2749 (emphasis added). The Court explained that this interpretation—that the nature of the conflict depends at least in part on the status of the parties, rather than simply on the locations in which they fight—in turn accords with the [138] view expressed in the commentaries to the Geneva Conventions that "the scope of application" of Common Article 3, which establishes basic protections that govern conflicts not of an international character, "must be as wide as possible." Id.^[31]

Invoking the principle that for purposes of international law an armed conflict generally exists only when there is "protracted armed violence between governmental authorities and armed groups," Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction,Prosecutor v. Tadic, Case No. IT–94–1AR72, ¶ 70 (ICTY App. Chamber Oct. 2, 1995) ("Tadic Jurisdictional Decision "), some commentators have suggested that the conflict between the United States and al-Qaida cannot extend to nations outside Afghanistan in which the level of hostilities is less intense or prolonged than in Afghanistan itself. See, e.g., Mary Ellen O'Connell, Combatants and the Combat Zone, 43 U. Rich. L.Rev. 845, 857–59 (2009); see also Philip Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions ¶ 54, at 18 (United Nations Human Rights Council, Fourteenth Session, Agenda Item 3, May 28, 2010) (acknowledging that a non-international armed conflict can be transnational and "often does" exist "across State borders," but explaining that the duration and intensity of attacks in a particular nation is also among the "cumulative factors that must be considered for the objective existence of an armed conflict"). There is little judicial or other authoritative, precedent that speaks directly to the question of the geographic scope of a non-international armed conflict in which one of the parties is a transnational, non-state actor and where the principal theater of operations is not within the territory of the nation that is a party to the conflict. Thus, in considering this issue, we must look to principles and statements from analogous contexts, recognizing that they were articulated without consideration of the particular factual circumstances of the sort of conflict at issue here.

In looking for such guidance, we have not come across any authority for the proposition that when one of the parties to an armed conflict plans and executes operations from a base in a new nation, an operation to engage the enemy in that location can never be part of the original armed conflict—and thus subject to the laws of war governing that conflict—unless and until the hostilities become sufficiently intensive and protracted within that new location. That does not appear to be the rule, or the historical practice, for instance,[139] in a traditional international conflict. See John R. Stevenson, Legal Adviser, Department of State, United States Military Action in Cambodia. Questions of International Law (address before the Harnrnarskjold Forum of the Association of the Bar of the City of New York, May 28, 1970), in 3 The Vietnam War and International Law: The Widening Context 23, 28–30 (Richard A. Falk, ed.1972) (arguing that in an international armed conflict, if a neutral state has been unable for any reason to prevent violations of its neutrality by the troops of one belligerent using its territory as a base of operations, the other belligerent has historically been justified in attacking those enemy forces in that state). Nor do we see any obvious reason why that more categorical, nation-specific rule should govern in analogous circumstances in this sort of non-international armed conflict.^[32] Rather, we think the determination of whether a particular operation would be part of an ongoing armed conflict for purposes of international law requires consideration of the particular facts and circumstances present in each case. Such an inquiry may be particularly appropriate in a conflict of the sort here, given that the parties to it include transnational non-state organizations that are dispersed and that thus may have no single site serving as their base of operations.^[33]

We also find some support for this view in an argument the United States made to the International Criminal Tribunal for Yugoslavia (ICTY) in 1995. To be sure, the United States was there confronting a question, and a conflict, quite distinct from those we address here. Nonetheless, in that case the United States argued that in determining which body of humanitarian law applies in a particular conflict, "the conflict must be considered as a whole," and that "it is artificial and improper to attempt to divide it into isolated segments, either geographically or chronologically, in an attempt to exclude the application of [the relevant] rules." Submission of the Government of the United States of America Concerning Certain Arguments Made by Counsel for the Accused in the Case of The Prosecutor of the Tribunal v. Dusan Tadic, Case No. IT–94–1AR72 (ICTY App. Chamber) at 27–28 (July 1995) ("U.S. Tadic Submission"). Likewise, the court in Tadic—although not addressing a conflict that was transnational in the way the U.S. conflict with al-Qaida is—also concluded that although "the definition of 'armed conflict' varies depending on whether the hostilities are international or internal ... the scope of both internal and international armed conflicts extends beyond the exact time and place of hostilities." Tadic Jurisdictional Decision ¶ 67 (emphasis added); see also International Committee of the Red Cross, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts 18 (2003) (asserting that in order to assess whether an armed conflict exists it is necessary to determine "whether the totality of the violence taking place between states and transnational networks can be deemed to be armed conflict [140] in the legal sense"). Although the basic approach that the United States proposed in Tadic, and that the ICTY may be understood to have endorsed, was advanced without the current conflict between the U.S. and al-Qaida in view, that approach reflected a concern with ensuring that the laws of war, and the limitations on the use of force they establish, should be given an appropriate application.^[34]And that same consideration, reflected in Hamdan itself; see supra at 24, suggests a further reason for skepticism about an approach that would categorically deny that an operation is part of an armed conflict absent a specified level and intensity of hostilities in the particular location where it occurs.

For present purposes, in applying the more context-specific approach to determining whether an operation would take place within the scope of a particular armed conflict, it is sufficient that the facts as they have been represented to us here, in combination, support the judgment that DoD's operation in Yemen would be conducted as part of the non-international armed conflict between the United States and al-Qaida. Specifically, DoD proposes to target a leader of AQAP, an organized enemy force^[35] that is either a component of al-Qaida or that is a co-belligerent of that central party to the conflict and engaged in hostilities against the United States as part of the same comprehensive armed conflict, in league with the principal enemy. See supra at 9–10 & n. 5. Moreover, DoD would conduct the operation in Yemen, where, according to-the facts related to us, AQAP has a significant and organized presence, and from which AQAP is conducting terrorist training in an organized manner and has executed and is planning to execute attacks against the United States.Finally, the targeted individual himself, on behalf of that force, is continuously planning attacks from that Yemeni base of operations against the United States, as the conflict with al-Qaida continues. See supra at 7–9. Taken together, these facts support the conclusion that the DoD operation would be part of the non-international armed conflict the Court recognized in Hamdan.^[36]

[141] There remains the question whether DoD would conduct its operation in accord with the rules governing targeting in a non-international armed conflict—namely, international humanitarian law, commonly known as the laws of war. See Dinstein, Conduct of Hostilities at 17 (international humanitarian law "takes a middle road, allowing belligerent States much leeway (in keeping with the demands of military necessity) and yet circumscribing their freedom of action (in the name of humanitarianism")).^[37] The 1949 Geneva Conventions [142] to which the United States is a party do not themselves directly impose extensive restrictions on the conduct of a non-international armed conflict—with the principal exception of Common Article 3, see Hamdan, 548 U.S. at 630–31, 126 S.Ct. 2749. But the norms specifically described in those treaties "are not exclusive, and the laws and customs of war also impose limitations on the conduct of participants in non-international armed conflict." U.S. Tadic Submission at 33 n. 53; see also, e.g., Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, Preamble ("Hague Convention (IV)"), 36 Stat. 2277, 2280 (in cases "not included" under the treaty, "the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages among civilized peoples, from the laws of humanity, and the dictates of the public conscience").

In particular, the "fundamental rules" and "intransgressible principles of international customary law," Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons IT 79, 1996 I.C.J. 226, 257 ("Nuclear Weapons Advisory Opinion"), which apply to all armed conflicts, include the "four fundamental principles that are inherent to all targeting decisions"—namely, military necessity, humanity (the avoidance of unnecessary suffering), proportionality, and distinction. United States Air Force, Targeting, Air Force Doctrine Document 2–1.9, at 88 (June 8, 2006); see also generally id. at 88–92; Dinstein, Conduct of Hostilities at 16–20, 115–16, 119–23. Such fundamental rules also include those listed in the annex to the Fourth Hague Convention, see Nuclear Weapons Advisory Opinion ¶ 80, at 258, article 23 of which makes it "especially forbidden" to, inter alia, kill or wound treacherously, refuse. surrender, declare a denial of quarter, or cause unnecessary suffering, 36 Stat. at 2301–02.

DoD represents that it would conduct its operation against al-Aulaqi in compliance with these fundamental law-of-war norms. SeeChairman of the Joint Chiefs of Staff, Instruction 5810.01D, Implementation of the DoD Law of War Program ¶ 14.a, at 1 (Apr. 30, 2010) ("It is DOD policy that ... [m]embers of the DOD Components comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations."). In particular, the targeted nature of the operation would help to ensure that it would comply with the principle of distinction, and DoD has represented to us that it would make every effort to minimize civilian casualties and that the officer who launches the ordnance would be required to abort a strike if he or she concludes that civilian casualties will be disproportionate or that such a strike will in any other respect violate the laws of war. See DoD May 18 Memorandum for OLC, at 1 ("Any official in the chain of command has the authority and duty to abort" a strike "if he or she concludes that civilian casualties will be disproportionate or that such a strike will otherwise violate the laws of war.").

Moreover, although DoD would specifically target al-Aularli, and would do so without advance warning, such characteristics of the contemplated operation would not violate the laws of war and, in particular, would not cause the operation to violate the prohibitions on treachery and perfidy—which are addressed to conduct involving a breach of confidence by the assailant. See, e.g., Hague Convention IV, Annex, art. 23(b), 36 Stat. at 2301–02 ("[I]t is especially forbidden ... to kill or wound treacherously individuals belonging to the hostile nation or army"); cf. also Protocol Additional to the Geneva [143] Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, art. 37(1) (prohibiting the killing, injuring or capture of an adversary in an international armed conflict by resort to acts "inviting the confidence of [the] adversary ... with intent to betray that confidence," including feigning a desire to negotiate under truce or flag of surrender; feigning incapacitation; and feigning noncombatant status).^[38] Those prohibitions do not categorically preclude the use of stealth or surprise, nor forbid military attacks on identified, individual soldiers or officers, see U.S. Army Field Manual 27—10, 31 (1956) (article 23(b) of the Annex to the Hague Convention IV does not "preclude attacks on individual soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, or else-where"), and we are not aware of any other law-of-war grounds precluding the use of such tactics. See Dinstein, Conduct of Hostilities at 94–95, 199; Abraham D. Sofaer, Terrorism, The Law, and the National Defense, 126 Mil. L.Rev. 89, 120–21 (1989).^[39] Relatedly, "there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict—such as pilotless aircraft or so-called smart bombs—as long as they are employed in conformity with applicable laws of war." Koh, The Obama Administration and International Law. DOD also informs us that if al-Aulaqi offers to surrender, DoD would accept such an offer.^[40]

In light of all these circumstances, we believe DoD's contemplated operation against al-Aulaqi would comply with international law, including the laws of war applicable to this armed conflict, and would fall within Congress's authorization to use "necessary and appropriate force" against al-Qaida. In consequence, the operation should be understood to constitute the lawful conduct of war and thus to be encompassed by the public authority justification. Accordingly, the contemplated attack, if conducted by DoD in the mariner described, would not result in an "unlawful" killing and thus would not violate section 1119(b).

[144] B.

We next consider whether the CIA's contemplated operation against al-Aulaqi in Yemen would be covered by the public authority justification. We conclude that it would be; and thus that operation, too, would not result in an "unlawful" killing prohibited by section 1119. As with our analysis of the contemplated DoD operation, we rely on the sufficiency of the particular factual circumstances of the CIA operation as they have been represented to us, without determining that the presence of those specific circumstances would be necessary to the conclusion we reach.

We explain in Part VI why the Constitution would impose no bar to the CIA's contemplated operation under these circumstances, based on the facts as they have been represented to us. There thus remains the question whether that operation would violate any statutory restrictions, which in turn requires us to consider whether 18 U.S.C. § 1119 would apply to the contemplated CIA operation.^[42] Based on the combination of circumstances that we understand would be present, we conclude that the public authority justification thatsection 1119 incorporates—and that would prevent the contemplated DoD operation from violating section 1119(b)—would also encompass the contemplated CIA operation.^[43]

Specifically, we understand that the CIA, like DoD, would carry out the attack against an operational leader of an enemiforce, as Dart of the United States's ongoing non-international armed conflict with al-Qaida.

[redacted] the CIA—would conduct the operation in a manner that accords with the rules of international humanitarian law governing this armed conflict, and in circumstances See supra at 10–11.^[44]

[145] Nothing in the text or legislative history of section 1119 indicates that Congress intended to criminalize such an operation. Section 1119 incorporates the traditional public authority justification, and did not impose any special limitation on the scope of that justification. As we have explained, supra at 17–19, the legislative history of that criminal prohibition revealed Congress's intent to close a jurisdictional loophole that would have hindered prosecutions of murders carried out by private persons abroad. It offers no indication that Congress intended to prohibit the targeting of an enemy leader during an armed conflict in a manner that would accord with the laws of war when performed by a duly authorized government agency. Nor does it indicate that Congress, in closing the identified loophole, meant to place a limitation on the CIA that would not apply to DoD.

Thus, we conclude that just as Congress did not intend section 1119 to bar the particular attack that DoD contemplates, neither did it intend to prohibit a virtually identical attack on the same target, in the same authorized conflict and in similar compliance with the laws of war, that the CIA would carry out in accord with [redacted]^[45]

[146] See also infra at 38–41 (explaining that the CIA operation under the circumstances described to us would comply with constitutional due process and the Fourth Amendment's "reasonableness" test for the use of deadly force).

Accordingly, we conclude that, just as the combination of circumstances present here supports the judgment that the public authority justification would apply to the contemplated operation by the armed forces, the combination of circumstances also supports the judgment that the CIA's operation, too, would be encompassed by that justification. The CIA's contemplated operation, therefore, would not result in an "unlawful" killing under section 1111 and thus would not violate section 1119.

IV.

For similar reasons, we conclude that the contemplated DoD and CIA operations would not violate another federal criminal statute dealing with "murder" abroad, 18 U.S.C. § 956(a). That law makes it a crime to conspire within the jurisdiction of the United States "to commit at any place outside the United States an act that would constitute the offense of murder, kidnapping, or maiming if committed in the special maritime and territorial jurisdiction of the United States" if any conspirator acts within the United States to effect any object of the conspiracy.[redacted]^[46]

Like section 1119(b), section 956(a) incorporates by reference the understanding of "murder" in section 1111 of title 18. For reasons we explained earlier in this opinion, see supra at 12–14, section 956(a) thus incorporates the traditional public authority justification thatsection 1111 recognizes. As we have further explained both the CIA and DoD operations, on the facts as they have been represented to us, would be covered by that justification. Nor do we believe that Congress's reference in section 956(a) to "the special maritime and territorial jurisdiction of the United States" reflects an intent to transform such a killing into a "murder" in these circumstances—notwithstanding that our analysis of the applicability of the public authority justification is limited for present purposes to operations conducted abroad. A contrary conclusion would require attributing to Congress the surprising intention of criminalizing through section 956(a) an otherwise lawful killing of an enemy leader that another statute specifically prohibiting the murder of U.S. nationals abroad does not prohibit.

The legislative history of section 956(a) further confirms our conclusion that that statute should not be so construed. When [147] the provision was first introduced in the Senate in 1995, its sponsors addressed and rejected the notion that the conspiracy prohibited by that section would apply to "duly authorized" actions undertaken on behalf of the federal government. Senator Biden introduced the provision at the behest of the President, as part of a larger package of anti-terrorism legislation. See 141 Cong. Rec. 4491 (1995) (statement of Sen. Biden). He explained that the provision was designed to "MO a void in the law," because section 956 at the time prohibited only U.S.-based conspiracies to commit certain property crimes abroad, and did not address crimes against persons. Id. at 4506. The amendment was designed to cover an offense "committed by terrorists" and was "intended to ensure that the government is able to punish those persons who use the United States as a base in which to plot such a crime to be carried out outside the jurisdiction of the United States." Id. Notably, the sponsors of the new legislation deliberately declined to place the new offense either within chapter 19 of title 18, which is devoted to "Conspiracy," or within chapter 51, which collects "Homicide" offenses (including those established in sections 1111, 1112, 1113 and 1119). Instead, as Senator Biden explained, "[s]ection 956 is contained in chapter 45 of title 18, United States Code, relating to interference with the foreign relations of the United States," and thus was intended to "cover [ ] those individuals who, without appropriate governmental authorization, engage in prohibited conduct that is harmful to the foreign relations of the United States." Id. at 4507. Because, as Senator Biden explained, the provision was designed, like other provisions of chapter 45, to prevent private interference with U.S. foreign relations, "[i]t is not intended to apply to duly authorized actions undertaken on behalf of the United States Government." Id.; see also 8 Op. O.L.C. 58 (1984) (concluding that section 5 of the Neutrality Act, 18 U.S.C. § 960, which is also in chapter 45 and which forbids the planning of, or participation in, military or naval expeditions to be carried on from the United States against a foreign state with which the United States is at peace, prohibits only persons acting in their private capacity from engaging in such conduct, and does not proscribe activities undertaken by government officials acting within the course and scope of their duties as United States officers). Senator Daschle expressed this same understanding when he introduced the identical provision in a different version of the anti-terrorism legislation a few months later. See 141 Cong. Rec. 11,960 (1995) (statement of Sen. Daschle). Congress enacted the new section 956(a) the following year, as part of the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104–132, tit. VII, § 704(a), 110 Stat. 1214, 1294–95 (1996). As far as we have been able to determine, the legislative history contains nothing to contradict the construction of.section 956(a) described by Senators Biden and Daschle.

Accordingly, we do not believe section 956(a) would prohibit the contemplated operations.

V.

We next consider the potential application of the War Crimes Act, 18 U.S.C. § 2441, which makes it a federal crime for a member of the Armed Forces or a national of the United States to "commit[ ] a war crime." Id. § 2441(a). Subsection 2441(c) defines a "war crime" for purposes of the statute to mean any conduct (i) that is defined as a grave breach in any of the Geneva Conventions (or any Geneva protocol to which the U.S. is a party); (ii) that is prohibited by four specified articles of the [148] Fourth Hague Convention of 1907; (iii) that is a "grave breach" of Common Article 3 of the Geneva Conventions (as defined elsewhere in section 2441) when committed "in the context of and in association with an armed conflict not of an international character"; or (iv) that is a willful killing or infliction of serious injury in violation of the 1996 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby–Traps and Other Devices. Of these, the only subsection potentially applicable here is that dealing with Common Article 3 of the Geneva Conventions.^[47]

In defining what conduct constitutes a "grave breach" of Common Article 3 for purposes of the War Crimes Act, subsection 2441(d) includes "murder," described in pertinent part as "[t]he act of a person who intentionally kills, or conspires or attempts to kill ... one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause." 18 U.S.C. § 2441(d)(1)(D). This language derives from Common Article 3(1) itself, which prohibits certain acts (including murder) against "[p]ersons. taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed 'hors de combat' by sickness, wounds, detention, or any other cause." See, e.g., Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955], art. 3(1), 6 U.S.T. 3316, 3318–20. Although Common Article 3 is most commonly applied with respect to persons within a belligerent party's control, such as detainees, the language of the article is not so limited—it protects all "[p]ersons taking no active part in the hostilities" in an armed conflict not of an international character.

Whatever might be the outer bounds of this category of covered persons, we do not think it could encompass al-Aulaqi. Common Article 3 does not alter the fundamental law-of-war principle concerning a belligerent party's right in an armed conflict to target individuals who are part of an enemy's armed forces. See supra at 23. The language of Common Article 3 "makes clear that members of such armed forces [of both the state and non-state parties to the conflict] ... are considered as 'taking no active part in the hostilities' only once they have disengaged from their fighting function ('have laid down their arms') or are placed hors de combat; mere suspension of combat is insufficient." International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law 28 (2009); cf also id. at 34 ("individuals whose continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities are assuming a continuous combat function," in which case they can be deemed to be members of a non-state armed group subject to continuous targeting); accord Gherebi v. Obama, 609 F.Supp.2d 43, 65 (D.D.C.2009) ("the fact that 'members of armed forces who have laid down their arms and those placed hors de combat' are not 'taking [an] active part in the hostilities' necessarily implies that 'members of armed forces' who have not surrendered or been incapacitated are [149] ' taking [an] active part in the hostilities' simply by virtue of their membership in those armed forces"); id. at 67 ("Common Article 3 is not a suicide pact; it does not provide a free pass for the members of an enemy's armed forces to go to or fro as they please so long as, for example, shots are not fired, bombs are not exploded, and places are not hijacked"). Al-Aulaqi, an active, high-level leader of an enemy force who is continually involved in planning and recruiting for terrorist attacks, can on that basis fairly be said to be taking "an active part in hostilities." Accordingly, targeting him in the circumstances posited to us would not violate Common Article 3 and therefore would not violate the War Crimes Act.

VI.

We conclude with a discussion of potential constitutional limitations on the contemplated operations due to al-Aulaqi's status as a U.S. citizen, elaborating upon the reasoning in our earlier memorandum discussing that issue. Although we have explained above why we believe that neither the DoD or CIA operation would violate sections 1119(b), 956(a) and 2441 of title 18 of the U.S.Code, the fact that al-Aulaqi is a United States citizen could raise distinct questions under the Constitution. As we explained in our earlier memorandum, Barron Memorandum at 5–7, we do not believe that al-Aulaqi's U.S. citizenship imposes constitutional limitations that would preclude the contemplated lethal, action under the facts represented to us by DoD, the CIA and the Intelligence Community.

Because al-Aulaqi is a U.S. citizen, the Fifth Amendment's Due Process Clause, as well as the Fourth Amendment, likely protects him in some respects even while he is abroad. See Reid v. Covert, 354 U.S. 1, 5–6, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (plurality opinion); United States v. Verdugo–Urquidez, 494 U.S 259, 269–70, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990); see also In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 157, 170 n. 7 (2d Cir.2008).

In Hamdi, a plurality of the Supreme Court used the Mathews v. Eldridge balancing test to analyze the Fifth Amendment due process rights of a U.S. citizen captured on the battlefield in Afghanistan and detained in the United States who wished to challenge the government's assertion that he was a part of enemy forces, explaining that "the process due in any given instance is determined by weighing 'the private interest that will be affected by the official action' against the Government's asserted interest, 'including the function involved' and the burdens the Government would face in providing greater process." 542 U.S. at 529, 124 S.Ct. 2633 (plurality opinion) (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)).

We believe similar reasoning supports the constitutionality of the contemplated operations here. As explained above, on the facts represented to us, a decision-maker could reasonably decide that the threat posed by al-Aulaqi's activities to United States persons is "continued" and "imminent"

In addition to the nature of the threat posed by al-Aulaqi's activities, both agencies here have represented that they intend to capture rather than target al-Aulaqi if feasible; yet we also understand that an operation by either agency to capture al-Aulaqi in Yemen would be infeasible at this time.

Cf., e.g., Public Committee Against Torture in Israel v. Government of Israel, HO 769/02 S 40, 46 LL.M. 375, 394 (Israel Supreme Court sitting as the High Court [150] of Justice, 2006) (although arrest, investigation and trial "might actually be particularly practical under the conditions of belligerent occupation, in which the army controls the area in which the operation takes place," such alternatives "are not means which can always be used," either because they are impossible or because they involve a great risk to the lives of soldiers).

Although in the "circumstances of war," as the Hamdi plurality observed, "the risk of erroneous deprivation of a citizen's liberty in the absence of sufficient process ... is very real," 542 U.S. at 530, 124 S.Ct. 2633, the plurality also recognized that "the realities of combat" render certain uses of force "necessary and appropriate," including against U.S. citizens who have become part of enemy forces—and that "due process analysis need not blink at those realities," id. at 531, 124 S.Ct. 2633. we conclude that at least where, as here, the target's activities pose a "continued and imminent threat of violence or death" to U.S. persons, "the highest officers in the Intelligence Community have reviewed the factual basis" for the lethal operation, and a capture operation would be infeasible—and where the CIA and DoD "continue to monitor whether changed circumstances would permit such an alternative," see also DoD May 18 Memorandum for OLC at 2—the "realities of combat" and the weight of the government's interest in using an authorized means of lethal force against this enemy are such that the Constitution would not require the government to provide further process to the U.S. person before using such force. Cf. Hamdi, 542 U.S. at 535, 124 S.Ct. 2633 (noting that Court "accord[s] the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of war, and ... the scope of that discretion necessarily is wide") (plurality opinion).

Similarly, assuming that the Fourth Amendment provides some protection to a U.S. person abroad who is part of al-Qaida and that the operations at issue here would result in a "seizure" within the meaning of that Amendment,

The Supreme Court has made clear that the constitutionality of a seizure is determined by "balanc[ing] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (internal quotation marks omitted); accord Scott v. Harris, 550 U.S. 372, 383, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Even in domestic law enforcement operations, the Court has noted that "[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force." Garner, 471 U.S. at 11, 105 S.Ct. 1694. Thus, "if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape and if, where feasible, some warning has been given." Id. at 11–12, 105 S.Ct. 1694.

The Fourth Amendment "reasonableness" test is situation-dependent. Cf. Scott, 550 U.S. at 382, 127 S.Ct. 1769 (Garner "did not establish a magical on/off switch that triggers rigid preconditions whenever an officer's actions constitute 'deadly force' "). What would constitute a reasonable use of lethal force for purposes of domestic law enforcement operations will be very different from what would be [151] reasonable in a situation like such as that at issue here. In the present circumstances, as we understand the facts, the U.S. citizen in question has gone overseas and become part of the forces of an enemy with which the United States is engaged in an armed conflict; that person is engaged in continual planning and direction of attacks upon U.S. persons from one of the enemy's overseas bases of operations; the U.S. government does not know precisely when such attacks will occur; and a capture operation would be infeasible. at least where high-level government officials have determined that a capture operation overseas is infeasible and that the targeted person is part of a dangerous enemy force and is engaged in activities that pose a continued and imminent threat to U.S. persons or interests the use of lethal force would not violate the Fourth Amendment. and thus that the intrusion on any Fourth Amendment interests would be outweighed by "the importance of the governmental interests [that] justify the intrusion," Garner, 471 U.S. at 8, 105 S.Ct. 1694, based on the facts that have been represented to us.

Please let us know if we can be of further assistance.

[1] This spelling, which we adopt (except in quotations), is used by the District Court and in the Government's brief. The briefs of N.Y. Times and ACLU and numerous documents in the record render the name "al-Aulaqi."

[2] The term was apparently coined by CIA, see Bassiouni v. CIA, 392 F.3d 244, 246 (7th Cir.2004), and the CIA's use of no number, no list responses to FOIA requests has been considered by district courts in the District of Columbia. SeeNational Security Counselors v. CIA, 898 F.Supp.2d 233, 284–85 (D.D.C.2012); Jarvik v. CIA, 741 F.Supp.2d 106, 123 (D.D.C.2010).

[3] The term derives from Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973).

[4] The term derives from the Hughes Glomar Explorer, a vessel built to recover a sunken Soviet submarine. See Phillippi v. CIA, 546 F.2d 1009, 1010–12 (D.C.Cir.1976). A Glomar response was first used in 1992 in a case challenging a Government agency's refusal to confirm or deny the existence of certain materials requested under FOIA, see Benavides v. DEA, 968 F.2d 1243, 1245 (D.C.Cir.1992).

[5] CIA made one exception to its request that OLC submit a Glomar response. Because CIA's involvement in the operation that resulted in the death of Osama bin Laden had been acknowledged and was not classified, the agency asserted that any OLC documents related to the agency's involvement in that operation would not be covered by a Glomar response, but added that there were no such documents.

[6] 1. All records created after September 11, 2001, pertaining to the legal basis in domestic, foreign, and international law upon which U.S. citizens can be subjected to targeted killings, whether using unmanned aerial vehicles ("UAVs" or "drones") or by other means.

2. All records created after September 11, 2001, pertaining to the process by which U.S. citizens can be designated for targeted killings, including who is authorized to make such determinations and what evidence is needed to support them.

3. All memoranda, opinions, drafts, correspondence, and other records produced by the OLC after September 11, 2001, pertaining to the legal basis in domestic, foreign, and international law upon which the targeted killing of Anwar al-Awlaki was authorized and upon which he was killed, including discussions of:

A. The reasons why domestic-law prohibitions on murder, assassination, and excessive use of force did not preclude the targeted killing of al-Awlaki;

B. The protection and requirements imposed by the Fifth Amendment Due Process Clause;

C. The reasons why International-law prohibitions on extrajudicial killing did not preclude the targeted killing of al-Awlaki;

D. The applicability (or non-applicability) of the Treason Clause to the decision whether to target al-Awlaki;

E. The legal basis authorizing the CIA, JSOC, or other U.S. Government entities to carry out the targeted killing of Anwar Al–Awlaki;

F. Any requirement for proving that al-Awlaki posed an imminent risk of harm to others, including an explanation of how to define imminence in this context; and

G. Any requirement that the U.S. Government first attempt to capture Al–Awlaki before killing him.

4. All documents and records pertaining to the factual basis for the targeted killing of Al–Awlaki, including:

A. Facts supporting a belief that al-Awlaki posed an imminent threat to the United States or United States interests;

B. Facts supporting a belief that al-Awlaki could not be captured or brought to justice using nonlethal means;

C. Facts indicating that there was a legal justification for killings persons other than al-Awlaki, including other U.S. citizens, while attempting to kill al-Awlaki himself;

D. Facts supporting the assertion that al-Awlaki was operationally involved in al Qaeda, rather than being involved merely in propaganda activities; and

E. Any other facts relevant to the decision to authorize and execute the targeted killings of al-Awlaki.

5. All documents and records pertaining to the factual basis for the killing of Samir Khan, including whether he was intentionally targeted, whether U.S. Government personnel were aware of his proximity to al-Awlaki at the time the missiles were launched at al-Awlaki's vehicle, whether the United States took measures to avoid Khan's death, and any other facts relevant to the decision to kill Khan or the failure to avoid causing his death.

6. All documents and records pertaining to the factual basis for the killing of Abdulrahman al-Awlaki, including whether he was intentionally targeted, whether U.S. Government personnel were aware of his presence when they launched a missile or missiles at his location, whether he was targeted on the basis of his kinship with Anwar al-Awlaki, whether the United States took measures to avoid his death, and any other factors relevant to the decision to kill him or the failure to avoid causing his death.

JA 252–53.

[7] Exemption 6, which is not in issue in this appeal, applies to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6) (2013).

[8] As a general rule, a FOIA decision is evaluated as of the time it was made and not at the time of a court's review. See, e.g., Bonner v. U.S. Dep't of State, 928 F.2d 1148, 1152 (D.C.Cir.1991) ("To require an agency to adjust or modify its FOIA responses based on post-response occurrences could create an endless cycle of judicially mandated reprocessing."). On this basis, the Government argues that we cannot consider any official disclosures made after the District Court's opinion.

We disagree. Although we are not required to consider such evidence, the circumstances of this case support taking judicial notice of the statements here. See Fed.R.Evid. 201(b)(2). The Government's post-request disclosures "go[ ] to the heart of the contested issue," Powell v. U.S. Bureau of Prisons, 927 F.2d 1239, 1243 (D.C.Cir.1991) (internal quotation marks omitted), and, as discussed below, are inconsistent with some of its prior claims, including that the Government has never acknowledged CIA's operational involvement. Taking judicial notice of such statements is the same course taken by the Court of Appeals for the D.C. Circuit in its recent ACLU v. C.I.A. decision. 710 F.3d at 431. We conclude that it is the most sensible approach to ongoing disclosures by the Government made in the midst of FOIA litigation.

Moreover, the Government's request for an opportunity to submit new material concerning public disclosures made after the District Court's decision was honored by affording the Government an opportunity, after oral argument, to submit such material ex parte for in camera inspection, which the Government has done.

[9] The DOJ White Paper was leaked to Michael Isikoff, a reporter with NBC News, according to a report available at http://nbcnews.to/U1ZII 3; the text of the leaked document is available via a link at that website. (Hard copies of the documents available at this and all other websites cited in this opinion, as well as copies of videos available at websites cited in this opinion, to the extent they can be copied, have been docketed with the Clerk of Court for public reference.) The official disclosure, acknowledged by the Government, see Br. for Appellees at 25, was made by OIP on Feb. 4, 2013, in response to an FOIA request submitted by Truthout, according to a report available at http://www.truth-out. org/news/item/14585-targeted-killing-white-paperleaked-to-nbc-news-turned-over-totruthout-by-doj-in-response-to-asix-month-old-foia-request-four-dayslater; the text of the officially disclosed document is available via a link at that website and also at https://www.documentcloud. org/documents/602342-draft-white-paper.html. The document disclosed to Truthout is marked "draft"; the document leaked to Isikoff is not marked "draft" and is dated November 8, 2011. The texts of the two documents are identical, except that the document leaked to Isikoff is not dated and not marked "draft."

ACLU contends that DOJ did not release the DOJ White Paper in response to its FOIA request, nor list it on itsVaughn index. See Br. for ACLU at 21 n. 7. The Government responds that ACLU had narrowed its request to exclude "draft legal analyses," Letter from Eric A.O. Ruzicka to Sarah S. Normand (Apr. 3, 2012), and that the DOJ White Paper was part of document number 60 on the Vaughn index submitted by the Office of Legal Counsel as an attachment to a responsive e-mail. See Br. for Appellees at 25 n. 8. The OLC's Vaughn index describes document number 60 as "E-mail circulating draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens in certain circumstances, and discussion regarding interagency deliberations concerning the same" and invokes Exemption 5. Apparently, OLC expected ACLU to understand "circulating" to mean "attachment."

The Government offers no explanation as to why the identical text of the DOJ White Paper, not marked "draft," obtained by Isikoff, was not disclosed to ACLU, nor explain the discrepancy between the description of document number 60 and the title of the DOJ White Paper.

[10] The Holder Letter is available at http://www.justice. gov/ag/AGletter-5-22-13.pdf.

[11] The President's address is available via a link at http://wh. gov/hrTq.

[12] New York Times Co. v. U.S. Dep't of Justice, 872 F.Supp.2d 309, 312–13, 317–18 (S.D.N.Y.2012), ACLU v. Office of the Director of National Intelligence, No. 10 Civ. 4419, 2011 WL 5563520, at *8 (S.D.N.Y. Nov. 15, 2011), and Center for International Environmental Law v. Office of the U.S. Trade Representative, 505 F.Supp.2d 150, 154 (D.D.C.2007).

[13] We therefore need not consider the Appellants' claim that the legal analysis in the OLC–DOD Memorandum was not subject to classification.

[14] We have deleted classification codes from the caption and throughout the document.

[15] The statement was made in a response to a question from Senator Mike Lee. A webcast of the hearing is available via a link at http://www. judiciary.senate.gov/hearings/hearing.cfm?id=e0c4315749c10b084028087a4aa80a 73, at 1:51:30.

[16] The redactions made in this paragraph implement section 2(a) of our order of May 28, 2014.

[17] The Tonight Show transcript erroneously rendered this word "enemies," an error the Government acknowledged at oral argument.

[18] Although "the law will not infer official disclosure of information classified by the CIA from ... release of information by another agency, or even by Congress," Wilson, 586 F.3d at 186–87, these members of Congress have made public statements on this matter. Senator Feinstein has praised CIA for conducting drone strikes with less collateral damage than strikes conducted by the military. See "Senator Dianne Feinstein on Drones, Assault Weapons Ban," The Takeaway (Mar. 20, 2013), available at http:www.thetakeaway.org/story/276926-sen-diannefeinstein-drones-assaultweapons-ban/, at 2:00. Representative Rogers told CBS that his committee has overseen CIA's targeted killing strikes "even before they conducted that first strike that took [al-]Awlaki." Transcript, Face the Nation, CBS News (Feb. 10, 2013), available at http://www.cbsnews. com/news/facethe-nation-transcripts-february10-2013-graham-reed-androgers/4/.

[19] Although we conclude that the three-part test of Wilson has been satisfied, and Wilson remains the law of this Circuit, we note that a rigid application of it may not be warranted in view of its questionable provenance. Wilson took the test fromWolf v. CIA, 473 F.3d 370, 378 (D.C.Cir.2007), which took the test from Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C.Cir.1990). Fitzgibbon purported to find the test in Afshar v. Dep't of State, 702 F.2d 1125, 1133 (D.C.Cir.1983). The issue in Afshar was whether several books submitted to CIA for clearance contained official disclosure of details of CIA's relationship with SAVAK, Iran's intelligence service prior to 1979 and the existence of a CIA station in Tehran prior to 1979. Afshar rejected the claim of official disclosure for three reasons: (1) none of the books revealed a continuing relationship between CIA and SAVAK after 1963, the date of the earliest withheld document; (2) the books provided only a general outline of such a relationship; and (3) none of the books was an official and documented disclosure. The second reason was supported by a citation to Lamont v. Dep't of Justice, 475 F.Supp. 761, 772 (S.D.N.Y.1979), with a parenthetical stating that the withheld information must have "already been specifically revealed to the public" (emphasis in Afshar). Lamont did not assert specific revelation as a requirement for disclosure; it observed that the plaintiff had raised a factual issue as to whether the information sought had been specifically revealed. More important, Afshar, the ultimate source of the three-part test, does not mention a requirement that the information sought "match[es] the information previously disclosed."

Wilson also cited Hudson River Sloop Clearwater, Inc. v. Dep't of the Navy, 891 F.2d 414 (2d Cir.1989). Clearwateralso cited Fitzgibbon and Afshar and drew from those opinions more rigidity than was warranted. The issue inClearwater was simply whether the Navy had previously disclosed, as the plaintiff claimed, that it was planning to deploy nuclear weapons at the New York Harbor Homeport. The Court rejected the claim, pointing out that the Navy had said only that the ships to be stationed at the Homeport were capable of carrying nuclear weapons. See id. at 421.

[20] Other than the legal analysis in the documents considered in this section, it is unclear whether the Appellants are seeking on appeal any other withheld documents. See, e.g., Br. for ACLU at 50 ("Plaintiffs do not challenge the bulk of those withholdings."). In any event, except as to the OLC–DOD Memorandum discussed in Section III, above, the documents discussed in this Section IV, and the indices discussed in Section V, below, on the current record, we affirm the District Court's decision to withhold all other documents sought. After the Government submits its classified Vaughn indices on remand, the District Court may, as appropriate, order the release of any documents that are not properly withheld.

[21]

[22] For purposes of the issues on this appeal, it makes no difference whether the drones were maneuvered by CIA or DOD personnel so long as CIA has been disclosed as having some operational role in the drone strikes.

[23] This redaction implements section 2(a) of our order of May 28, 2014.

[24] Prior to filing, we have made this opinion available to the Government in camera to afford an opportunity to advise whether any classified information, not intended to be disclosed by this opinion, has been inadvertently disclosed.

[6] See also 18 U.S.C, § 1119(a) (providing that "national of the United States" has the meaning stated in section 101(aX22) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(22)).

[7] Section 1119 itself also expressly imposes various procedural limitations on prosecution. Subsection 1119(c)(1) requires that any prosecution be authorized in writing by the Attorney General, the Deputy Attorney General, or an-Assistant Attorney General, and precludes the approval of such an action "if prosecution has been previously undertaken by a foreign country for the same conduct." In addition, subsection I 119(c)(2) provides that "[n]o prosecution shall be approved under this section unless the Attorney General, in consultation with the Secretary of State, determines that the conduct took place in a country in which the person is no longer present, and the country lacks the ability to lawfully secure the person's return"—a determination that "is not subject to judicial review," id

[8] A 1908 joint congressional committee report on the Act explained that "[u]nder existing law [i.e., prior to the 1909 Act], there [had been] no statutory definition of the crimes of murder or manslaughter." Report by the Special Joint Comm. on the Revision of the Laws, Revision and Codification of the Laws, Etc., H.R.Rep. No. 2, 60th Cong. 1st Sess., at 12 (Jan. 6, 1908) ("Joint Committee Report"). We note, however, that the 1878 edition of the Revised Statutes did contain a definition for manslaughter (but not murder): "Every person who, within any of the places or upon any of the waters [within the exclusive jurisdiction of the United States] unlawfully and willfully, but without malice, strikes, stabs, wounds, or shoots at, otherwise injures another, of which striking, stabbing, wounding, shooting, or other injury such other person dies, either on land or sea, within or without the United States, is guilty of the crime of manslaughter." Revised Statutes § 5341 (1878 ed.) (quoted in United States v. Alexander, 471 F.2d 923, 944–45 n. 54 (D.C.Cir.1972)). With respect to murder, the 1908 report noted that the legislation "enlarges the common-law definition, and is similar in terms to the statutes defining murder in a large majority' of the States." Joint Committee Report at 24; see also Revision of the Penal Laws: Hearings on S. 2982 Before the Senate as a Whole, 60th Cong., 1st Sess. 1184, 1185 (1908) (statement of Senator Heyburn) (same). With respect to manslaughter, the report stated that "[w]hat is said with respect to [the murder provision] is true as to this section, manslaughter being defined and classified in laneuaee similar to that to be found in the statutes of a large majority of the States." Joint Committee Report at 24.

[9] See, e.g., Cal. Penal Code § 187(a) (West 2009) ("Murder is the unlawful killing of a human being, or a fetus, with malice aforethought."); Fla. Scat. § 782.04(1)(a) (West 2009) (including "unlawful killing of a human being" as an element of murder); Idaho Code Ann. § 18–4001 (West 2009) ("Murder is the unlawful killing of a human being"); Nev.Rev.Stat. Ann. § 200.010 (West 2008) (including "unlawful killing of a human being" as an element of murder); R.I. Gen. Laws § 11–23–1 (West 2008) ("The unlawful killing of a human being with malice aforethought is murder."); Tenn.Code Ann. § 39–13–201 (West 2009) ("Criminal homicide is the unlawful killing of another person"). Such statutes, in turn, reflect the view often expressed in the common law of murder that the crime requires an "unlawful" killing. See, e.g., Edward Coke, The Third Part of the Institutes of Laws of England 47 (London, W. Clarke & Sons 1809) ("Murder is when a man of sound meinory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum naturaunder the king's peace, with malice fore-thought, either expressed by the party, or implied by law, so as the party wounded, or hurt, & c. die of the wound, or hurt, & c. within a year and a day after the same."); 4 William Blackstone,Commentaries on the Laws of England 195 (Oxford 1769) (same); see also A Digest of Opinions of the Judge Advocates General of the Army 1074 n. 3 (1912) ("Murder, at common law, is the unlawful killing by a person of sound memory and discretion, of any reasonable creature in being and under the peace of the State, which malice aforethought either express or implied.") (internal quotation marks omitted).

[10] The same is true with respect to other statutes, including federal laws, that modify a prohibited act other than murder or manslaughter with the term "unlawfully." See, e.g., Territory v. Gonzales, 14 N.M. 31, 89 P. 250, 252 (N.M.Terr.1907)(construing the term "unlawful" in statute criminalizing assault with a deadly weapon as "clearly equivalent" to "without excuse or justification"). For example, 18 U.S.C. § 2339C makes it unlawful, inter alia, to "unlawfully and willfully provide[ ] or collect[ ] funds" with the intention that they be used (or knowledge they are to be used) to carry out an act that is an offense within certain specified treaties, or to engage in certain other terrorist acts. The legislative history of section 2339C makes clear that "[t]he term 'unlawfully' is intended to embody common law defenses." H.R.Rep. No. 107–307, at 12 (2001), 2002 U.S.C.C.A.N. 521. Similarly, the Uniform Code of Military Justice makes it unlawful for members of the armed forces to, "without justification or excuse, unlawfully kill[ ] a human being" under certain specified circumstances.10 U.S.C. § 918. Notwithstanding that the statute already expressly requires lack of justification or excuse, it is the longstanding view of the armed forces that "[k]illing a human being is unlawful " for purposes of this provision "when done without justification or excuse." Manual for Courts–Martial United States (2008 ed.), at IV–63, art. 118, comment (c)(1) (emphasis added).

[11] [missing text]

[12] Where a federal criminal statute incorporates the public authority justification, and the government conduct at issue is within the scope of that justification, there is no need to examine whether the criminal prohibition has been repealed, impliedly or otherwise, by some other statute that might potentially authorize the governmental conduct, including by the authorizing statute that might supply the predicate for the assertion of the public authority justification itself. Rather, in such cases, the criminal prohibition simply does not apply to the particular governmental conduct at issue in the first instance because Congress intended that prohibition to be qualified by the public authority justification that it incorporates. Conversely, where another statute expressly authorizes the government to engage in the specific conduct in question, then there would be no need to invoke the more general public authority justification doctrine, because in such a case the legislature itself has, in effect, carved out a specific exception permitting the executive to do what the legislature has otherwise generally forbidden. We do not address such a circumstance in this opinion.

[13] The question of a "public authority" justification is much more frequently litigated in cases where a private party charged with a crime interposes the defense that he relied upon authority that a public official allegedly conferred upon him to engage in the challenged conduct. See generally United States Attorneys' Manual tit. 9, Criminal Resource Manual § 2055 (describing and discussing three different such defenses of "governmental authority"); National Comm'n on Reform of Federal Criminal Laws, A Proposed New Federal Criminal Code § 602(2); Model Penal Code § 3.03(3)(b); see alsoUnited States v. Fulcher, 250 F.3d 244, 253 (4th Cir.2001); United States v. Rosenthal, 793 F.2d 1214, 1235–36 (11th Cir.1986); United States v. Duggan, 743 F.2d 59, 83–84 (2d Cir.1984); Fed.R.Crim.P. 12.3 (requiring defendant to notify government if he intends to invoke such a public authority defense). We do not address such cases in this memorandum, in which our discussion of the "public authority" justification is limited to the question of whether a particular criminal law applies to specific conduct undertaken by government agencies pursuant to their authorities.

[14] See, e.g., Memorandum for see also Visa Fraud Investigation, 8 Op. O.L.C. at 287–88 (concluding that civil statute prohibiting issuance of visa to an alien known to be ineligible did not prohibit State Department from issuing such a visa where "necessary" to facilitate important Immigration and Naturalization Service undercover operation carried out in a "reasonable" fashion).

[15] See, e.g., Nardone v. United States, 302 U.S. 379, 384, 58 S.Ct. 275, 82 L.Ed. 314 (1937) (government wiretapping was proscribed by federal statute);

[16] In accord with our prior precedents, each potentially applicable statute must be carefully and separately examined to discern Congress's intent in this respect—such as whether it imposes a less qualified limitation than section 1119imposes. See generally, e.g., United States Assistance to Countries that Shoot Down Civil Aircraft Involved in Drug Trafficking, 18 Op. O.L.C. 148 (1994); Application of Neutrality.Act to Official Government Activities, 8 Op. O.L.C. 58 (1984).

[17] See, e.g., Neb.Rev.Stat. § 28–1408(2)(b); Pa.C.S.A. § 504(b)(2); Tex. Penal Code tit. 2, § 9.21(c).

[18] See, e.g., Ariz.Rev.Stat. § 13–410.C; Maine Rev. Stat. Ann. tit. 17, § 102.2.

[19] See, e.g., Ala. Stat. § 13A–3–22; N.Y. Penal Law § 35.05(1); LaFave, Substantive Criminal Law § 10.2(b), at 135 n. 15;see also Robinson, Criminal Law Defenses § 149(a), at 215 (proposing that the defense should be available only if the actor engages in the authorized conduct "when and to the extent necessary to protect or further the interest protected or furthered by the grant of authority" and where it "is reasonable in relation to the gravity of the harms or evils threatened and the importance of the interests to be furthered by such exercise of authority"); id. § 149(c), at 218–20.

[20] In concluding that the use of the term "unlawful" supports the conclusion that section ¶ 19 incorporates the public authority justification, we do not mean to suggest that the absence of such a term would require a contrary conclusion regarding the intended application of a criminal statute to otherwise authorized government conduct in other cases. Each statute must be considered on its own terms to determine the relevant congressional intent. See supra note 16.1

[21] The Thurmond proposal also contained procedural limitations on prosecution virtually identical to those that Congress ultimately enacted and codified at 18 U.S.C. § 1119(c). See S. 861, 102d Cong. § 2.

[22] See Geoffrey R. Watson, The Passive Personality Principle, 28 Tex. Int'l L.J. I, 13 (1993); 137 Cong. Rec. 8677 (1991) (letter for Senator Ernest F. Hollings, from Janet G. Mullins, Assistant Secretary, Legislative Affairs, U.S. State Department (Dec. 26, 1989), submitted for the record during floor debate on the Thurmond bill) (S4752) ("The United States has generally taken the position that the exercise of extraterritorial criminal jurisdiction based solely on the nationality of the victim interferes unduly with the application of local law by local authorities.").

[23] Courts have interpreted other federal homicide statutes to apply extraterritorially despite the absence of an express provision for extraterritorial application. See, e.g., 18 U.S.C. § 1114 (criminalizing unlawful killings of federal officers and employees); United States v. Al Kassar, 582 F.Supp.2d 488, 497 (S.D.N.Y.2008) (construing 18 U.S.C. § 1114 to apply extraterritorially).

[24] In light of our conclusion that section 1119 and the statutes it cross-references incorporate this justification, and that the operations here would be covered by that justification, we need not and thus do not address whether other grounds might exist for concluding that the operations would be lawful.

[25] See. e.g., 2 Paul H. Robinson, Criminal Law Defenses § 148(a), at 208 (1984) (conduct that would violate a criminal statute is justified and thus not unlawful "Iwinere the exercise of military authority relies upon the law governing the armed forces or upon the conduct of war"); 2 LaFave, Substantive Criminal Law § 10.2(c), at 136 ("another aspect of the public duty defense is where the conduct was required or authorized by 'the law governing the armed services or the lawful conduct of war' ") (internal citation omitted); Perkins & Boyce, Criminal Law at 1093 (noting that a "typical instance[ ] in which even the extreme act of taking human life is done by public authority" involves "the killing of an enemy as an act of war and within the rules of war"); Frye, 10 Cal.Rptr.2d at 221 n. 2 (identifying "homicide done under a valid public authority, such as execution of a death sentence or killing an enemy in a time of war," as one example of a justifiable killing that would not be "unlawful" under the California statute describing murder as an "unlawful" killing); State v. Gut, 13 Minn. 341, 357 (1868) ("that it is legal to kill an alien enemy in the heat and exercise of war, is undeniable"); see alsoModel Penal Code § 3.03(2)(b) (proposing that criminal statutes expressly recognize a public authority justification for a killing that "occurs in the lawful conduct of war," notwithstanding the Code recommendation that the use of deadly force generally should be justified only if expressly prescribed by law); see also id. at 25 n. 7 (collecting–representative statutes reflecting this view enacted prior to Code's promulgation); 2 Robinson, Criminal Law Defenses § 148(b), at 210–11 nn. 8–9 (collecting post-Model Code state statutes expressly recognizing such a defense).

[26] Cf. Public Committee Against Torture in Israel v. Government of Israel, 11CJ 769/02 ¶ 19, 46 I.L.M. 375, 382 (Israel Supreme Court sitting as the High Court of Justice, 2006) ("When soldiers of the Israel Defense Forces act pursuant to the laws of aimed conflict, they are acting 'by law', and they have a good justification defense [to criminal culpability]. However, if they act contrary to the laws of armed conflict they may be, inter alia, criminally liable for their actions.");Calley v. Callaway, 519 F.2d 184, 193 (5th Cir.1975) ("an order to kill unresisting Vietnamese would be an illegal order, and ... if [the defendant] knew the order was illegal or should have known it was illegal, obedience to an order was not a legal defense").

[27] We emphasize this point not in order to suggest that statutes such as the AUMF have superseded or implicitly repealed or amended section 1119, but instead as one factor that helps to make particularly clear why the operation contemplated here would be covered by the public authority justification that section 1119 (and section 1111) itself incorporates.

[28] See Hamlily, 616 F.Supp.2d at 75 (construing AUMF to reach individuals who "function[ ] or participate[ ] within or under the command structure of [al–Qaida]"); Gherebi v. Obama, 609 F.Supp.2d 43, 68 (D.D.C.2009); see also al–Marri v. Pucciarelli, 534 F.3d 213, 325 (4th Cir.2008) (en banc) (Wilkinson, J., dissenting in part) (explaining that the ongoing hostilities against al-Qaida permit the Executive to use necessary and appropriate force under the AUMF against an "enemy combatant," a term Judge Wilkinson would have defined as a person who is (1) "a member of" (2) "an organization or nation against whom Congress has declared war or authorized the use of military force," and (3) who "knowingly plans or engages in conduct that harms or aims to harm persons or property for the purpose of furthering the military goals of the enemy nation or organization"), vacated and remanded sub nom. al–Marri v. Spagone, 555 U.S. 1220, 129 S.Ct. 1545, 173 L.Ed.2d 671 (2009); Government March 13th Guanuinamo Bay Detainee Brief at (arguing that AUMF authorizes detention of individuals who were "part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces").

Several of the Guantiniuno habeas petitioners, as well as some commentators, have argued that in a non-international conflict of this sort, the laws of war and/or the AUMF do not permit the United States to treat persons who are part of al-Qaida as analogous to members of an enemy's armed forces in a traditional international armed conflict, but that the United States instead must treat all such persons as civilians, which (they contend) would permit targeting those persons only when they are directly participating in hostilities. Cf also al–Marri, 534 F.3d at 237–47 (Mott, J. concurring in the judgment, and writing for four of nine judges) (arguing that the AUIVIT and the Constitution, as informed by the laws of war, do not permit military detention of an alien residing in the United States whom the government alleged was "closely associated with" al-Qaida, and that such individual must instead be treated as a civilian, because that person is not affiliated with the military arm of an enemy nation); Philip Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions 58, at 19 (United Nations Human Rights Council, Fourteenth Session, Agenda Item 3, May 28, 2010) ("Report of the Special Rapporteur") (reasoning that because "[u]nder the [international humanitarian law] applicable to non-international armed conflict, there is no such thing as a 'combatant' "—i.e., a non-state actor entitled to the combatant's privilege—it follows that "States are permitted to attack only civilians who 'directly participate in hostilities' "). Primarily for the reasons that Judge Walton comprehensively examined in the Gherebi case, see 609 F.Supp.2d at 62–69, we do not think this is the proper understanding of the laws of war in a non-international armed conflict, or of Congress's authorization under the AUMF.Cf. also International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law 28, 34 (2009) (even if an individual is otherwise a "citizen" for purposes of the laws of war, a member of a non-state armed group can be subject to targeting by virtue of having assumed a "continuous combat function" on behalf of that group); Alston, supra, ¶ 65, at 30–31 (acknowledging that under the ICRC view, if armed group members take on a continuous command function, they can be targeted anywhere and at any time); infra at 37–38 (explaining that al-Aulaqi is continually and "actively" participating in hostilities and thus not protected by Common Article 3 of the Geneva Conventions).

[29] See also Al Odah v. U.S., 611 F.3d 8, 9–10 (D.C.Cir.2010), and other D.C. Circuit cases cited therein (D.C.Cir.2010) (AUMF gives United States the authority to detain a person who is "part of" al-Qaida or Taliban forces); Hamlily, 616 F.Supp.2d at 74 (Bates, J.); Gherebi, 609 F.Supp.2d at 67 (Walton, J.); Mattan v. Obama, 618 F.Supp.2d 24, 26 (D.D.C.2009) (Lamberth, C.J.); Al Mutairi v. United States, 644 F.Supp.2d 78, 85 (D.D.C.2009) (Kollar–Kotelly, J,); Awad v. Obama, 646 F.Supp.2d 20, 23 (D.D.C.2009) (Robertson, J.); Anam v. Obama, 653 F.Supp.2d 62, 64 (D.D.C.2009)(Hogan, J.); Hatim v. Obama, 677 F.Supp.2d 1, 7 (D.D.C.2009) (Urbina, J.); Al–Adahi v. Obama, No. 05–280, 2009 WL 2584685 (D.D.C. Aug. 21, 2009) (Kessler, J.), rev'd on other grounds, 613 F.3d 1102 (D.C.Cir.2010).

[30] Our analysis is limited to the circumstances presented here, regarding the contemplated use of lethal force in Yemen. We do not address issues that a use of force in other locations might present. See also supra note 1.

[31] We think it is noteworthy that the AUMF itself does not set forth an express geographic limitation on the use of force it authorizes, and that nearly a decade after its enactment, none of the three branches of the United States Government has identified a strict geographical limit on the permissible scope of the authority the AUMF confers on the President with respect to this armed conflict. See, e.g., Letter from the President to the Speaker of the House of Representatives and the President Pro Tempore of the Senate (June 15, 2010) (reporting, "consistent with ... the War Powers Resolution," that the armed forces, with the assistance of numerous international partners, continue to conduct operations "against al-Qaida terrorists," and that the United States has "deployed combat–equipped forces to a number of locations in the U.S. Central ... Command area[ ] of operation in support of those [overseas counter-terrorist] operations"); Letter for the Speaker of the House of Representatives and the President Pro Tempore of the Senate, from President Barack Obama (Dec. 16, 2009) (similar); DoD May 18 Memorandum for OLC, at 2 (explaining that U.S. armed forces have conducted AQAP targets in Yemen since December 2009, and that DoD has reported such strikes to the appropriate congressional oversight committees).

[32] In the speech cited above, Legal Adviser Stevenson was referring to cases in which the government of the nation in question is unable to prevent violations of its neutrality by belligerent troops.

[33] The fact that the operation occurs in a new location might alter the way in which the military must apply the relevant principles of the laws of war—for example, requiring greater care in some locations in order to abide by the principles of distinction and proportionality that protect civilians from the use of military force. But that possible distinction should not affect the question of whether the laws of war govern the conflict in that new location in the first instance

[34] See also Geoffrey S. Corn & Eric Talbot Jensen, Untying the Gordian Knot: A Proposal for Determining Applicability of the Laws of War to the War on Terror, 81 Temp. L.Rev. 787, 799 (2008) ("If ... the ultimate purpose of the drafters of the Geneva Conventions was to prevent 'law avoidance' by developing de facto law triggers—a purpose consistent with the humanitarian foundation of the treaties—then the myopic focus on the geographic nature of an armed conflict in the context of transnational counterterrorist combat operations serves to frustrate that purpose."); cf. also Derek Jinks,September 11 and the Laws of War, 28 Yale J. Intl L. 1, 40–41 (2003) (arguing that if Common Article 3 applies to wholly internal conflicts, then it "applies a fortiori to armed conflicts with international or transnational dimensions," such as to the United States's armed conflict with al-Qaida).

[35] Cf. Prosecutor v. Haradnizaj, No IT–04–84–T 60 (ICTY Trial Chamber I, 2008) (an armed conflict can exist only between parties that are sufficiently organized to confront each other with military means—a condition that can be evaluated with respect to non-state groups by assessing "several indicative factors, none of which are, in themselves, essential to establish whether the 'organization' criterion is fulfilled," including, among other things, the existence of a command structure, and disciplinary rules and mechanisms within the group, the ability of the group to gain access to weapons, other military equipment, recruits and military training, and its ability to plan, coordinate, and carry out military operations).

[36] We note that the Department of Defense, which has a policy of compliance with the law of war "during all armed conflicts, however such conflicts are characterized, and in all other military operations," Chairman of the Joint Chiefs of Staff, Instruction 5810.01D, Implementation of the DoD Law of War Program ¶ 4.a, at 1 (Apr, 30, 2010) (emphasis added), has periodically used force—albeit in contexts different from a conflict such as this—in situations removed from "active battlefields," in response to imminent threats. See, e.g., Nat'l Comm'n on Terrorist Attacks Upon the United States, The 9/11 Commission Report 116–17 (2004) (describing 1998 cruise missile attack on al-Qaida encampments in Afghanistan following al-Qaida bombings of U.S. embassies in East Africa); W. Hays Parks, Memorandum of Law: Executive Order 12333 and Assassination, Army Lawyer, at 7 (Dep't of Army Pamphlet 27–50–204) (Dec.1989) ( "Assassination ") at 7 n. 8 (noting examples of uses of military force in "[s]elf defense against a continuing threat," including "the U.S. Navy air strike against Syrian military objections in Lebanon on 4 December 1983, following Syrian attacks on U.S. Navy F–14 TARPS flights supporting the multinational peacekeeping force in Beirut the preceding day," and "air strikes against terrorist-related targets in Libya on the evening of 15 April 1986"); see also id at 7 ("A national decision to employ military force in self defense against a legitimate terrorist or related threat would not be unlike the employment of force in response to a threat by conventional forces; only the nature of the threat has changed, rather than the international legal right of self defense. The terrorist organizations envisaged as appropriate to necessitate or warrant an armed response by U.S. forces are well-financed, highly-organized paramilitary structures engaged in the illegal use of force."); Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons ¶ 42, I996 I.C.J. 226, 245 ("Nuclear Weapons Advisory Opinion") (fundamental law-of-war norms are applicable even where military force might be employed outside the context of an armed conflict, such as when using powerful weapons in an act of national self-defense); cf. also 9/11 Commission Report at 116–17 (noting the Clinton Administration position—with respect to a presidential memorandum authorizing CIA assistance to an operation that could result in the killing of Usama Bin Ladin "if the CIA and the tribals judged that capture was not feasible"—that "under the law of armed conflict, killing a person who posed an imminent threat to the United States would be an act of self-defense, not an assassination"). As we explain below, DoD likewise would conduct the operation contemplated here in accord with the laws of war and would direct its lethal force against an individual whose activities have been determined to pose a "continued and imminent threat" to U.S. persons and interests.

[37] Cf. Nuclear Weapons Advisory Opinion ¶ 25, 1996 I.C.J. at 240 (explaining that the "test" of what constitutes an "arbitrary" taking of life under international human rights law, such as under article 6(1) of the International Covenant of Civil and Political Rights (ICCPR), must be determined by "the law applicable in armed conflict which is designed to regulate the conduct of hostilities," and "can only be decided by reference to the law applicable in armed conflict and not deduced from terms of the Covenant itself"); Written Statement of the Government of the United States of. America before the International Court of Justice, Re: Request by the United Nations General Assermbly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons at 44 (June 20, 1995) (ICCPR prohibition on arbitrary deprivation of life "was clearly understood by its drafters to exclude the lawful taking of human life," including killings "lawfully committed by the military in time of war"); Dinstein, Conduct of Hostilities at 23 (right to life under human rights law "does not protect persons from the ordinary consequences of hostilities"); cf also infra Part VI (explaining that the particular contemplated operations here would satisfy due process and Fourth Amendment standards because, inter alia, capturing al-Aulaqi is currently infeasible).

[38] Although the United States is not a party to the First Protocol, the State Department has announced that "we support the principle that individual combatants not kill, injure, or capture enemy personnel by resort to perfidy." Remarks of Michael J, Matheson, Deputy Legal Adviser, Department of State, The Sixth Annual American Red Cross–Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 Am. U.J. of Int'I L. & Pol'y 415, 425 (1987).(U)

[39] There is precedent for the United States targeting attacks against particular commanders. See, e.g., Patricia Zengel,Assassination and the Law of Armed Conflict, 134 Mil. L.Rev. 123, 136–37 (1991) (describing American warplanes' shoot-down during World War II of plane carrying Japanese Admiral Isoroku Yamamoto); see also Parks, Assassination, Army Lawyer at 5.

[40] See Geneva Conventions Common Article 3(1) (prohibiting "violence to life and person, in particular murder of all kinds," with respect to persons "taking no active part in the hostilities" in a non-international armed conflict, "including members of armed forces who have laid down their arms"); see also Hague Convention IV, Annex, art. 23(c), 37 Stat. at 2301–02 ("it is especially forbidden ... [t]o kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion"); id art. 23(d) (forbidding a declaration that no quarter will be given); 2 William Winthrop, Military Law and Precedents 788 (1920) ("The time has long passed when 'no quarter' was the rule on the battlefield, or when a prisoner could be put to death simply by virtue of his capture.").

[42] We address potential restrictions imposed by two other criminal laws—18 §§ 956(a) and 2441—in Parts IV and V of this opinion.

[43] We note, in addition, that the "lawful conduct of war" variant of the public authority justification, although often described with specific reference to operations conducted by the armed forces, is not necessarily limited to operations by such forces; some descriptions of that variant of the justification, for example, do not imply such a limitation. See, e.g., Frye, 10 Cal.Rptr.2d at 221 n. 2 ("homicide done under a valid public authority, such as execution of a death sentence or killing an enemy in a time of war"); Perkins & Boyce, Criminal Law at 1093 ("the killing of an enemy as an act of war and within the rules of war").

[44] If the killing by a member of the armed forces would comply with the law of war and otherwise be lawful, actions of CIA officials facilitating that killing should also not be unlawful. See, e.g., Shoot Down Opinion at 165 n. 33 ("[O]ne cannot be prosecuted for aiding and abetting the commission of an act that is not itself a crime.") (citing Shuttlesworth v. City of Birmingham, 373 U.S. 262, 83 S.Ct. 1130, 10 L.Ed.2d 335 (1963)).

Nor would the fact that CIA personnel would be involved in the operation itself cause the operation to violate the laws of war. It is true that CIA personnel, by virtue of their not being part of the armed forces, would not enjoy the immunity from prosecution under the domestic law of the countries in which they act for their conduct in targeting and killing enemy forces in compliance with the laws of war—an immunity that the armed forces enjoy by virtue of their status.See Report of the Special Rapporteur ¶ 71, at 22; see also Dinstein, Conduct of Hostilities, at 31. Nevertheless, lethal activities conducted in accord with the laws of war, and undertaken in the course of lawfully authorized hostilities, do not violate the laws of war by virtue of the fact that they are carried out in part by government actors who are not entitled to the combatant's privilege. The contrary view "arises ... from a fundamental confusion between acts punishable under international law and acts with respect to which international law affords no protection." Richard R. Baxter, So–Called "Unprivileged Belligerency" Spies, Guerillas, and Saboteurs, 28 Brit. Y.B. Int'l L. 323, 342 (1951) ("the law of nations has not ventured to require of states that they ... refrain from the use of secret agents or that these activities upon the part of their military forces or civilian population be punished"). Accord Yoram Dinstein, The Distinction Between Unlawful Combatants and War Criminals, in International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne 103–16 (Y. Dinstein ed., 1989);

Statements in the Supreme Court's decision in Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3 (1942), are sometimes cited for the contrary view. See, e.g., id. at 36 n. 12, 63 S.Ct. 2 (suggesting that passing through enemy lines in order to commit "any hostile act" while not in uniform "renders the offender liable to trial for violation of the laws of war"); id. at 31, 63 S.Ct. 2 (enemies who come secretly through the lines for purposes of waging war by destruction of life or property "without uniform" not only are "generally not to be entitled to the status of prisoners of war," but also "to be offenders against the law of war subject to trial and punishment by military tribunals"). Because the Court inQuirin focused on conduct taken behind enemy lines, it is not clear whether the Court in these passages intended to refer only to conduct that would constitute perfidy or treachery. To the extent the Court meant to suggest more broadly that any hostile acts performed by unprivileged belligerents are for that reason violations of the laws of war, the authorities the Court cited (the Lieber Code and Colonel Winthrop's military law treatise) do not provide clear support.See John C. Dehn, The Hamdan Case and the Application of a Municipal Offense, 7 J. Int'l Crim. J. 63, 73–79 (2009);see also Baxter, So–Called "Unprivileged Belligerency," 28 Brit. Y.B. Int'l L. at 339–40; Michael N. Schmitt,Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees, 5 Chi. J. Int'l L. 511, 521 n. 45 (2005); W. Hays Parks, Special Forces' Wear of Non–Standard Uniforms, 4 Chic. J. Int'l L. 493, 510–11 n. 31 (2003). We note in this regard that DoD's current Manual for Military Commissions does not endorse the view that the commission of an unprivileged belligerent act, without more, constitutes a violation of the international law of war. See Manual for Military Commissions, Part IV, § 5(13), Comment, at IV–11 (2010 ed., Apr. 27, 2010) (murder or infliction of serious bodily injury "committed while the accused did not meet the requirements of privileged belligerency" can be tried by a military commission "even if such conduct does not violate the international law of war").

[45] As one example, the Senate Report pointed to the Department of Justice's conclusion that the Neutrality Act, 18 U.S.C. § 960, prohibits conduct by private parties but is not applicable to the CIA and other government agencies. Id. The Senate Report assumed that the Department's conclusion about the Neutrality Act was premised on the assertion that in the case of government agencies, there is an "absence of the mens rea necessary to the offense." Id. In fact, however, this Office's conclusion about that Act was not based on questions of mens rea, but instead on a careful analysis demonstrating that Congress did not intend the Act, despite its words of general applicability, to apply to the activities of government officials acting within the course and scope of their duties as officers of the United States. See Application of Neutrality Act to Official Government Activities, 8 Op. O.L.C. 58 (1984).

[46] Cf. also VISA Fraud Investigation, 8 Op. O.L.C. at 287 (applying similar analysis in evaluating the effect of criminal prohibitions on certain otherwise authorized law enforcement operations, and explaining that courts have recognized it may be lawful for law enforcement agents to disregard otherwise applicable laws "when taking action that is necessary to attain the permissible law enforcement objective, when the action is carried out in a reasonable fashion"); id at 288 (concluding that issuance of an otherwise unlawful visa that was necessary for undercover operation to proceed, and done in circumstances—"for a limited purpose and under close supervision"—that were "reasonable," did not violate federal statute).

[47] The operations in question here would not involve conduct covered by the Land Mine Protocol. And the articles of the Geneva Conventions to which the United States is currently a party other than Common Article 3, as well as the relevant provisions of the Annex to the Fourth Hague Convention, apply by their terms only to armed conflicts between two or more of the parties to the Conventions. See, e.g., Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955], art. 2, 6 U.S.T. 3316, 3406.

7 USCMA 543, 23 CMR 7

UNITED STATES
v.
 FLEMING

No. 7943
Decided February 8, 1957

[23 CMR 11] On petition of the accused below. CM 377846, reported below at 19 CMR 438. Affirmed.

Major Frank C. Stetson, Allen E. Gramza, Esq., and Alfred E. LaFrance, Esq., argued the cause for Appellant, Accused.

First Lieutenant Arnold I. Burns argued the cause for Appellee, United States. With him on the brief was Lieutenant Colonel Thomas J. Newton.

Opinion of the Court

HOMER FERGUSON, Judge: The accused Army officer was tried by general court-martial for three specifications alleging violations of Article of War 95, 10 USC § 1567 (1946 ed) (Charge I), two specifications reciting similar acts-allegedly violative of Article of War 96, 10 USC § 1568 (1946 ed) (Charge II), one specification of violating Article 133, Uniform Code of Military Justice, 10 USC § 933 (Charge III), and an identical specification purportedly violating Article 134, Uniform Code of Military Justice, 10 USC § 934 (Charge IV). He pleaded not guilty to all charges and specifications but was convicted with certain exceptions and substitutions of specification 3 of Charge I, specification 2 of Charge II, and the specifications and Charges III and IV. The accused was sentenced to total forfeitures, and to be dismissed from the service. After modifications of the findings, the convening authority approved the findings and sentence. An Army board of review, exercising its fact-finding powers, disapproved the findings of guilty of Charges III and IV and, after excepting an allegation from the identical specifications laid under Articles of War 95 and 96, supra, affirmed the findings of guilty and the sentence. In order to more clearly understand the case, the now remaining allegations in the two identical specifications of which the accused now stands convicted state as follows:

That the accused, "then Major and held as a prisoner of war by the enemy, did at or in the vicinity of Pyongyang, North Korea, between 1 February 1951 and 30 May 1951, willfully, unlawfully, and knowingly, collaborate, communicate, and hold intercourse directly with the enemy by joining with, participating in, and leading discussion groups and classes reflecting views and opinions that the United Nations and United States were illegal aggressors in the [23 CMR 12] Korean conflict, . . .^[1] and by participating in the preparation and making communist propaganda recordings designed to promote disloyalty and disaffection among United States troops, by praising the enemy and attacking the war aims of the United States, which recordings were later broadcasted in English over the Pyongyang radio, to wit: a statement which was broadcasted on or about 13 April 1951, stating in effect that the communists were treating prisoners of war in accordance with the principles' of humanity and democracy, and that the United States made a grave error in interferring [sic] in Korean internal affairs and should leave at once; an appeal to the 'Five Great Powers' (USSR, Peoples Republic of China, United Kingdom, United States, and France) broadcasted on or about 24 April 1951, urging them to sign a peace pact, and urging that anyone of the powers which refused to attend conferences for that purpose be considered a government with aggressive intentions; an appeal to President Truman and General McArthur [sic] broadcasted on or about 24 April 1951, urging them to withdraw United Nations forces immediately from Korea; a surrender appeal  broadcasted on or about 27 April 1951, inviting United Nations Troops to surrender and promising kind treatment by the communists; and a round-table conference or panel of five prisoners of war broad casted on or about 4 May 1951,urging support for the Communist sponsored Second World Peace Congress, in which he served as moderator; thereby giving aid and comfort to the enemy."

This Court granted the accused's petition for review, setting forth in pertinent part the following issues:

1. Whether the evidence is sufficient to support the findings of guilt.

2. Whether the law officer erred by instructing the court that in order to excuse a criminal act on ground of coercion, compulsion, or necessity, one must have acted upon a well-grounded apprehension of immediate and impending death or of immediate serious bodily harm.

3. Whether the law officer erred by refusing to give the defense requested instructions on partial mental responsibility.

4. Whether the law officer erred by instructing the court that the punishment for the offenses of which the accused was convicted included confinement at hard labor for life.

5. Whether the law officer erred by admitting into evidence Prosecution Exhibits 3, 5, 3a and 5a.

6. Whether employment by the accuser and the convening authority of pleadings designated by the accused as embodying a "shot gun" technique prejudiced the accused.

The record before us in this case is voluminous and the two specifications remaining for consideration recite a course of conduct which permeates the entire trial record. Therefore a detailed statement of the facts will be necessary. There is, however, little dispute between the parties as to what happened. Basically the issue boils down not so much as to what the accused did or did not do, but rather to the justifications for his actions. As stated in the defense appellate brief, "the issues with which we are here concerned are not the acts of the accused but whether the affirmative defenses of these acts were rebutted by the prosecution evidence."

The accused was captured by the Chinese Communists near the Yalu River in the northern reaches of Korea. After his capture he was marched to different locations and ended up being interned in the Valley Camp for about two months and for a month at a camp near Pyoktong. At the Valley Camp an English-speaking North Korean officer, whom we will hereafter refer to as Colonel Kim or Kim, informed the accused that arrangements were being [23 CMR 13] made to enable the prisoners to broadcast radio messages informing their families of their whereabouts. On January 29, 1951, Colonel Kim notified the accused, Lieutenant Colonel, then Major, Liles, and Major MacGhee, the three senior American officers in this particular prisoner of war group, that the time had arrived for the broadcast. The day following, these three officers, in company with seventeen other prisoners, departed by truck for Pyongyang. En route, the party stopped at the badly damaged village of Tackchon. The populace was hostile and evinced a threatening attitude toward the prisoners. A People's Court or Town Meeting was called, attended by about eighty-five Korean civilians. Questions were asked by the villagers as to why the Americans had come to Korea. According to a number of witnesses at the trial, most of the questions were answered by the accused and Colonel Liles through Colonel Kim, who acted as interpreter. Captain Galing testified that the accused stated that South Korea was the aggressor; that the war was propagated at the instigation of the imperialistic war mongers of Wall Street; and that President Truman and General MacArthur were the tools of the Wall Street conspiracy. Major MacGhee could not recall the accused specifically answering any questions; however he did remember that the answers given were to the effect that the United States was the aggressor in Korea; that its forces had no business there, and that the war and slaughter should be ended. The accused admitted that in order to placate Kim and the hostile and threatening crowd, he might have used some "party line" phrases.

Upon arrival at Pyongyang on February 2, 1951, the accused was elected compound leader. Not only was he responsible for the discipline and organization of the prisoners but he was also the link between the prisoners and Colonel Kim. He transmitted the captors' orders to the prisoners of war, and, conversely, the complaints and requests of the group to their captors. The accused held the position of group leader until June 1, 1951, at which time Captain Allen succeeded him.

After arrival at Pyongyang, Kim informed the prisoners that they were to prepare radio scripts describing their capture and Korean experiences. The accused testified that up to this time his idea had been only to let his wife know he was alive. To that end the accused submitted a short script. This was returned and he was informed by Kim that his broadcast time had been lengthened to fifteen minutes. The script was written, rewritten and revised some twenty or thirty times until finally broadcast. According to the accused he resisted the propaganda directed against President Truman along with demands that only United Nations troops be withdrawn from Korea. He testified that he succeeded in getting by with comments about the Roosevelt administration and a statement that all foreign armies—which of course included the Chinese—be withdrawn from Korea. Also included in the broadcast were statements that the prisoners were being treated according to the principles of democracy and humanity, and that the United States erred when it interfered in the internal affairs of Korea.

The accused testified that after the broadcast, Kim informed him that he was dissatisfied with the cooperation he had been receiving from the prisoners. They were insincere and, apparently to educate them, he was going to commence round-table discussions. The accused objected, but he was forced to pick four other prisoners to participate in a panel discussion, of which he was to act as moderator. Subsequently a month was spent in preparation of the script, after which time the panel discussion recording was made. The subject matter was the "Second World Peace Congress." The accused testified that Kim had inserted in the script as broadcast a number of his own Communist line phrases. A member of the panel, Lieutenant Wilson, testified that included among the points discussed were reduction of armaments and the outlawing of mass destruction weapons.

While the round-table script was being prepared, Kim read several "appeals" to the prisoners. The substance of these appeals is related in the specifi [23 CMR 14] cations. In brief, they were for a Five Great Powers Peace Pact; for President Truman and General MacArthur to withdraw United Nations forces from Korea; and for the United Nations troops to lay down their arms and surrender, being assured of kind treatment by the Communists. Each appeal was reduced to writing on a separate sheet of paper. They were laid on a table and a blank sheet for signature was placed underneath. The accused testified that he wrote his name on two of the blank sheets of paper. However, blank sheets of paper, or not, he pointed out that it made little difference whether the prisoners did or did not sign the appeals, for the Communists had already obtained the prisoners' signatures and would simply superimpose any signature upon any publication or article they desired.

Toward the end of April 1951, the prisoners were taken to a Korean house, which had electricity, where the roundtable discussion and the appeals were to be recorded. After the panel discussion was recorded, the appeals were read into the microphone. When an appeal was read, each prisoner by order of rank trooped to the front of the room and "voice signed" his name, rank and serial number. The accused admitted voice signing the Five Great Powers Peace Conference Appeal. However, he and the other prisoners objected to signing a demand to President Truman and General MacArthur to withdraw United Nations troops from Korea. The prisoners finally prevailed in that the word "demand" was changed to "appeal." The accused then voice signed it. In addition he admitted voice signing the surrender appeal. After the accused and Colonel Liles had voice signed the latter appeal, dissension began to develop among the prisoners in the back of the room. This dissension grew into outright refusal to sign this appeal. The objections became so vehement that Kim thereafter abandoned any attempt to secure voice signatures to the surrender appeal.

To keep the picture in focus, it is advisable at this point to drop back and pick up the coercive circumstances leading up to the accused's surrender, and his participation in the propaganda broadcasts. The accused testified that just before his capture, while firing upon the enemy, he was rendered unconscious by a shell blast. The blast resulted in approximately fifteen superficial wounds in his back and legs. His first recollection after the blast was being kicked in the head by a Chinese soldier. He struggled to his feet and noticed a wounded fellow officer who had been his assistant as an advisor to a South Korean regiment. While prevented at bayonet point from rendering aid to this officer, another Communist soldier walked over to where he lay and killed him with a burp gun. The accused was marched south about seventy miles. He was questioned on numerous occasions and during one of the interrogations, when he continued to refuse to give more than his name, rank and serial number, he was physically abused by being slapped, knocked down, kicked, and pushed around on the floor. For about ten days he was given practically no food and water. He was subsequently taken to the Valley Camp. By this time, due to wounds, mistreatment, malnutrition and debilitation, he had lost approximately forty pounds. Conditions at the Valley Camp—not only according to the accused, but other prisoners as well—were extremely bad. Few of the captured soldiers had other than summer clothing. The accused in company with twelve other prisoners, occupied one small room. There was not enough space for all the prisoners to lie down at night and stretch out. Two cups of millet per day constituted the daily sustenance. Approximately sixty per cent of the prisoners were unable to walk and the mortality rate was so high that the dead were not buried for days, merely stacked up like cordwood outside in the freezing weather. The accused made numerous demands upon his captors for more food and for other necessities of life, such as medical attention and medical supplies for the sick and wounded. He felt that he was able to restore some type of discipline, organization, and the will to live among the prisoners. Toward the end of 1950 the prisoners were marched to another location. The accused testified that due [23 CMR 15] to his intercessions, the sick and wounded were carried in ox carts, instead of being marched on foot, which would have resulted in death to a sizable number. The accused was himself so weak that he was unable to carry his own knapsack. Conditions at the new camp were as bad, if not worse than those at the original location. The accused continued his efforts to obtain better treatment from his captors.

After the twenty prisoners arrived at Pyongyang, the food and living conditions markedly improved.

Before making the broadcasts, the accused testified that he was constantly harangued and pressured by Colonel Kim. According to Kim, there were two kinds of people: those for peace and those against peace. Those against peace were war criminals and not fit to live. If the accused fitted into that category he would be put in a "hole" and would never come out. But if he were for peace, he was a friend. His actions would indicate whether he was for or against peace. When the accused initially refused to do the acts to prove his "friendliness," he was asked if he wanted to return to the previous camp up north. The accused replied in the affirmative and Kim informed him that he could start walking the 150-200 mile distance. It was midwinter, the accused's shoes had been stolen, and he was wearing rags wrapped around is feet. These factors, plus his greatly weakened physical condition, led the accused to the conclusion that he would never reach the north camp alive. Thereafter, on each occasion when the accused objected to Kim's propaganda efforts, he was threatened with the walk north.

Colonel Liles testified that when Kim insisted on the manuscripts being prepared, the accused informed him that the prisoners could not comply unless more food was forthcoming. Kim, promised to try to accomplish that objective, but subsequently returned and said he was unable to secure additional rations. In the meanwhile nothing more had been done on the manuscripts. Kim was angry and declared that any man who refused to make a radio recording would march back to Pyoktong on foot. After this threat, the writing commenced. Major Allen also testified to numerous threats to march the prisoners north to the Yalu River. In his opinion, none could have survived the march.

The accused ascribed as further reasons for lending support to the roundtable panel and the appeals, the fact that due to his weakened physical condition and the constant psychological hammering of Colonel Kim, he was in a state of complete confusion, frustration, and hopelessness. Morale among the prisoners had reached bottom. The food was barely sufficient to sustain life, and during the arguments over the appeals Kim even threatened to cut that off.

Also Kim's subsequent threat of the caves made to the accused and the other prisoners of war unless they cooperated undoubtedly affected prisoner cooperation. After completion of the accused's broadcast at Pyongyang, the prisoners were moved to a location near the caves. The latter were recesses in the hillside. They were wet and muddy with little or no heating facilities. The prisoners lived in the muck and mire like animals. Primarily the caves were used for South Korean prisoners, but also some American and British soldiers were incarcerated there. Also a great many transient, sick and wounded, and in some instances recalcitrant prisoners, resided in the caves. The mortality rate in the indescribable filth and privation of these holes in the ground was extremely high. The prisoners felt that a sentence to the caves was almost tantamount to a sentence of death. Of the prisoner group with whom the accused was associated at least eight were punished by being sent to the caves. Fortunately these eight survived, except that one officer died shortly after being taken out of the caves because of his weakened condition. Almost all who testified were of the opinion that had their confinement in the caves lasted much longer, they would have died. Major MacGhee, one of the officers sentenced to the caves, testified that all twenty-three Ameri [23 CMR 16] cans already there when he arrived died.

The accused testified that when he objected to a round-table discussion, Kim took him to see fourteen recently captured young American enlisted men huddled together in the filth of a small cave. They were sick, dirty, had no latrine, little water, and no hope. The accused tried to get them moved to his camp, and they pleaded with him to try to accomplish this objective. Kim kept the accused "dangling" with vague promises. According to the accused, whenever he balked on the propaganda, Kim reminded him of the Americans in the caves and again took him to see them. Each time marked fewer numbers. On the last trip only one American remained. He was lying in the mud, too sick to rise, and he informed the accused that all the rest had died, and that he too was dying.

Discussion groups were formed and classes were held in the prisoner of war camp. Initially, Mr. and Mrs. Suh came over in the evenings and discussed political matters. These discussions and subsequent developments will be related through the witnesses.

According to Captain Galing, after the twenty prisoners were taken to Pyongyang, Kim or his secretary, Suh, came to their rooms on a number of occasions and one or two hour discussions would be held with respect to who started, and who was responsible for the Korean war. Magazine articles were sometimes read, followed by questions. The accused responded to these questions and some of his statements were to the effect that South Korea was the aggressor; that Americans had no business interfering in a Korean civil war, and that Wall Street was backing the war for financial gain.

Major MacGhee testified that study classes were supervised by Suh or Colonel Kim. These classes were held in the evenings after Communist propaganda for study had been given to the accused for distribution to the prisoners during the day. During the study sessions one of the prisoners would be called upon to read a portion of the material and thereafter the group would discuss it. MacGhee recalled that on one such occasion, the accused made remarks with respect to business in America, which highlighted the decadence of capitalism. Quite often the Korean who had commenced the class would leave. When that happened, normally the accused or Colonel Liles led the discussion.

Lieutenant Wilson testified that he remembered the general tenor of one of the articles discussed was that the "people" were speaking out for peace, disarmament, and the outlawing of weapons of mass destruction. Wilson was aware of the fact that the accused participated in a number of the discussions, but he had no present recollection of what he said.

Master Sergeant Christie recalled that he remembered hearing the accused and other prisoners of war discuss the eventual collapse of the monopoly controlled American economy. On one occasion the accused used as an example Argentina, pointing out that with a lower standard of living, it could produce wheat on the world market cheaper than the United States.

When the twenty prisoners, together with another group of fifteen prisoners who had joined them two weeks earlier, were moved to the new location near the caves—sometime in March 1951—two-hour indoctrination classes were held during the day followed by two-hour evening discussion periods. Sergeant Gardiner testified that the accused appeared to be in charge of these evening sessions. He could not recall that anything anti-American was stated by the accused. A number of witnesses testified that when the Korean monitors left the room, the accused would slant his discussion favorably to the United States.

John Narvin, formerly private first class, recalled being posted by the accused to watch for the Koreans during one of the discussions. Colonel Liles testified that when the captors were absent the accused attempted to point out flaws in the Communist system.

An article appearing in a North Korean magazine bore the accused's name and picture. It stated that United States forces should leave Korea. The [23 CMR 17] accused testified that although he did not author the article it appeared to contain language similar to his first broadcast. He pointed out that it was an easy matter for the Communists to obtain one's picture and signature on any publication they desired. They frequently took pictures of the prisoners and had everyone's signature.

After June 1st, 1951, Captain Allen was elected group leader and the accused was made librarian. He was responsible for a considerable quantity of Communist propaganda. He did not let the prisoners use the material for toilet paper because it was inventoried and he was held responsible for the missing items.

The accused's policy with respect to cooperation with the enemy by the other prisoners was predicated upon his belief that every prisoner had to be guided by his own conscience. The record is clear that Fleming did make statements to that effect to a number of the prisoners. But there is also testimony in the record that he urged some of the prisoners to complete propaganda writings and not hold back from involvement in the political activities, or else Kim might make some changes. The accused's idea of his policy as to the propaganda activities can best be described by his own testimony. He testified:

"A. I know in my own mind that if I had taken the policy of saying to these men: 'Resist them; everybody resist them,’ that information would have gone to headquarters so fast that they would have known it about as fast as everybody else. And I had a pretty good idea of what would happen to me.

"Secondly, I then would be the individual responsible for any beatings, tortures or deaths that may occur to anyone of the men there.

"Another thing was that a policy like that was absolutely not practical because you have to take human nature into this thing. They wouldn't have done it.

"So it had to be one where the individual himself, in the final analysis, was going to be the one that said: ‘I stop here regardless of what happens.'

"And I am firmly convinced in my own mind that the policy was right. It proved itself right when the flare-up came during the recordings of the so-called appeals; when some of these people went to the end and stopped, and that was it.

"That is the only policy I could see that would have any practicability at all and be workable.

"By doing that we could resist in every way that we could think of as individuals. I resisted in every way that I could, and I know that every other individual resisted in every way that he could, and the resistance was different as the situations developed. Some of it was blunt resistance; some of it was passive; some of it took the turn, as I have mentioned so many times, of delay, double talk, sabotage, not understanding, everything we could think of to hold off.

.     .      .      .      .

"A. I felt this way, and this was certainly nothing new at Camp Twelve. It had started long before I had anything to do with Camp Twelve. The most futile thing in the world was a dead prisoner of war in North Korea. And I had determined a long time before this that I was going to do everything in my power to keep those people alive. By doing so I was, in some small way, defeating what the Communists were trying to do.

"As I said before, the best thing that could happen to the Communists was to have us all die. And, secondly, in a situation like that you have many thoughts of home. I thought, and everyone else thought-not only thoughts of just yourself getting home, but the thoughts of those people at home that are waiting for you to get home, the mothers, and the wives, and the fathers. And the way I feel about it personally is, and I think I am right, that for these men that came hack that may have done things wrong over there, it means more to their mothers and their families than a little bit of Com [23 CMR 18] munist indoctrination that actually may have more Communist heroes than anything else.

"A. I feel that there are innumerable officers and enlisted men that have had a long-time experience as prisoners of the Communist armies, that can give invaluable information to not only the American military establishment as to what can be done to better the situation if and when we fight the Communists again, for those that may be captured in the future; lessons that were learned by our mistakes, and by the suffering of the men that were over there. But also to show the American people our side of what Communism really is. And, believe me, the American people need to be shown.”

There is evidence in the record that by virtue of the accused's efforts more favorable conditions were obtained for the prisoners. A kitchen was set up with some degree of cleanliness, which helped reduce dysentery which was fatal to so many prisoners in Korea. Some semblance of discipline was restored and the prisoners were forced to exercise and follow a more or less military routine. They were not allowed, as Fleming testified, to merely lie down, give up and die. On at least one occasion, the accused obtained hospitalization for two prisoners which possibly saved their lives. Also he was able to secure a certain amount of medical attention and supplies. He pushed some of his demands so forcefully that, according to his testimony, on at least two occasions Colonel Kim flew into a ranting rage, pulled out his pistol, and threatened to kill him. Other witnesses testified that they recalled one instance when the accused was forced to get up before the prisoner group and condemn himself for his persistent behavior.

To counterbalance the scale, there is evidence that a number of prisoners reached a point from which they refused to budge with regard to Communist propaganda. These prisoners unquestionably knew that their refusal would mean banishment to the caves.

They nevertheless threw back the challenge to their Communist captors and refused to go any further. One British soldier, Sergeant O'Hara, refused from the inception to have anything to do with the Communist propaganda. A devoutly religious man, he was apparently able to withstand the Communist pressure. He eventually ended up in the caves but survived the war.

Evidence was introduced of the accused's outstanding military record.

There was psychiatric testimony that the accused was able at the time of the commission of the offenses to distinguish right from wrong and to adhere to the right. However, both psychiatrists—one for the accused and one for the Government—declared that under the circumstances described, the extreme stress and privation impaired the accused's ability to adhere to the right.

The assignments of error in this case will be taken up seriatim:

I

Is the evidence sufficient to support the findings of guilty?

As previously stated, there is actually little dispute on the facts. For all practical purposes the accused admits that he committed the acts alleged but insists that under the circumstances he was justified in so doing. According to the accused the acts were committed (1) to protect the lives and well-being of the fellow-prisoners of war; (2) under coercion and duress; and (3) while incapable of adhering to the right. These defenses will be dealt with chronologically.

There is considerable evidence in the record indicating that the accused was motivated—in part at least—by the well-being of his fellow-prisoners of war. There is other evidence, however, which casts a doubt as to the accused's primary motivation. Major MacGhee testified that when he refused to make a recording, Fleming informed him that he, Fleming, would have to report to Colonel Kim that MacGhee had double-crossed him. Within a short space of time thereafter MacGhee was transferred to the caves. According to Ser [23 CMR 19] geant Gardiner, the accused informed him that if he didn't straighten out he would be "shipped to the caves." Lieutenant Van Orman recalled that the accused told him that Kim's "got his eye on some of the people laying down around here and trying to get by and not get involved in the political program." And "Kim is getting sick of people hanging around here who are not producing, and is thinking about lowering the strength of the camp." Van Orman took the last statement to mean that if he didn't start cooperating, he would be transferred to the caves. But under the circumstances of this case, as it pertains to the issue now under discussion, we will assume that the motives of the accused were to "protect the lives and well-being of his fellow prisoners of war." However, good motives are not a defense to a crime.

In United States v Batchelor, 7 USCMA 354, 22 CMR 144, the Court had before it the defense contention that under the law officer's instructions the members of the court-martial could convict the accused if they were satisfied that he had voluntarily and knowingly communicated with the enemy without proper authority "even though the accused believed his acts contributed to world peace and the best interests of his fellow-prisoners and his country." The Court concluded that "the instruction is a good statement as to what the law is in this field," adding:

". . . The question then becomes one of whether what might be a laudable motive—in entirely different circumstances—will serve to exculpate a defendant charged with improper communication with the enemy.

"In Chandler v United States, 171 F2d 921 (CA 1st Cir) (1948), the accused, an American citizen, was charged with treason. It was argued that treason is a crime dependent upon the actor's motives, and that the jury should have been told that the defendant could not be found to have had an 'intent to betray' if they believed that he acted from patriotic motives upon a firm conviction that what he did was for the best interests of the United States. The Circuit Court rejected this argument, and we believe its language is appropriate here. Chief Judge Magruder, the organ for the court, disposed of the matter as follows:

‘. . . if appellant's argument in this connection were sound, it would of course be applicable whatever might be the character of the overt acts of aid and comfort to the enemy. Suppose Chandler had obtained advance information of the Anglo-American plans for the invasion of North Africa and had passed the information on to the enemy. Would a treason prosecution fail if he could convince the jury that, in his fanatical and perhaps misguided way, he sincerely believed his country was on the wrong side of the war; that he sincerely believed his country's ultimate good would be served by an early withdrawal from the war; that he sincerely believed that the best, perhaps the only, way to accomplish this good end was to bring it about that the first major military operation of the United States should be a resounding fiasco, thereby stimulating such a revulsion among the American people that the perfidious administration would be forced to negotiate a peace? It is hardly necessary to state the answer to that question.

'When war breaks out, a citizen's obligation of allegiance puts definite limits upon his freedom to act on his private judgment. If he trafficks with enemy agents, knowing them to be such, and being aware of their hostile mission intentionally gives them aid in steps essential to the execution of that mission, he has adhered to the enemies of his country, giving them aid and comfort within our definition of treason. He is guilty of treason, whatever his motive.'''

In United States v Schniederman, 106 F Supp 906, 930 (S .D. Calif) (1952), the Federal District Court had before it, allegedly, violations of the Smith Act; i.e., teaching and advocating the [23 CMR 20] overthrow of the United States Government by force and violence. With respect to motive, the court made the following observation:

"Intent and motive should never be confused. Motive is that which prompts a person to act. Intent refers only to the state of mind with which the act is done.

"Personal advancement and financial gain are two well-recognized motives for much of human conduct. These laudable motives may prompt one person to voluntary acts of good, another to voluntary acts of crime.

"Good motive alone is never a defense where the act done is a crime. If a person intentionally does an act which the law denounces as a crime, motive is immaterial except insofar as evidence of motive may aid determination of the issue as to intent." [Emphasis supplied.]

The evidence in the instant case is ample to support the conclusion that the accused intended to do the acts charged. Since, as we will hereafter discuss, the offenses here require no specific intent, the accused's motives are immaterial, except, of course, as they relate to the determination of an appropriate sentence.

The accused next argues that the evidence is insufficient because he was excused from the legal consequences of his actions by virtue of duress and coercion. In substance, the law officer instructed the court that in order to convict it had to find beyond a reasonable doubt that the accused did not act under a well-grounded apprehension of immediate and impending death, or of immediate serious bodily harm. The trial court did not so find. The members of the court had all the facts laid before them. Whether or not they chose to believe Fleming and, if so, to what extent, was a matter solely within their province. They had the right to assess to the witnesses, including the accused, whatever weight they desired, in the light of all the testimony in the case. Being the sole judges of the credibility of the witnesses, they were entitled to accord to the evidence such weight as they considered under all the circumstances of the case it merited under proper instructions. The real issue then is whether the instructions on the claimed defense of duress and coercion were legally correct. This issue is decided in subdivision II hereinafter. Since this Court cannot weigh the facts as to this, for the accused to prevail we would have to find as a matter of law that the accused's actions were committed under a well-grounded apprehension of immediate death or serious bodily harm. Although by civilized standards conditions in the prisoner of war camp were deplorable, we cannot conclude as a matter of law that the threat of duress or coercion was so immediate as to legally justify the accused's acts. Admittedly, lingering in the background at the camp was the threat of the caves. Moreover it appears that the accused was threatened with a 150-200 mile hike back north. At the time of this threat the accused was without shoes and he deduced that he would be unable to successfully accomplish the trip alive. However, assuming this fact to be true, the court-martial did not find that the threat, standing alone, fell within the immediacy contemplated by the law. Perhaps they felt that accused should have determined by refusal what would have then happened; whether and under what conditions the threat would have been carried out. He might have been given shoes. He might have been called upon to make the march in stages that he could have endured. We note that as a matter of fact many threats were made by the Communists which were not carried out. Major MacGhee testified that after several months' captivity, he definitely concluded that his captors would not carry out their threats to the death. He thereafter refused to "cooperate" and although sent to the caves, he survived. Also, the court-martial could have found that daily life in the prisoner camp did not equate to fear of immediate death or great bodily harm. During the accused's tenure as group leader, not a single prisoner of war died. Many people who resided in the caves died; many did not. Of the eight prisoners in Colonel Fleming's group [23 CMR 21] who eventually ended up in the caves, all survived. One, Lieutenant Crockett, died shortly after his release; he had long been seriously ill. At one time he had been hospitalized by his captors. The rigors of prison life eventually exacted their toll and this fine officer—like many others—died. Further, there is evidence in the record which indicates that the accused had already communicated and cooperated with his captors prior to his knowledge of the caves. He testified that he made his initial recording in Pyongyang and then moved to the new location near the caves. Before the move he had not been impressed with Kim's threats to put him into a "hole," and it was not until later that he was aware of the fact that the threat actually referred to the caves. But prior to that time he had made a recording allegedly stating that prisoners were being treated humanely and the United States had made a mistake in interfering in Korea. He had addressed the town meeting in Tackchon, purportedly declaring that the war was being fought at the behest of the Wall Street profiteers. He had also participated in some of the discussion groups. Finally, the fact-finders could have concluded that the prisoners were not—with isolated exceptions—physically abused. A number of witnesses testified that they were not subjected to physical abuse and that they had never noticed marks of physical violence upon the accused.

After a careful study of the facts in this case, we cannot conclude that the court-martial erred as a matter of law in not finding that the threats of duress and coercion fell within the law officer's definition of immediacy, which would excuse the accused's conduct. Stated differently, the court on the evidence of record could have reasonably found that the accused acted without any well-grounded apprehension of immediate death or serious bodily harm.

The accused next maintains that the evidence is insufficient in that his ability to adhere to the right was so impaired or diminished by harassment, deprivation, degradation, or physical impairment as to make it impossible for him to refuse his captor's demands or to adhere to the right with respect to the particular acts charged.

The expert psychiatric testimony adduced by both the prosecution and the defense was to the effect that although the accused was responsible for his acts and could adhere to the right, his ability with respect to the latter was limited or impaired. In this regard this Court has repeatedly approved the test set out in paragraph 120b, Manual for Courts-Martial, United States, 1951, which provides:

". . . A person is not mentally responsible in a criminal sense for an offense unless he was, at the time, so far free from mental defect, disease, or derangement as to be able concerning the particular act charged both to distinguish right from wrong and to adhere to the right. The phrase 'mental defect, disease, or derangement' comprehends those irrational states of mind which are the result of deterioration, destruction, or malfunction of the mental, as distinguished from the moral, faculties. To constitute lack of mental responsibility the impairment must not only be the result of mental defect, disease, or derangement but must also completely deprive the accused of his ability to distinguish right from wrong or to adhere to the rig ht as to the act charged." [Emphasis supplied.]

The law officer in his charge to the court gave this portion of paragraph 120b practically verbatim. There is simply no evidence of record that the accused's ability to distinguish right from wrong or adhere to the right was completely impaired. Evidence that the accused's ability to adhere to the right was impaired is not a good defense. Furthermore, under the facts of this case, the fact-finders were justified in finding that the accused could adhere to the right. The accused testified on two occasions he was so adamant in his stand that Colonel Kim threatened to kill him, and he told Kim to go ahead and pull the trigger. And after he left the Pyongyang area, according to his testimony, he no longer cooperated with [23 CMR 22] his captors and was considered a reactionary. These factors do not indicate even a partial inability to adhere to the right.

II

Did the law officer err by instructing the court that in order to excuse a criminal act on grounds of coercion, compulsion, or necessity, one must have acted under a well-grounded apprehension of immediate and impending death or of immediate serious bodily harm?

That part of the law officer's instruction on duress and coercion, objected to by the accused, is set forth below:

"However, this doctrine of coercion, compulsion or necessity is hedged about with certain positive rules of law and is recognized only in clear cases. In order to excuse a criminal act on the ground of coercion, compulsion, or necessity, one must have acted under a well-grounded apprehension of immediate and impending death or of immediate, serious, bodily harm.

"Fear of injury to one's property or of remote bodily harm does not excuse a crime. Moreover, the threat of immediate and impending death or of serious and immediate bodily injury must have continued throughout  the entire period of time during which the crime was allegedly committed. If the accused had a reasonable opportunity to avoid committing the crime without such danger, he cannot invoke duress as a defense. In other words, this coercion or compulsion that will excuse a criminal act must be present, immediate and im1Jencling, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done." [Emphasis supplied.]

During an out-of-court conference, the defense counsel, after objecting to the wording of the law officer's proposed instruction—as above given—offered a substitute:

". . . First of all, with reference to the instruction on coercion and compulsion, we object to the last sentence on page 21, which carries on to page 22, in which the Law Officer proposes to instruct the Court as follows:

"'In order to excuse a criminal act on the ground of coercion, compulsion or necessity, one must have acted under a well-grounded apprehension of immediate and impending death or of immediate, serious, bodily harm.'

"We submit that in lieu of the statement just read the following be incorporated in the instruction:

"'Coercion, which will excuse the commission of an act, otherwise criminal, must be immediate and of such nature as to induce a well-grounded apprehension of immediate, imminent, or impending death, or serious bodily injury, and leave no reasonable opportunity to escape the compulsion without committing the act.'

"Now, in this connection it is our position that in light of the testimony in this case, notwithstanding the Manual instruction on the subject, it would be improper to instruct a jury that one must have acted under a well-grounded apprehension of immediate and impending death.

"The fear of mediate or a delayed, or a wasting death from starvation, deprivation or other like conditions, can just as well spell coercion and compulsion as the fear of immediate death.

"The instruction that we have requested is substantially taken from the case of R. I. Recreational Center vs Aetna Casualty & Surety Company, 172 [sic, 177J Fed. 2d, 603, and cited in 12 ALR 2d, at page 230, and in 14 CMR, at Page 350 [sic 356].” [Emphasis supplied.]

A similar instruction was before this Court in United States v Olson, 7 USCMA 460, 22 CMR 250. In that case Judge Latimer, writing for the Court, upheld the instruction as being in accordance with the Federal holdings.

In their brief, counsel for the accused admit that the law officer's instruction on duress and coercion is a correct statement of the law when prof [23 CMR 23] fered as a defense to a routine crime committed in a civilized society. However, in a case such as this the defense argues that "to attempt to apply such law to the situation overwhelmingly shown by this record of trial, and by history to have existed in the prisoner of war camps, where every breath was drawn under constant pressure by unscrupulous captors, and in the ever present shadow of death, is to ignore reality to the grave prejudice of the accused." To buttress his position, the accused cites an 1865 opinion of  the Judge Advocate General of the Army  to the effect that the severe rule of duress, as laid down in Respublica v McCarty, 2 Dallas 86 (US 1781) (which held that the only excuse for joining the King's forces was the fear of immediate death), could not be properly applied in all its strictness to cases of Union prisoners—during the war between the States—who were held in Confederate prisons and allegedly subjected to "authenticated cruelties" and were thereby "induced" to join the Southern forces. This opinion, however, is not the law and merely expounds a policy pertinent to those times, that certain recaptured Union prisoners should not be court-martialed. On the other hand, we have ample Federal law on this precise subject which is as the law officer instructed.

In Iva Ikuko Toguri D'Aquino v United States, 192 F2d 338 (CA9thCir) (1951) the defendant was convicted of treason, which arose from radio broadcasts from Japan (Tokyo Rose) during World War II. The defendant raised the defense of duress and coercion. The Court of Appeals held that:

". . . The Court instructed the jury at length upon the defense that the criminal act was not committed voluntarily but was the result of coercion, compulsion or necessity. The instruction included the statement that 'in order to excuse a criminal act on the ground of coercion, compulsion or necessity, one must have acted under the apprehension of immediate and impending death or of serious and immediate bodily harm. Fear of injury to one's property or remote bodily harm do not excuse an offense.'  It will be noted that the court's instruction was almost identical to that approved in Gillars v. United States, supra, 182 F. 2d at page 976, note 14. The charge was a correct statement of the law upon this subject. United States v. Vigol, 2 Dall 346, 2 U.S. 346, 1 L. Ed. 409; Respublica v. McCarty, 2 Dall 86, 2 U.S. 86, 1 L. Ed. 300; Shannon v. United States, 10 Cir., 76 F. 2d 490; R. I. Recreation Center v. Aetna Casualty & Surety Co., 1 Cir., 177 F. 2d 603, 12 A.L.R. 2d 230. [Emphasis supplied.]

"Appellant seriously contends that however correct the instruction might be in an ordinary case where a person accused of crime committed in his own country claims to have been coerced by an individual, the instruction of the court was in error particularly in its requirement of apprehension of immediate and impending death, or of immediate bodily harm, in a case where the accused person was in an enemy country, unable. To get protection from the United States and where the compulsion is on the part of the enemy government itself.

“. . . We know of no rule that would permit one who is under the protection of an enemy to claim immunity from prosecution for treason merely by setting up a claim of mental fear of possible future action on the part of the enemy. We think that the citizen owing allegiance to the United States must manifest a determination to resist commands and orders until such time as he is faced with the alternative of immediate injury or death. Were any other rule to be applied, traitors in the enemy country would by that fact alone be shielded from any requirement of resistance. The person claiming the defense of coercion and duress must be a person whose resistance has brought him to the last ditch."

In Gillars v United States, 182 F2d 962 (CA DC Cir) (1950), the defendant, Mildred Gillars, was convicted of treason for taking part in psychological warfare against the United States by [23 CMR 24] broadcasting radio programs from Germany during World War II (a German Tokyo Rose). The defense of duress and coercion was raised and the jury instructed as set forth in Footnote 14:

"'Moreover, the force and fear, in order to constitute a defense in a case of treason, must continue during all the time of such service with the enemy, and one who makes force his defense must show that he left the service as soon as he could. In other words, ladies and gentlemen of the jury, this coercion or compulsion that will excuse a criminal act must be present, immediate and impending, and of such a nature as to induce a well grounded apprehension of death or serious bodily injury if the act is not done.

"'* * * Nor is it sufficient that the defendant thought she might be sent to a concentration camp, if you so find, nor are threats to other persons sufficient. * * *'" [Emphasis supplied.]

The court concluded "The instructions which were granted were indeed all that the evidence warranted." We must necessarily note that both the civil and the military have repeatedly affirmed this same test over a period of many years. See Shannon v United States, 76 F2d 490 (CA10th Cir) (1935); United States v Floyd, 18 CMR 362; Winthrop's Military Law and Precedents, 2d ed, 1920 Reprint, pages 297, 635; Snedeker, "Military Justice under the Uniform Code," § 2405 (b) (1) (1953); Davis, "A Treatise on Military Law of the United States," 3d ed, page 138.

In the present case the board of review had this to say about the defense of coercion and duress (United States v Fleming [CM 377846], 19 CMR 438, 450):

"We are not unmindful of the hardships or the pressures to which the accused and his fellow prisoners were subjected prior to the time of his collaboration with the enemy. Obviously living conditions were not good, the diet was poor, and threats were made of worse things to come if cooperation was not forthcoming. It could hardly be argued that the accused was not under great pressure. However, it is important to note that,: at the times accused committed the acts alleged, the food ration, though scarcely abundant, was considerably improved over the ration in Camp Five. Furthermore, we cannot overlook the fact that accused cooperated with his captors upon the mere assertion of the threats. Thus, when first threatened with being forced to walk north to Pyoktong, the accused immediately proceeded to write and record his propaganda broadcast, without attempting to ascertain that his captors actually meant to carry out their threat. These circumstances preclude a finding that accused's fears were well grounded. But even assuming that accused was justified in believing that his captors would execute their threat, the defense of duress was not established, for the threat was not of immediate and impending death or serious bodily harm. It was not at all certain at the time the threat was made that walking north to Pyoktong would cause death at all, much less immediately. By way of comparison, if, for example, accused's captors had actually made him start on foot for Camp Five, and it then became evident that he could not survive the march, a valid defense of duress might have arisen for capitulation at that point. But that is not this case. Here the danger of death was problematical and remote. Even more damaging to the cause of the accused was the instance of the 'surrender appeal.' Accused 'voice-signed' this monstrous item of propaganda apparently upon the threat of having the food rations cut off or curtailed, and of being sent to the 'Caves'. The junior officers and enlisted men present refused en masse, although they were subject to substantially the same pressures as accused. Despite the example of capitulation set by the accused, a field grade officer and their leader, they at least were willing to determine whether their captors would send them to the Caves or cut off the food if they refused to collaborate. [23 CMR 25] Accused was not. As the court stated in D'Aquino v. United States, supra, 'The person claiming the defense of coercion and duress must be a person whose resistance has brought him to the last ditch' (182 F. 2d at 359 ). Accused's resistance had not 'brought him to the last ditch'; the danger of death or great bodily harm was not immediate. Accused can not now avail himself of the defense of duress."

The final disposition here as to duress and coercion must be determined by the law which is without exception that the defense is only available under a reasonably grounded fear of immediate death or great bodily harm. The fact-finders found such not to be the fact in this case.

III

Did the law officer err by refusing to give the defense requested instructions on insanity?

The defense requested, during an out-of-court hearing, the following instruction as to the effect of physical impairment on the accused's ability to adhere to the right and resist his captors:

"In connection with your consideration of the elements of coercion and duress about which I have just instructed you, you are further instructed that you may take into consideration, in your deliberations, the elements of harassment, deprivation, degradation, and physical impairment, if any, as revealed by all of the evidence in this case. If, in your determination of the accused's ability to adhere to the right, you find, from the testimony that has been offered in this case, that the ability of the accused so to do was so impaired or diminished by harassment, deprivation, degradation, or physical impairment, so as to make it impossible for the accused to refuse to comply with the demands of his captors or to adhere to the right, then, you must find him not guilty of those charges in which these elements are involved." [Emphasis supplied.]

We have already noted that the instructions given by the law officer on duress and coercion were correct. The above requested instruction appears to be an effort to combine elements of the duress, coercion, and insanity defenses. We further observe that the law officer thereafter instructed the court concerning the approved test with respect to the ability to adhere to the right. Without ruling whether such an instruction as requested by the defense here would ever be required, suffice it to say that the defensive theories of duress and coercion were adequately covered by the law officer. The requested instruction would have changed the test of insanity as approved by this Court and set forth in paragraph 120b of the Manual for Courts-Martial, supra (and as given by the law officer) which declares that lack of mental responsibility must result from mental defect, disease, or derangement. Under the instruction as requested, the accused could have been acquitted by reason of mental irresponsibility even though he was not suffering from a disease of the mind. In addition, the requested instruction would have permitted acquittal of the accused by a showing that his ability to adhere to the right had only been impaired or diminished by factors other than mental sickness whereas the law as recognized by this Court requires complete deprivation of the ability to adhere to the right.

The only evidence of record touching upon mental capacity was the testimony of Drs. Arnold and Baker, psychiatrists, who testified that the accused was not suffering from mental defect, disease or derangement of the mind, but that his ability to adhere to the right was possibly impaired or diminished due to the stresses and strains of prison life and nutritional deficiencies. Defense witness, Dr. Baker, testified that the accused was not suffering from a psychiatric or psychoneurotic disorder. It is quite apparent, therefore, that the accused was not suffering from the type of physical infirmity recited by the Manual and approved by this Court.

One further facet of the accused's [23 CMR 26] argument as to insanity should be commented upon. The accused attempts to bring himself within the rule of United States v Kunak, 5 USCMA 346, 17 CMR 346, and United States v Dunnahoe, 6 USCMA 745, 21 CMR 67, wherein it was held that partial mental irresponsibility arising from a mental impairment falling short of legal insanity was a defense to an offense requiring a specific criminal intent. The difficulty with this argument, however, is that the accused does not stand convicted of offenses requiring a specific criminal intent. The charges here are similar to the offense defined by Article of War 81, 10 USC § 1553 (1946 ed). The argument was raised in United States v Batchelor, supra, that Article 104 (the aiding the enemy Article of the Uniform Code of Military Justice which replaces Article of War 81) required a specific criminal intent. The Court held that the offense of knowingly communicating, corresponding, or holding intercourse with the enemy, in violation of Article 104, does not require a specific intent; that an instruction requiring only a finding of general criminal intent and a finding of words importing criminality is sufficient. We hold that the same reasoning should apply to the offenses now before this Court. See also paragraph 183d, Manual for Courts-Martial, supra, and paragraph 169c, Manual for Courts-Martial, U. S. Army, 1949.

Also throughout the lengthy record of this trial, it was never claimed by the accused or defense witnesses that he did not know he was communicating with the enemy. The accused testified at considerable length that he not only was aware that he was communicating with the enemy, but he resisted their efforts by delay, technicalities, and general sabotage. He recalled with vigor—and we believe him—that he never for an instant believed any of the "malarky" they were trying to get across to the prisoners. Absent is the claim that the accused was acting under any type of mental illness which deprived him of the ability to form a criminal intent.

IV

Did the law officer err by instructing the court that the punishment for the offenses of which the accused was convicted included confinement at hard labor for life?

According to the Manual for Courts-Martial, U. S. Army, 1949, the sentence for a conviction under the Article of War 95 was dismissal, and for Article 96 as a court-martial might direct. Paragraph 117c of the 1949 Manual, supra, provides that:

". . . If an offense not listed in the table [Table of Maximum Punishments] is included in an offense which is listed and is also closely related to some other listed offense, the lesser punishment prescribed for either the included or closely related offense will prevail as the maximum limit of punishment."

So if no punishment is listed in the Table of Maximum Punishments with respect to an offense, we must examine the Table for a closely related offense. See United States v Stewart, 2 USCMA 321, 8 CMR 121; United States v Blevens, 5 USCMA 480, 8 CMR 104. The only similar offense to the instant one is Article of War 81 which provided that any person who, without proper authority, "knowingly holds correspondence with or gives intelligence to the enemy, either directly or indirectly, shall suffer death or such other punishment as a court-martial or military commission may direct." However the Table does not list a maximum punishment for that offense. We are therefore referred back to the Article itself. Thus it would appear that the law officer did not err by instructing the court that the maximum punishment was life imprisonment.

V

Did the law officer err by admitting into evidence Prosecution Exhibits 3, 5, 3a and 5a? The parties stipulated that Prosecution Exhibits 3 and 5 were magnetic tape recordings of radio broadcasts, purportedly emanating from the Central Broadcasting Station of the Democratic People's Republic of Korea located at Pyongyang, Korea. The broadcasts [23 CMR 27] were intercepted and recorded on the tapes on Okinawa by the United States Foreign Broadcast Information Service. Prior to their introduction into evidence, the records were played during an out-of-court hearing. Several witnesses identified their own and other voices and recognized segments of the recordings as containing appeals to the Five Great Powers, President Truman, and General MacArthur. Sergeant Mares identified the accused's voice and Warrant Officer Coxe believed that one of the voices was similar to the accused. Lieutenant Wilson testified that besides recognizing his own voice, he recognized the voices of the accused and other individuals who participated in the panel discussion. When the court reopened Wilson identified the panel discussion recording. It is quite true that the records were garbled with extraneous noises and obviously the witnesses had difficulty recognizing clearly and distinctly the participants. However, since the source of the broadcasts was admitted and agreed upon by the parties, any difficulty in understanding portions of the broadcast would appear to affect only the weight to be assessed to the exhibits by the fact-finders, not their admissibility.

In United States v Schanerman, 150 F2d 941 (CA3d Cir) (1945), the accused was prosecuted for bribery of a draft board member to obtain a deferment. The court declared:

"No error is found, as charged by appellant, in the refusal of the district court to instruct the jurors to disregard what they had heard when records of conversations between Appellant and Finneran were 'played' in the hearing of the jury during the trial. This type of evidence was admissible upon the authority of Goldman v. United States, 316 U.S. 129, 62 S. Ct. 993, 86 L. Ed. 1322 . . . but the mere fact that certain portions of the mechanically recorded conversations were less audible than others did not call for exclusion of what the jurors personally heard from the 'playing' of the records. There would be no more valid reason for exclusion of the mechanically recorded conversations than there would be for excluding competent conversations, overheard in part, by human witnesses."

Besides the garbled nature of the tapes, the accused argues that the broadcasts should also have been excluded because the Communists may have through trickery altered the recordings after they had been made. This possibility would also affect weight rather than admissibility. If valid, certainly such an argument should in all instances comparable to this render recordings from enemy territory inadmissible. However, similar recordings were admitted in the Iva Ikuko Toguri D' Aquino and Gillars cases, supra.

One further complaint remains with respect to the recordings. After the president of the court  expressed his dissatisfaction about the lack of clarity of the tapes, an alleged expert in the field of radio and audiofrequency ran the recordings through an electric audio filter process and re-recorded them. This "expert" testified at the trial that since this filtering process removed only the high frequency noises it would not materially alter the sound characteristics of a male voice. The re-recordings were admitted into evidence as Exhibits 3a and 5a. The defense strenuously objected that since the original tapes were available, the best evidence rule precluded the admissibility of the secondary evidence. We agree with the holding of the court in People v Stephens, 117 Cal App2d 653, 256 P2d 1033 that re-recordings made from a tape and wire recording "would appear . . . admissible in evidence and that the best evidence rule is not applicable." In the present case the recordings were improved by the filtering process and the contents thereof were not changed. There is no logical reason why the benefits of scientific developments should be denied access to the courtroom so long as the rights of the accused are fully protected.

Moreover, in this case the accused never denied that he made recordings for his captors. His defensive posture [23 CMR 28] was that he committed the acts but under the unusual circumstances he was justified. On the witness stand, he admitted recording the round-table discussion and voice signing the appeals. Besides the accused, other witnesses testified to the content of the recordings. As we stated in the beginning of this opinion, the issue was not whether the accused did the acts, but whether the illegality thereof was more than offset by the accused's explanation—along with other evidence—justifying his conduct. We hold, therefore, that the accused was not prejudiced by the admission of these recordings into evidence.

VI

Was the accused prejudiced by the Government's use of a “shot gun" type of pleading?

The accused stoutly contends that his rights were substantially prejudiced by frivolous pleadings on the part of the Government. He attempts to support his argument by quoting from a dissenting opinion of Judge Brosman in United States v Voorhees, 4 USCMA 509, 16 CMR 83, wherein the Judge condemned a "shot gun" type of pleading, which evinced an attempt to get a conviction despite the merits or lack of evidence as to all of the particular specifications and charges. The defense points the accusing finger at one of the specifications wherein it was alleged that during a crowded truck ride, the accused stomped on the foot of Corporal Gorr. The investigating officer recommended that the charge be dropped because, "I do not believe that the alleged offense committed under such circumstances was sufficiently serious as to warrant trial." Perhaps the advice of the investigating officer should have been heeded. But the convening authority has discretion in referring the charges. Under the circumstances we do not believe the accused was prejudiced or that the convening authority abused his discretion in referring this charge to trial. United States v Greenwalt, 6 USCMA 569, 20 CMR 285.

We are not unmindful of the rigors and horrors of the prisoner of war camps in Korea. Our sympathy goes out to the men who were unfortunately forced to endure the inhuman treatment foisted upon them by their barbaric captors. However, we cannot let a hard case make bad law. "War is a harsh business and Colonel Fleming was a field grade officer in the United States Army. He was senior to most of the other prisoners of war in his group and acted as a group leader. The exigencie s of the situation called upon him to be an example to his men. If anything, due to his superior rank and senior position, he was called upon to exercise a conduct more exemplary than the other prisoners. In this regard we think a quotation from the board of review holding in United States v Floyd [CM 374314], 18 CMR 362, is appropriate:

". . . As a commissioned officer of the United States Army, Colonel Keith, whether the senior American officer present in the particular camp   or not, and although deprived of many of the functions and prerogatives of his office by his Communist captors, had the responsibility and duty to take such actions as were available to him (and if the senior officer present to exercise such command as he was able) to assist his fellow prisoners, to help maintain their morale, and to counsel, advise and, where necessary, order them to conduct themselves in keeping with the standards of conduct traditional to American servicemen."

The court-martial, convening authority, and the board of review found that he failed to meet those high standards demanded by the Army of an officer of his rank. Under the circumstances we cannot hold that they were wrong.

The decision of the board of review is affirmed.

Judge LATIMER concurs.

QUINN, Chief Judge (concurring in the result):

I disagree with a number of statements made in the majority opinion. Most important is my disagreement with the majority's conclusion that, as a matter of law, a threat of confinement in the caves did not constitute a sufficient [23 CMR 29] threat of, at least, grievous bodily harm. The principal opinion itself notes that the "prisoners felt that a sentence to the caves was almost tantamount to a sentence of death"; that twenty-three Americans died in the caves between Major MacGhee's confinement and release; that the accused was taken to see fourteen newly captured prisoners confined in the caves, and by his last visit, all had died except one, and "he too was dying." In my opinion, this evidence is sufficient to raise a defense of coercion or necessity.

Raising a defense, however, does not mean that the court-martial was bound to accept it. Other evidence shows that the accused had freely and materially cooperated with and helped the enemy before he had heard or seen anything of the caves. Acts of misconduct prior to those charged can be considered by the court-martial in determining the accused's purpose or design in the commission of the offenses alleged. United States v Dickenson, 6 USCMA 438, 456, 462, 20 CMR 154. And, as the majority opinion indicates, there is evidence tending to show that the accused freely helped his enemy captors in enforcing their efforts to subjugate the prisoners. On the basis of this evidence, the court-martial could reject the accused's defense and find that he committed the acts charged without duress or compulsion. The question then is whether the court-martial received proper instructions from the law officer on the legal principles relating to the defense.

It is conceded, and the cases support the concession,^[2] that the law officer's instructions are a correct general statement of the law. However, at the trial the accused contended that the court members should not be instructed that to establish his defense of coercion, it must appear that he "acted under a well-grounded apprehension of immediate and impending death,” but that it would be sufficient if he were confronted with death, “or a wasting death from starvation, deprivation or other like conditions.” As I have already noted, in my opinion, the evidence of the many deaths that occurred in the caves provides a basis from which the court members could find that a threat of confinement therein was sufficient for a "well-grounded apprehension" of immediate and impending death or serious bodily harm, especially since the threat bears the "color" of the conditions that existed there. See United States v Olson, 7 USCMA 460, 22 CMR 250. The requested instruction, however, does not present that issue. On the contrary, it attempts to substitute a general fear of future possible mistreatment for the requirement of a present threat of present harm. Accordingly, the law officer was justified in rejecting the request to instruct. Since the instructions which he gave are correct and appropriate, the accused cannot complain.

Further particularization of my disagreement with statements in the majority opinion is unnecessary. Suffice it to say that I agree with the conclusions on the points discussed. Consequently, I join in the result.

Notes 

[1] This omission "and extolling the virtues of communism" is the portion of the specifications excepted by the board of review in their decision dated July 28, 1955.

[2] Parenthetically, I do not read the 1865 JAG opinion cited by the majority as expressing merely a policy not to punish returned Union prisoners. It seems to me that the JAG opinion approaches the modern view that a threat of serious bodily harm as well as a threat of death gives rise to the defense of coercion or necessity. See United States v Olson, 7 USCMA 460, 22 CMR 250.

HIGH COURT OF AUSTRALIA

THE KING against PORTER.

Criminal Law - Insanity - Temporary - Charge of Murder.

Charge to the jury upon a plea of temporary insanity set up to an indictment for murder.

TRIAL on Indictment.

On 31st January and 1st February 1933 (before the passing of the Seat of Government Supreme Court Act 1933) Bertram Edward Porter was tried on indictment for murder at Canberra before Dixon J. sitting in the original jurisdiction of the High Court under sec. 30B of the Judiciary Act 1903-1932.

It appeared that the prisoner had administered strychnine to his infant son aged eleven months and had then attempted to take strychnine himself but had been interrupted by the entry of the police. The child died, and this was the murder with which he was charged. His defence was that he was insane at the time he committed the act.

The facts set up in support of the defence were briefly as follows :- After a period of separation from his wife during which he looked after the child, he had made desperate but unsuccessful efforts to fleet a reconciliation. He became extremely emotional and showed symptoms of a nervous breakdown. He was sleepless, and took quantities of aspirin, phenacetin and caffein. He then travelled with the child from Canberra to Sydney in circumstances which made it probable that he was without sleep for three nights. On his return he had a final interview with his wife, in which he appeared to have lost all control of his emotions. On her refusing to have anything to do with him or the child, he told her he would poison himself and the child and hastened away to obtain the strychnine. She informed the police, who found him shut in his house, sobbing. He had just given the strychnine to the child and was about to take it himself.

P. V. Storkey, for the Crown.

O'Sulliva.n and Hidden, for the prisoner.

DIXON J., in summing up, said :-

The accused stands charged under the name of Bertram Edward Porter, for the murder of his child, Charles Robert Porter, committed on 28th November 1932. The crime of murder is committed when, without any lawful justification, without any excuse, without any provocation, a person of sufficient soundness of mind to be criminally responsible for his acts intentionally kills another. To begin with, every person is presumed to be of sufficient soundness of mind to be criminally responsible for his actions until the contrary is made to appear upon his trial. It is not for the Crown to prove that any man is of sound mind; it is for the defence to establish inferentially that he was not of sufficient soundness of mind, at the time that he did the actions charged, to be criminally responsible. On the other hand, every person is to be presumed to be innocent of the actions charged against him until it is proved to the satisfaction of the jury beyond any reasonable doubt that he committed them.

You will see, gentlemen, that the presumptions are not of equal strength. The criminal law requires that, when a crime is charged, the things which constitute that crime shall be proved to the complete satisfaction of the jury; that they shall be so satisfied that those things were done that they have no reasonable doubt about it. On the other hand, when that is proved, and the jury turn from the consideration of the question whether the things which constitute the crime were done to the question whether the man who did them was criminally responsible for his actions or was not, because of unsoundness of mind at the moment, it is necessary for the accused person to make out positively, upon a balance of probability, that he was not criminally responsible, and that he was not of such a mental condition at that time as to be criminally responsible. He has not got to remove all doubt from your minds. He, or rather his counsel, has merely to make it appear to you as more probable on the whole that that was the state of his mind at the time he did the things charged, than otherwise.

You will therefore see that the first questions in this case for your consideration are these: Did the prisoner administer strychnine to his infant son with the intention of causing his death; and, did its death result from his so doing? Unless you are so satisfied, beyond reasonable doubt, that he did administer strychnine to the child with the intention of causing his death, and that death resulted from strychnine, then it is your simple duty to return a plain verdict of not guilty, because he would not have done the things which constitute murder.

Probably you will have no difficulty at all in arriving at the conclusion that the prisoner did administer strychnine to his son with the intention of causing its death, and that death did result from the strychnine. I am bound to add that it is entirely for you to give effect to that evidence, and, if you think the evidence is not so strong as Ind the Crown Prosecutor have suggested it is, you will stop the case at that stage. You will not go any further and consider the question of insanity.

[His Honour referred to the facts material to the commission of the acts constituting the crime and proceeded :--]

The facts, as I have said, appear to me to be clear, but if you disagree with that, you should give effect to your disagreement by finding the prisoner not guilty. The responsibility is yours, and not mine. If, on the contrary, you are satisfied beyond reasonable doubt, to the exclusion of all doubt, of these three matters – (1) that he did administer strychnine to the child; (2) that he did so with the intention of killing it; and 3) that the child's death did result from that administration – then you will turn and proceed to consider whether, at that particular time when he did those things, his state of mind was such as to make him criminally responsible for his act. That means, has it been made out to your reasonable satisfaction that, at the time, the prisoner’s faculties were so disordered that he is not in law criminally responsible for what he did. If you form the opinion that his faculties were so disordered that he is not criminally responsible, you will find a verdict of not guilty on the ground that the prisoner was insane at the time the offence was committed. You do not find him guilty but insane, as they do in some British countries. According to the law in this country the technical verdict is such a case is: Not guilty on the ground of insanity at the time of the commission of the offence charged. It is your function specifically to state that ground for your verdict of not guilty, because the legal consequences are quite different from those which follow a plain verdict of not guilty on the ground that the prisoner did not do the things charged. If you think it is not proved that the prisoner poisoned his child and brought about his death, your verdict, of course, will be simply not guilty, and he will be completely free. If, however, you think that he did the things charged against him, but that, at the time, his mind was so disordered that he could not be held responsible, then you will find him not guilty on the ground of insanity at the time of the offence charged.

There is a legal standard of disorder of mind which is sufficient to afford a ground of irresponsibility for crime, and a ground for your finding such a verdict as I have indicated. It is my duty to explain that standard to you. It is plain from what passed the witness-box this morning, when Dr. Henry was giving evidence, that the legal standard is a matter which he himself wished to discuss, but I prevented him, and kept him to his medical function. In my judgment, from remarks which have been made at the Bar in the course of speeches, it appears that some difference of opinion between learned counsel exists as to what that legal standard is. You will take my explanation of it, and disregard the attempts which have been made elsewhere to explain it, because mine is the responsibility of laying down what the law is. Yours is the responsibility of applying it to the facts.

Before explaining what that standard actually is, I wish to draw your attention to some general considerations affecting the question of insanity in the criminal law jn the hope that by doing so you may be helped to grasp what the law prescribes. The purpose of the law in punishing people is to prevent others from committing a like crime or crimes. Its prime purpose is to deter people from committing offences. It may be that there is an element of retribution in the criminal law, so that when people have committed offences the law considers that they merit punishment, but its prime purpose is to preserve society from the depredations of dangerous and vicious people. Now, it is perfectly useless for the law to attempt, by threatening punishment, to deter people from committing crimes if their mental condition is such that they cannot be in the least influenced by the possibility or probability of subsequent punishment; if they cannot understand what they are doing or cannot understand the ground upon which the law proceeds. The law is not directed, as medical science is, to curing mental infirmities. The criminal law is not directed, as the civil law of lunacy is, to the care and custody of people of weak mind whose personal property may be in jeopardy through someone else taking a hand in the conduct of their affairs and their lives. This is quite a different thing from the question, what utility there is in the punishment of people who, at a moment, would commit acts which, if done when they were in sane minds, would be crimes. What is the utility of punishing people if they be beyond the control of the law for reasons of mental health? In considering that, it will not perhaps, if you have ever reflected upon the matter, have escaped your attention that a great number of people who come into a Criminal Court are abnormal. They would not be there if they were the normal type of average everyday people. Many of them are very peculiar in their dispositions and peculiarly tempered. That is markedly the case in sexual offences. Nevertheless, they are mentally quite able to appreciate what they are doing and quite able to appreciate the threatened punishment of the law and the wrongness of their acts, and they are held in check by the prospect I of punishment. It would be very absurd if the law were to withdraw that check on the ground that they were somewhat different from their fellow creatures in mental make-up or texture at the very moment when the check is most needed. You will therefore see that the law, in laying down a standard of mental disorder sufficient to justify a jury in finding a prisoner not guilty on the ground of insanity at the moment of the offence, is addressing itself to a somewhat difficult task. It is attempting to define what are the classes of people who should not be punished although they have done actual things which in others would amount to crime. It is quite a different object to that which the medical profession has in view or other departments of the law have in view in defining insanity for the purpose of the custody of a person's property, capacity to make a will, and the like. With that explanation I shall tell you what that standard is.

The first thing which I want you to notice is that you are only concerned with the condition of the mind at the time the act complained of was done. That is the critical time when the law applies to the man. You are not concerned, except for the purpose of finding out how he stood at that moment, what his subsequent condition was or what his previous condition was. He may have been sane before and he may have been sane after, but if his mind were disordered at the time to the required extent, then he should be acquitted on the ground of insanity at the time he committed the offence. It is helpful in finding out how he was at the time to find out how we has before and after. It is merely because it is helpful that we go into it in this case, not because it is decisive.

The next thing I wish to emphasize is that his state of mind must have been one of disease, disorder or disturbance. Mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control, and impulsiveness, are quite different things from what I have attempted to describe as a state of disease or disorder or mental disturbance arising from some infirmity, temporary or of long standing. If that existed it must then have been of such a character as to prevent him from knowing the physical nature of the act he was doing or of knowing that what he was doing was wrong. You will see that I have mentioned two quite different things. One state of mind is that in which he is prevented by mental disorder from knowing the physical nature of the act he is doing; the other is that he was prevented from knowing that what he was doing was wrong. The first relates to a class of case to which so far as I am concerned I do not think this case belongs. But again, that is my opinion of a matter of fact and it is for you to for you to form your opinion upon it. In a case where a man intentionally destroys life he may have so little capacity for understanding the nature of life and the destruction of life, that to him it is no more than breaking a twig or destroying an inanimate object. In such a case he would not know the physical nature of what he was doing. He would not know the implications and what it really amounted to. In this case, except for the prisoner's own statement from the dock that after a certain time he remembered nothing of what he did, there seems to be nothing to support the view that this man was in such a condition that he could not appreciate what death amounted to or that he was bringing it about or that he was destroying life and all that is involved in the destruction of life. It is for you to form a conclusion upon that matter, but I suggest to you that the evidence of what he said to the police when he was found after he had given the poison to the child and was about, apparently, to administer it to himself, shows that he understood the nature of life and death and the nature of the act he was doing in bringing it about. But you are at liberty to take into account that he said he knows nothing of what he did at that time. If you form the conclusion that notwithstanding the evidence which I have mentioned the mental disorder of this man was such that he could not appreciate the physical thing he was doing and its consequences, you will acquit him on the ground of insanity at the time he did the thing charged.

The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act. That is the issue, the real question in this case. Was his state of mind of that character? I have used simple expressions, but when you are dealing with the unseen workings of the mind you have to come to close quarters with what you are speaking about, and it is very difficult to be quite clear as to what is meant in describing mental conditions. I have used the expression "disease, disorder or disturbance of the mind." That does not mean (as you heard from the doctor's replies this morning to certain questions I asked him) that there must be some physical deterioration of the cells of the brain, some actual change in the material, physical constitution of the mind, as disease ordinarily means when you are dealing with other organs of the body where you can see and feel and appreciate structural changes in fibre, tissue and the like. You are dealing with a very different thing- with the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder. Then I have used the expression "know," "knew that what he was doing was wrong." We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong?

If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by “wrong”? What is meant by wrong is wrong having regard to the everyday standards of reasonable people. If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged. In considering these matters from the point of view of fact you must be guided by his outward actions to a very large extent. The only other matter which can help you really is the medical opinion. I think the evidence may be described as his outward conduct and the medical opinion. It is upon this you must act. The medical opinion included explanations of the course of mental conditions in human beings generally.

[His Honour reviewed the circumstances affecting the question of the prisoner's state of mind at the time of the commission of the acts charged and the medical evidence and proceeded:~]

In conclusion I go back to what I consider the main question of the case and it is whether you are of the opinion that at the stage of administering the poison to the child the man whom you are trying had such a mental disorder or diseased intelligence at that moment that he was disabled from knowing that it was wrong act to commit in the sense that ordinary reasonable men understand right and wrong and that he was disabled from considering with some degree of composure and reason what he was doing and its wrongness. If you answer that question in his favour you will find him not guilty on the ground of insanity at the time of the commission of the offence charged. If you answer the question against him, and you have already formed a conviction on that question, that he committed the actual act which constituted murder with the necessary intention of bringing about death, you will find him guilty of murder. I repeat that the burden of establishing to your complete satisfaction to the exclusion of all reasonable doubt that he did all the acts with the requisite intention of killing which constitutes murder and brought about death, is upon the Crown. I think upon the evidence you will have little difficult on that point.

The burden of establishing to your reasonable satisfaction, not to the exclusion of all doubt but on the balance of probability, that his state of mind was one which I have described is upon the prisoner. If you are in the condition of mind of being quite unable to answer that question it will be your duty then to find him guilty, assuming that you have arrived at the conclusion that you are convinced that the act, if that of a sane man, would amount to murder. Three verdicts upon this view of the case are open to you. You may find him completely not guilty, which would mean that you are not satisfied beyond reasonable doubt that he caused the death but at the time his intelligence was so disordered that he was in such a state that he was not criminally responsible for his act. 
Finally, you may find him guilty of murder.

You will now retire to consider your verdict.

The jury returned the following verdict :-
Not guilty on the ground of insanity at the time of commission of the act charged.

Solicitor for the Crown, W. H. Sharwood, Crown Solicitor for the Commonwealth.
Solicitor for the prisoner, Felix Mitchell, Cooma.

DANIEL M'NAGHTEN'S CASE.

May 26, June 19, 1843.

[Mews' Dig. i. 349; iv. 1112. S.C. 8 Scott N.R. 595; 1 C. and K. 130; 4 St. Tr. N.S, 847. The rules laid down in this case have been accepted in the main as an authoritative statement of the law (cf. Beg. v. Townley, 1863, 3 F. and F. 839; Beg. v. Southey, 1865, 4 F. and F. 864; Beg. v. Leigh, 1866, 4 F. and F. 919). But they have been adversely criticised both by legal and medical text writera (see 2 Steph. Hist Crim. Law, 124-186; Mayne Ind. Crim. Law (ed. 1896), 368), have been rejected by many of the American States (see e.g. Parsons v. State, 1887, 81 Ala. 577), and frequently receive a liberal interpretation in England. On point as to questions to the Judges, see note to London and Westminster Bank Case, 2 Cl. and F. 191.]

Murder-Evidence-lnsanity.

The House of Lords has a right to require the Judges to answer abstract questions of existing law (see London and Westminster Bank Case, ante [2 Cl. and F.], p. 191 [and note thereto].

Notwithstanding a party accused did an act, which was in itself criminal, under the influence of insane delusion, with a view of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable if he knew at the time that he was acting contrary to law.

That if the accused was conscious that the act was one which he ought not to do; and if the act was at the same time contrary to law, he is punishable. In all cases of this kind the jurors ought to be told that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction: and that to establish a defence on the ground of insanity, it must be clearly proved that at the time of commiting the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or as not to know that what he was doing was wrong.

That a party labouring under a partial delusion must be considered in the same situation, as to responsibility, as if the facts, in respect to which the delusion exists, were real.

That where an accused person is supposed to be insane, a medical man, who has been present in Court and heard the evidence, may be asked, as a matter of science, whether the facts stated by the witnesses, supposing them to be true, show a state of mind incapable of distinguishing between right and wrong.

The prisoner had been indicted for that he, on the 20th day of January 1843, at the parish of Saint Martin in the Fields, in the county of Middlesex, and within the jurisdiction of the Central Criminal Court, in and upon one Edward Drummond, feloniously, wilfully, and of his malice aforethought, did make an assault; and that the said Daniel M'Naghten, a certain pistol of the value of 20s., loaded and [201] charged with gunpowder and a leaden bullet (which pistol he in his right hand had and held), to, against and upon the said Edward Drummond, feloniously, wil-fully, and of his malice aforethought, did shoot and discharge; and that the said Daniel M'Naghten, with the leaden bullet aforesaid, out of the pistol aforesaid, by force of the gunpowder, etc., the said Edward Drummond, in and upon the back of him the said Edward Drummond, feloniously, etc. did strike, penetrate and wound, giving to the said Edward Drummond, in and upon the back of the said Edward Drummond, one mortal wound, etc., of which mortal wound the said E. Drummond languished until the 25th of April and then died; and that by the means aforesaid, lie the prisoner did kill and murder the said Edward Drummond. The prisoner pleaded Not guilty. 

Evidence having been given of the fact of the shooting of Mr .Drummond, and of his death in consequence thereof, witnesses were called on the part of the prisoner, to prove that he was not, at the time of committing the act, in a sound state of mind. The medical evidence was in substance this: That persons of otherwise sound mind, might be affected by morbid delusions: that the prisoner was in that condition: that a person so labouring under a morbid delusion, might have a moral perception of right and wrong, but that in the case of the prisoner it was a delusion which carried him away beyond the power of his own control, and left him no such perception; and that he was not capable of exercising any control over acts which had connexion with his delusion: that it was of the nature of the disease with which the prisoner was affected, to go on gradually until it had reached a climax, when it burst forth with irresistible [202] intensity: that a man might go on for years quietly, though at the same time under its influence, but would all at once break out into the most extrava- gant and violent paroxysms.

Some of the witnesses who gave this evidence, had previously examined the prisoner: others had never seen him till he appeared in Court, and they formed their opinions on hearing the evidence given by the other witnesses.

Lord Chief Justice Tindal (in his charge): -The question to be determined is, whether at the time the act in question was committed, the prisoner had or had not the use of his understanding, so as to know that he was doing a wrong or wicked act. If the jurors should be of opinion that the prisoner was not sensible, at the time he committed it, that he was violating the laws both of God and man, then he would be entitled to a verdict in his favour: but if, on the contrary, they were of opinion that when he committed the act he was in a sound state of mind, then their verdict must be against him. 

Verdict, Not guilty, on the ground of insanity.

This verdict., and the question of the nature and extent of the unsoundness of mind which would excuse the commission of a felony of this sort, having been made the subject of debate in the House of Lords (the 6th and 13th March 1843 ; see Hansard's Debates, vol. 67, pp. 288, 714), it was determined to take the opinion of the Judges on the law governing such cases. Accordingly, on the 26th of May, all the Judges attended their Lordships, but no questions were then put.

On the 19th of June, the Judges again attended the House of Lords; when (no argument having been [203] had) the following questions of law were propounded to them:-

1st. What is the law respecting alleged crimes committed by persons afflicted with insane delusion, in respect of one or more particular subjects or persons: as, for in- stance, where at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit?

2d. What are the proper questions to be submitted to the jury, when a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and in-sanity is set up as a defence?

3d. In what terms ought the question to be left to the jury, as to the prisoner's state of mind at the time when the act was committed?

4th. If a person under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby excused?

5th. Can a medical man conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act, that he was acting contrary to law, or whether he was labouring under any and what delusion at the time?

[204] Mr. Justice Maule :--I feel great difficulty in answering the questions put by your Lordships on this occasion :-First, because they do not appear to arise out of and are not put with reference to a particular case, or for a particular purpose, which might explain or limit the generality of their terms, so that full answers to them ought to be applicable to every possible state of facts, not inconsistent with those assumed in the questions: this difficulty is the greater, from the practical experience both of the bar and the Court being confined to questions arising out of the facts of particular cases :-Secondly, because I have heard no argument at your Lordships' bar or elsewhere, on the subject of these questions; the want of which I feel the more, the greater are the number and extent of questions which might be raised in argu- ment:-and Thirdly, from a fear of which I cannot divest myself, that as these ques- tions relate to matters of criminal law of great importance and frequent occurrence, the answers to them by the Judges may embarrass the administration of justice, when they are cited in criminal trials. For these reasons I should have been glad if my learned brethren would have joined me in praying your Lordships to excuse us from answering these questions; but as I do not think they ought to induce me to ask that indulgence for myself individually, I shall proceed to give such answers as I can, after the very short time which I have had to consider the questions, and under the difficulties I have mentioned; fearing that my answers may be as little satisfactory to others as they are to myself.

The first question, as I understand it, is, in effect, What is the law respecting the alleged crime, when at the time of the commission of it, the accused knew he was acting contrary to the law, but did the act [205] with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit?-If I were to understand this question according to the strict meaning of its terms, it would require, in order to answer it, a solution of all questions of law which could arise on the circumstances stated in the question, either by explicitly stating and answering such questions, or by stating some principles or rules which would suffice for their solution. I am quite unable to do so, and, indeed, doubt whether it be possible to be done; and therefore request to be permitted to answer the question only so far as it comprehends the question, whether a person, circumstanced as stated in the question, is, for that reason only, to be found not guilty of a crime respecting which the question of his guilt has been duly raised in a criminal proceeding? and I am of opinion that he is not. "'There is no law, that I am aware of, that makes persons in the state described in the question not re.:ponsible for their criminal acts. To render a person irresponsible for crime on account of unsoundness of mind, the unsoundness should, according to the law as it has long been understood and held, be such as rendered him incapable of knowing right from wrong. The terms used in the question cannot be said (with reference only to the usage of language) to be equivalent to a description of this kind and degree of unsoundness of mind. If the state described in the question be one which involves or is necessarily connected with such an unsoundness, this is not a matter of law but of physiology, and not of that obvious and familiar kind as to be inferred without proof. 

Second, the questions necessarily to be submitted to the jury, are those questions of fact which are [206] raised on the record. In a criminal trial, the question com- monly is, whether the accused be guilty or not guilty: but, in order to assist the jury in coming to a right conclusion on this necessary and ultimate question, it is usual and proper to submit such subordinate or intermediate questions, as the course which the trial has taken may have made it convenient to direct their attention to. What those questions are, and the manner of submitting them, is a matter of discretion for the Judge: a discretion to be guided by a consideration of all the circumstances at- tending the inquiry. In performing this duty, it is sometimes necessary or con- venient to inform the jury as to the law; and if, on a trial such as is suggested in the question, he should have occasion to state what kind and degree of insanity would amount to a defence, it should be stated conformably to what I have mentioned in my answer to the first question, as being, in my opinion, the law on this subject.

Third, there are no terms which the Judge is by law required to use. They should not be inconsistent with the law as above stated, but should be such as, in the dis- cretion of the Judge, are proper to assist the jury in coming to a right conclusion as to the guilt of the accused.

Fourth, the answer which I have given to the first question, is applicable to this. Fifth, whether a question can be asked, depends, 'not merely on the questions of fact raised on the record, but on the course of the cause at the time it is proposed to ask it; and the state of an inquiry as to the guilt of a person charged with a crime, and defended on the ground of insanity, may be such, that such a question as either of those suggested, is proper to be asked and answered, though the witness has [207] never seen the person before the trial, and though he has merely been present and heard the witnesses: these circumstances, of his never having seen the person before, and of his having merely been present at the trial, not being necessarily suffi- cient, as it seems to me, to exclude the lawfulness of a question which is otherwise lawful; though I will not say that an inquiry might not be in such a state, as that these circumstances should have such an effect.

Supposing there is nothing else in the state of the trial to make the questions suggested proper to be asked and answered, except that the witness had been present and heard the evidence; it is to be considered whether that is enough to sustain the question. In principle it is open to this objection, that as the opinion of the witness is founded on those conclusions of fact which he forms from the evidence, and as it does not appear what those conclusions are, it may be that the evidence he gives is on such an assumption of facts, as makes it irrelevant to the inquiry. But such ques- tions have been very frequently asked, and the evidence to which they are directed has been given, and has never, that I am aware of, been successfully objected to. Evi- dence, most clearly open to this objection, and on the admission of which the event of a most important trial probably turned, was received in the case of The Queen v. M'Naghten, tried at the Central Criminal Court in March last, before the Lord Chief Justice, Mr. Justice Williams, and Mir. Justice Coleridge, in which counsel of the highest eminence were engaged on both sides; and I think the course and practice of receiving such evidence, confirmed by the very high authority of these Judges, who not only received it, but left it, as I understand, to the jury, without any remark derogating from its [208] weight, ought to be held to warrant its reception, notwith- standing the objection in principle to which it may be open. In cases even where the course of practice in criminal law has been unfavourable to parties accused, and entirely contrary to the most obvious principles of justice and humanity, as well as those of law, it has been held that such practice constituted the law, and could not be altered without the authority of Parliament.

Lord Chief Justice Tindal :-ly Lords, Her Majesty's Judges (with the exception of Mr. Justice Maule, who has stated his opinion to your Lordships), in answering the questions proposed to them by your Lordships' House, think it right, in the first place, to state that they have forborne entering into any particular discussion upon these questions, from the extreme and almost insuperable difficulty of applying those answers to cases in which the facts are not brought judicially before them. The facts of each particular case must of necessity present themselves with endless variety, and with every shade of difference in each case; and as it is their duty to declare the law upon each particular case, on facts proved before them, and after hearing argument of counsel thereon, they deem it at once impracticable, and at the same time danger- ous to tbe administration of justice, if it were practicable, to attempt to make minute applications of the principles involved in the answers given by them to your Lord- ships' questions.

They have therefore confined their answers to the statement of that which they hold to be the law upon the abstract questions proposed by your Lordships; and as they deem it unnecessary, in this peculiar case, to deliver their opinions seriatim, and as all concur in [209] the same opinion, they desire me to express such their unanimous opinion to your Lordships.

The first question proposed by your Lordships is this: "What is the law respect- ing alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons: as, for instance, where at the time of the commission of the alleged crime the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of re- dressing or revenging some supposed grievance or injury, or of producing some sup- posed public benefit ?"

In answer to which question, assuming that your Lordships' inquiries are con- fined to those persons who labour under such partial delusions only, and are not in other respects insane, we are of opinion that, notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redress- ing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law; by which expression we understand your Lordships to mean the law of the land.

Your Lordships are pleased to inquire of us, secondly, "What are the proper ques- tions to be submitted to the jury, where a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defence?" And, thirdly, "In what terms ought the question to be left to the jury as to the prisoner's state of mind at the time when [210] the act was committed? " And as these two questions appear to us to be more conveniently answered together, we have to submit our opinion to be. that the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be respon- sible for his crimes,until the contrary be proved to their satisfaction ; and that to estab- lish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not, know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused at the time of doing the act knew the difference between right and wrong: which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally and in the abstract, as when put with reference to the party's knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a convic- tion ; whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was con- scious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course therefore [211] has been to leave the question to the jury, whether the party accused had a suffi- cient degree of reason to know that he was doing an act that was wrong: and this course we think is correct, accompanied with such observations and explanations as the circumstances of each particular case may require.

The fourth question which your Lordships have proposed to us is this :-"If a person under an insane delusion as to existing facts, commits an offence in conse- quence thereof, is he thereby excused?" To which question the answer must of course depend on the nature of the delusion: but, making the same assumption as we did before, namely, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsi- bility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that-the deceased had in- flicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.

The question lastly proposed by your Lordships is :-" Can a medical man con- versant with the disease of insanity, who never saw the prisoner previously tothe trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commis- sion of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act that he was acting contrary to law, or whether he was labouring under any and [212] what delusion at the time?" In answer thereto, we state to your Lordships, that we think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide, and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right.

Lord Brougham:- My Lords, the opinions of the learned Judges, and the very able manner in which they have been presented to the House, deserve our best thanks. One of the learned Judges has expressed his regret that these questions were not argued by counsel. Generally speaking, it is most important that in questions put for the consideration of the Judges, they should have all that assistance which is afforded to them by an argument by counsel: but at the same time, there can be no doubt of your Lordships' right to put, in this way, abstract questions of law to the Judges, the answer to which might be necessary to your Lordships in your legislative capacity. There is a precedent for this course, in the memorable instance of Air. Fox's Bill on the law of libel; where, before passing the Bill, this House called on the Judges to give their opinions on what was the law as it then existed.

Lord Campbell :- My Lords, I cannot avoid express-[213]-ing my satisfaction, that the noble and learned Lord on the woolsack carried into effect his desire to put these questions to the Judges. It was most fit that the opinions of the Judges should be asked on these matters, the settling of which is not a mere matter of speculation; for your Lordships may be called on, in your legislative capacity, to change the law; and before doing so, it is proper that you should be satisfied beyond doubt what the law really is. It is desirable to have such questions argued at the bar, but such a course is not always practicable. Your Lordships have been reminded of one prece-dent for this proceeding, but there is a still more recent instance; the Judges having been summoned in the case of the Canada Reserves, to express their opinions on what was then the law on that subject. The answers given by the Judges are most highly satisfactory, and will be of the greatest use in the administration of justice. 

Lord Cottenham :- My Lords, I fully concur with the opinion now expressed, as to the obligations we owe to the Judges. It is true that they cannot be required to say what would be the construction of a Bill, not in existence as a law at the moment at which the question is put to them; but they may be called on to assist your Lord- ships, in declaring their opinions upon abstract questions of existing law.

Lord Wynford :- My Lords, I never doubted thatyour Lordships possess the power to call on the Judges to give their opinions upon questions of existing law, proposed to them as these questions have been. I myself recollect, that when I had the honour to hold the office of Lord Chief Justice of the Court of [214] Common Pleas, I com- municated to the House the opinions of the Judges on questions of this sort., framed with reference to the usury laws. Upon the opinion of the Judges thus delivered to the House by me, a Bill was founded, and afterwards passed into a law.

The Lord Chancellor :- My Lords, I entirely concur in the opinion given by my noble and learned friends, as to our right to have the opinions of the Judges on ab- stract questions of existing law; and I agree that we owe our thanks to the Judges, for the attention and learning with which they have answered the questions now put to them.

—N.J.—

STATE OF NEW JERSEY, Plaintiff-Appellant, 

v.

BOYCE SINGLETON, JR., Defendant-Respondent.

SUPREME COURT OF NEW JERSEY

No. 067756

Argued January 31, 2012 – Decided July 30,2012   

On certification to the Superior Court,   Appellate Division, whose opinion is   reported at 418 N.J. Super. 177 (2011).   

Frank J. Ducoat, Deputy Attorney General,   argued the cause for appellant (Jeffrey S.   Chiesa, Attorney General of New Jersey,   attorney).   

John W. Douard, Assistant Deputy Public   Defender, argued the cause for respondent   (Joseph E. Krakora, Public Defender,   attorney).  

JUSTICE LaVECCHIA delivered the opinion of the Court.

In New Jersey, we adhere to the general proposition that a defendant who has the mental capacity to know basic societal mores that distinguish objectively between right and wrong is legally responsible for his criminal conduct.  See State v. Sikora, 44 N.J. 453, 470 (1965).  Mental illness does not in and of itself eliminate moral blameworthiness under the test for criminal insanity enshrined in the Code of Criminal Justice 2  (Code).  See N.J.S.A. 2C:4-1.  As our Model Jury Charge illuminates for jurors, “[t]he law adopts a standard of its own as a test of criminal responsibility, a standard not always in harmony with the views of psychiatrists.”  Model Jury Charges (Criminal), § 2C:4-1 Insanity (Oct. 17, 1988).  And, moreover, jurors are informed that the law does not require that the defendant actually consider the wrongness of his act when accomplishing the deed.  Rather,  

[t]he question is not whether the defendant, when (he/she) engaged in the deed, in fact actually thought or considered whether the act was right or wrong, but whether defendant had sufficient mind and understanding to have enabled (him/her) to comprehend that it was wrong if defendant had used (his/her) faculties for that purpose.

[Ibid.] 

Thus, the test hinges on a defendant’s general knowledge of society’s mores and objective expectations about behavior.  In State v. Worlock, 117 N.J. 596 (1990), a narrow caveat was added for the delusional defendant who, at the time of a homicidal act, affirmatively acts under a direct command from God to kill the victim.  This appeal raises an issue concerning Worlock’s applicability.   

In September 2005, defendant Boyce Singleton Jr. killed his pregnant girlfriend, Michelle Cazan.  He was indicted and tried in June 2008, on a charge of first-degree murder and other 3 related offenses, including tampering with evidence and hindering.  Defendant has never disputed that he killed Cazan.  His defense at trial was keyed to whether he should be found not guilty by reason of insanity.  Afflicted with schizoaffective disorder, defendant had developed the delusional religious belief that he was in a form of communication with God and that he was authorized to kill those who violated “God’s word.” Defendant’s mental illness was the centerpiece of the parties’ summations and the trial court included the model charge on the insanity defense, which refers to the defendant’s ability to comprehend that his action is wrong, in its instructions to the jury.  Defendant interposed no objection to the insanity charge’s content.

Defendant’s insanity defense proved unsuccessful as the  jury convicted him of murder, as well as the other charged  offenses.  In a motion for a new trial, defendant claimed for the first time that the jury should have been provided with a variant of the insanity-defense jury charge informing the jury  that a defendant can be found not guilty by reason of insanity  if he lacks the capacity to understand that his actions are  morally wrong, even if he understands that they are legally  wrong.  In Worlock, supra, we recognized in dicta that such a  jury charge might be necessary in cases where a defendant claims  to have been compelled by a “command from God.”  117 N.J. at 4611; cf. State v. Winder, 200 N.J. 231 (2009) (rejecting  Worlock’s applicability to facts of case).  Finding no evidence  that defendant acted under compulsion of a command from God when  he murdered Cazan, the trial court concluded that circumstances  warranting a “Worlock” variation to the model charge were not  present.  The court denied the motion for a new trial and  imposed sentence on September 12, 2008.

Defendant appealed and a panel of the Appellate Division reversed the conviction and remanded for a new trial based on finding the insanity-defense jury charge to have been incomplete.  State v. Singleton, 418 N.J. Super. 177, 204-05 (App. Div. 2011).  

The State filed a petition for certification, which was granted.  207 N.J. 188 (2011).  We now reverse.

I.

A. Background   

Defendant’s expert in forensic psychology and the State’s   expert agree that defendant suffers from schizoaffective   disorder.^[1] At trial defendant produced lay witnesses –- five family members and one friend –- and testified on his own behalf  to provide insight into his mental illness prior to and during the events related to Cazan’s death.  That testimony showed that defendant had developed a set of delusional religious beliefs derived from his perspective on scripture.  Importantly, he believes that he has an obligation to kill sinners, especially sinners who attempt to deter him from honoring God’s word according to his strongly held, personal interpretation of the Bible’s Old Testament.  

Defendant’s mental illness significantly manifested itself during his relatively brief period of attendance at college.  In 2003, he turned to religious study for guidance, discipline, and a means of control over his life, but soon developed a preoccupation with the Bible and God and became obsessed with the Old Testament.  His interpretation of scripture developed into a delusional system that, the experts agree, distorts his logical reasoning.  For example, defendant came to believe that money was the root of all evil because people idolized it, rather than God.  On one occasion, his distaste for money led him to choose imprisonment for failure to pay a court fine over violating his belief in the wrongness of using money.  His mother obtained his release by paying the fine herself.  

According to defendant, over time, he became convinced that he was a “soldier” for God.  He testified that he came to believe that God communicates with him, although he does not 6  claim to hear a distinct voice speaking or commanding him.  Rather, he receives messages or communications from God while asleep.^[2]  As he explained in his testimony, and in a statement to police after Cazan’s death, he felt a general obligation to kill sinners who did not comport themselves in accordance with his beliefs about God’s expectations, once he explained those expectations to them.  Indeed, in 2005, not long before Cazan’s murder, defendant, who had moved back into his parents’ home, told his older sister, Lakeisha, “if I didn’t love you so much, you would have already been dead, because the voices told me to kill all of you all because you’re sinning.” 

On another occasion, during the spring of 2005, defendant threatened the gay friend of his younger sister Shakia, who was staying at their parents’ home.  Defendant claimed that he “heard something say to me go downstairs and kill him because he was homosexual.”  Shakia’s friend left the home without being physically harmed, but by July 2005, defendant’s beliefs and behaviors had become too extreme for his mother and siblings. Although defendant had not yet acted on his beliefs, he was asked to leave the home.^[3]

On July 27, 2005, he moved in with Michelle Cazan, a friend of Shakia and a participant in the same bible studies group as defendant’s mother and Shakia.  The relationship became intimate within one week’s time and, on September 12, 2005, Cazan told defendant that a home pregnancy test had confirmed that she was pregnant.  Defendant killed her the next day.  We turn next to the murder and subsequent events. 

B. Cazan’s murder

On September 13, 2005, while Cazan was at work, defendant went with a friend to an Air Force and Army recruiting center to discuss enlistment, which he explained was motivated by a desire to help his “family,” meaning his parents and siblings who were struggling, not Cazan.  He claimed that he trusted in God to look after Cazan and the baby that was on the way.  Still, he was conflicted about enlisting even to help his parents and siblings because he would be working for money, which would be contrary to his religious beliefs.  

That afternoon defendant picked up Cazan from work later than she expected, causing her to miss an appointment she had  scheduled with an organization that might have provided a source of employment for defendant.  He knew that she was not happy about missing the appointment, but testified that they did not argue about it.  However, there was tension between the two and they had a discussion during which he considered leaving Cazan’s vehicle, but did not.  Instead, he agreed to accompany her on a visit to her hometown of East Rutherford to see places that were important to her, including her brother’s gravesite.  

During the trip north, the two quarreled over their future.  Cazan was concerned about his ability to provide for the baby.  As for defendant, he had reached the conclusion that he would not enlist in military service because he was uncomfortable with the idea of serving “a God other than my God” by earning “evil” money.  And, he became increasingly disturbed over Cazan’s change of heart from earlier discussions in which they had talked about going “into the woods” and living apart from a money-based civilization.  He felt she had turned from the religious beliefs and principles he thought they shared.  He grew more upset with Cazan during that conversation because he felt as though she had not fully adopted his religious beliefs and, worse, she was driving a wedge between him and God.  He testified that he began to view Cazan “[a]s a prostitute,” because “she was prostituting herself to another God.”  Defendant said he “didn’t trust her,” and that he “didn’t want 9  to be around her . . . [or] with her anymore.”  Moreover, on arriving in East Rutherford, defendant did not respond favorably as Cazan showed him the area.  He said he became “enraged” by her “stories of mob activity” that allegedly had occurred in the vicinity.  He regarded her as “bragging” about it, which offended him.

At approximately 10:30 p.m., the two arrived home at Cazan’s condominium in Mansfield.  Defendant claims that, at this point, he was very upset.  After using the first-floor bathroom, he went upstairs to the bedroom where Cazan was and asked her to give him the keys to her BMW.  She refused.  He admitted at trial that had she given him the keys he would have left.  However, when she would not give him the car keys, he pulled a revolver from his waistband and shot her four times, emptying the gun.  One bullet went through her face and out behind her ear, another entered her chest and passed through her rib cage, chest cavity, and lungs, exiting through her lower back.  Forensic evidence showed that Cazan was shot twice more in the back while on her hands and knees.  One bullet traveled through her trachea and exited through her neck.  Cazan began to choke on her own blood.  Defendant said he “didn’t want her to suffer,” so he stabbed her, four times, in the chest and abdomen, one of which pierced her lung.  The stab wounds were between three and six inches in depth.  She died within minutes.

Defendant took the knife, but left behind the handgun, and drove Cazan’s car to the home of his friend William Britt, where both William and his brother John were.  There he washed his hands of blood and gunshot residue and changed his clothes.  During the next few hours, defendant and his friends drank alcohol and smoked marijuana.  Although defendant told William and John that he had killed Cazan, neither believed him.  

Early the next morning, defendant left Cazan’s car around the corner from Britt’s home in Trenton and walked to Morrisville, Pennsylvania where his parents lived.  Along the way, he threw the knife into a canal.  He did so because he said he had learned from “movies” that “you’re supposed to get rid of the murder weapon.”  According to defendant, at that time, he “planned on running” and “kill[ing] everybody . . . until [he] got killed.”  However, when he arrived in Morrisville at about 2:00 a.m., he met his older sister Lakeisha also arriving home and asked her to drive him to Cazan’s house.  According to Lakeisha, he told her that he had shot and stabbed Cazan, that she was dead, and that he had left the gun behind at the house.  Lakeisha testified that during this trip, defendant had “many rambling conversations” in which he was not talking directly to her:  “Whoever he was talking to or whatever he was hearing, he was responding to.  But the conversation wasn’t for me.”  At Cazan’s home, he asked Lakeisha to let him out in the back of the home and to wait for him in the car.

According to defendant, after determining that no police or others were in or around Cazan’s home, he went inside, retrieved his gun, wiped down the door handles, and otherwise attempted to clean the blood splatter.  He placed the gun and the cleaning materials he had used in a garbage bag and left, returning to Lakeisha’s car.  He asked her to take him to Britt’s home.  Along the way she convinced him to go instead to their parents’ home in Morrisville.  There he told his father what he had done and fled the area, intending to go to a family member’s home in North Carolina, along the way retrieving his duffle bag from Britt’s home.  In his later statements he explained that the police were his enemy because, if he was captured, he could not serve God.  However, when he reached Baltimore, he abandoned his plan and returned home after talking with his mother.  

Arriving back at his parents’ home, he told his family that he planned to turn himself in but wanted to “hold Cazan” before doing so.  So, on September 15, he drove Cazan’s BMW to her home.  His brother, Damon, rode with him, and Lakeisha and his mother followed in a separate car.  Damon testified that during the trip defendant “was talking to someone” other than him.  Defendant entered Cazan’s home alone, repositioned her body and clothing, and placed a stuffed animal, sprayed with perfume, at her side.  Concerned by the amount of time that had elapsed, Damon entered the condo and said that he found defendant holding Cazan’s body, “trying to wake her [and] telling her [to] wake up.”  Meanwhile, defendant’s mother had arranged for the police to be contacted by one of Cazan’s neighbors.

Mansfield Patrolman Jason Abadia responded and, after backup arrived, he arrested defendant.  Abadia testified that defendant stated, “I killed her.  I killed her.  Don’t leave her like that.  Cover her up.  I killed her.”  Abadia read defendant his Miranda^[4] rights and defendant again stated that he had killed Cazan, explaining also what he had done with the knife and gun.  

Detective Sergeant Lindsey Cooper of the New Jersey State Police took over the investigation approximately one hour later.  To obtain a recorded statement from defendant, Cooper reread the Miranda rights to defendant.  During the interrogation, defendant admitted killing Cazan and claimed that he could see a vision of her smiling through the window of the squad car when he was first placed under arrest, and later from the vantage of the room in which he was interrogated.  In explaining his killing of Cazan, he stated that he was angry because of “that damn book,” which he clarified as referring to the Bible.  Defendant told the officers, “I lost it and the devil kept f...ing with me, he just kept f...ing with me and I lost it . .   . .”  When asked if anyone else was involved in Cazan’s killing, defendant answered, “No, the devil, god and the devil (inaudible) inside of me, outside of me, all over the place, all over the place.”  

C.  Trial

Defendant was charged with first-degree murder, N.J.S.A.  2C:11-3(a)(1) and (2); second-degree possession of a weapon (handgun) for an unlawful purpose, N.J.S.A. 2C:39-4(a); thirddegree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1); and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1).

At trial, in addition to the family members who testified, Dr. Maureen Santina, a clinical and forensic psychologist, testified as an expert for defendant.  She diagnosed defendant with schizoaffective disorder which causes hallucinatory experiences and delusional perceptions. ^[5]  She testified that as a result of his delusional system, defendant lost his “ability to regulate his interpretation of the world and his reaction to the world.”  She explained that defendant became obsessed with his delusions, including his belief that God wanted him to kill sinners, even his own family, and concluded as follows: 

I think that he knew that he was killing her but I don’t think that he understood the nature of his killing her.  In other words, I think that he believed that he was supposed to kill her.  Whether he wanted to or not, he was supposed to kill her.  And that he was supposed to kill her because God was ordering it.

On redirect, Dr. Santina clarified,

As I said, [defendant] believed that God was telling him to do it.  He said, I didn’t want to kill her.  He in the past, had family members that he had said God was telling him to kill them because he was seeing these people as being bad.  And saying I don’t want to do it but feeling he had to.  He even talked to himself as not having the courage to do what God wanted.

So in that moment  when he feels that God wants him to do it he says I have to do it, I’m supposed to do it because God wants me to do it.  He believed that he was following God’s word.  And God as being the supreme authority who has the right to decide what’s right or wrong.

The State’s expert, Dr. Elliot Atkins, agreed with Dr. Santina’s conclusion that defendant suffered from the severe mental illness of schizoaffective disorder.  The State’s expert further agreed that defendant operated under a delusional system.  However, Dr. Atkins disagreed with Dr. Santina’s conclusion that defendant was legally insane at the time of the killing.  Dr. Atkins emphasized that defendant admitted to not  hearing voices at the time of the killing.  Rather, Dr. Atkins testified that defendant was merely acting on his interpretation of what God wanted.  On direct examination, Dr. Atkins testified:  

For example, he said that he only really heard the voices when he was sleeping.  He said that most of these were really not voices, but just thoughts in his head.  That he wasn’t even able to describe the voice.  And he said to me it was probably just some subconscious thing going on rather than a voice.

That the last time God had spoken to him was two years before the killing.  That although he indicated that the idea that he should hurt someone came from God, he said that that information had never been transmitted to him from any voices.  And he said it was just my interpretation.  I never heard the voice of God.

When I asked him whether he had heard any voices on the night of the incident, he said no.  So, although I agree that he was mentally ill at the time, what was going on at that time was not a psychotic episode where a voice is saying this is what you’ve got to do.  

 When asked on cross-examination whether defendant believed he could talk to God, Dr. Atkins responded, “he clarified for me that he didn’t believe God was actually talking to him.  But he believed in this delusional system that what he was thinking was God’s wishes or God’s will.”

Dr. Atkins also pointed to several considerations that, in his opinion, indicated defendant knew what he was doing was wrong.  First, defendant had a history of violence and aggression toward women, pointing to defendant’s experiences with the mother of one of his children, and to the fact that he had been fighting with Cazan on the day of the killing.  Second, defendant had stated that he stabbed Cazan, not to serve God, but to put her out of her misery.  Third, Defendant drank alcohol and smoked marijuana at the Britts’ apartment, which could indicate that defendant sought to dull the guilt he felt.  Last, defendant’s forensic evaluation test results indicated he was trying to “make himself look better . . . by claiming that it was God that had him do this.”  Dr. Atkins also noted that defendant’s decision to evade police was inconsistent with his claims of righteousness.  Based on his evaluation of those considerations, Dr. Atkins opined that defendant was not acting in accordance with his delusional system at the time of the killing and that, therefore, “he knew that what he was doing was wrong.”  

The jury instruction that the court and all parties agreed would be given in this matter was the Model Jury Charge for the insanity defense.  Drawing from the model charge, the court instructed the jury as follows:

Apart from his general denial of guilt, the defendant maintains that he is not guilty of the crimes charged by reason of insanity. . . .  

 . . . .   

A hostile act, that is an illegal act, may in one case spring from wickedness, and in another from some infirmity or sickness of the mind, which the  individual did not design. . . .

. . . .  

The law adopts a standard of its own as a test of criminal responsibility, a standard not always in harmony with the views of psychiatrist[s].  If, at the time of committing the act, the defendant was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if defendant did know it, that he did not know what he was doing was wrong, defendant –- the defendant is then legally insane, and therefore, not criminally responsible for his conduct.  

As you can see, the law regards insanity as a disease of the mind.  It may be temporary or permanent in its nature, but the condition must be a mental disease.  An accused may have the most absurd and irrational notions on some subject.  He may be unsound in mind and be a fit subject for confinement and treatment in a mental hospital, but if at the time of the offenses, the defendant had the mental capacity to distinguish right from wrong, and to understand the nature and quality of the acts done by him, he is subject to the criminal law.

 . . . .

The question is not whether the defendant, when he engaged in the deed, in fact actually thought or considered whether the act was right or wrong, but whether the defendant had sufficient mind and understanding to have enabled him to comprehend that it was wrong, if the defendant has used –- had used his faculties for that purpose. 

The jury rejected defendant’s insanity defense and convicted him of murder and the other charges.  His post-trial challenge to the insanity-defense jury instruction was denied by the court.  At sentencing, the court imposed a fifty-year term of imprisonment, with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A.  2C:43-7.2, on the murder conviction, and a five-year prison term for the hindering conviction, to be served consecutively to the fifty-year term.  The judge also imposed lesser terms that were made concurrent to the sentences for the murder and hindering convictions.

On appeal, the Appellate Division reversed the conviction and remanded for a new trial.  Singleton, supra, 418 N.J. Super.  177.  The panel held that defendant had presented sufficient evidence at trial to have required the trial court, sua sponte, to fashion a deific-command variant to the insanity-defense jury charge based on Worlock.  Id. at 202-04.  The panel was persuaded that the instruction was necessary because defendant testified that he believed killing his girlfriend was “the right thing because it was something God was telling [him] to do.” Id. at 202.  The panel noted also the confirming expert testimony that defendant believed he was compelled to obey what he perceived to be a command from God.  Id. at 201.  In light of that evidence, the panel concluded that failure to provide a deific-command instruction constituted plain error requiring reversal of the conviction.  Id. at 203-04.  On remand for a new trial, the panel held that “the judge must instruct that the defendant may not be held responsible for his actions ‘where a delusional command could be objectively recognized to confound the difference between lawful behavior and a moral imperative.’”  Id. at 204 (quoting Winder, supra, 200 N.J. at 251).^[6]    

We granted the State’s petition for certification.  207 N.J. 188 (2011).

II.  

The State offers alternative arguments why the decision of the Appellate Division should be reversed.  First, the State maintains that the evidence presented at trial supports the trial court’s decision to give only the model charge for the insanity defense and forego the deific-command variation described in Worlock.  The Worlock charge is only appropriate in the “clearest and narrowest category of cases” in which a defendant believes that he or she has received a direct command from God ordering the defendant to commit an illegal act.  Winder, supra, 200 N.J. at 251.  The State contends that defendant’s decision to kill Cazan sprang not from a perception that he had received a direct deific command, but rather from defendant’s subjective, religiously derived, moral code under which he was generally obligated to kill those who did not interpret the Bible and follow God in the way that he did.  Moreover, the State emphasizes that the circumstances surrounding the killing indicate that defendant’s immediate motivation for murdering Cazan was his anger over Cazan’s pregnancy and refusal to hand over her car keys, not his religious beliefs.  

In the alternative, the State asks that we reject Worlock, “abandon the ‘deific decree’ variation of the insanity defense and abolish the distinction between legal and moral wrong.”  The State argues that Worlock introduced uncertainty and subjectivity into the operation of the insanity defense.  The State contends that reinterpreting the insanity test, so that a defendant who is able to understand the nature and quality of his acts can only invoke the defense if he is unable to comprehend that his acts are illegal, would create a more objective and workable standard.

Defendant argues that the Appellate Division correctly concluded that a Worlock jury charge was necessary in this matter.  He points to several instances in the record, many relied on by the Appellate Division, where he claimed to have received direct communications from God.  Defendant also contends that Worlock does not require a defendant to experience actual auditory hallucinations of the voice of God to secure a deific-decree jury charge; rather, he argues that it is enough that a defendant delusionally believes that God wants him to kill.  In this case, defendant claims that there is no real dispute that he “suffered from a relatively stable delusion, over a period of years, that he was communicating with God, and that God was telling him to kill those who violated the Word.”  

In response to the State’s argument that the deific decree jury charge should be abandoned, defendant contends that the charge is required by the statutory language of the test for legal insanity in New Jersey.  Because the Legislature adopted that language, defendant argues that only the Legislature can discard the Worlock charge.  Moreover, even if the courts were free to abandon it, to do so in this case would violate the Ex Post Facto clauses of the United States and New Jersey Constitutions. See U.S. Const. art. I, § 10, cl. 1; N.J. Const.  art. IV, § 7, ¶ 3.  

III.

A.  

The insanity defense exists in criminal law not to identify the mentally ill, but rather to determine who among the mentally ill should be held criminally responsible for their conduct.  Sikora, supra, 44 N.J. at 470.  As a sister jurisdiction has observed, “[t]he insanity defense is not available to all who are mentally deficient or deranged; legal insanity has a different meaning and a different purpose than the concept of medical insanity.”  State v. Crenshaw, 659 P.2d 488, 491 (Wash. 1983) (en banc).  In New Jersey, N.J.S.A. 2C:4-1 sets forth the test for legal insanity:

A person is not criminally responsible for conduct if at the time of such conduct he was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong.  Insanity is an affirmative defense which must be proved by a preponderance of the evidence.

N.J.S.A. 2C:4-1 codifies the common-law M’Naghten^[7] test for legal insanity, which was originally formulated in England in the 1840s.  See Winder, supra, 200 N.J. at 242-45 (discussing history of M’Naghten test in England and New Jersey); Worlock, supra, 117 N.J. at 602-04 (same).  Our state adopted the M’Naghten test shortly after it was introduced in England, see  State v. Spencer, 21 N.J.L. 196, 204-05 (Oyer and Terminer 1846), and has employed it consistently thereafter, see, e.g., State v. Coleman, 46 N.J. 16, 39 (1965); State v. Lucas, 30 N.J.  37, 72 (1959); State v. Maioni, 78 N.J.L. 339, 341-42 (E. & A. 1909).  When the Legislature adopted N.J.S.A. 2C:4-1 in 1978, L.  1978, c. 95, it chose to preserve the M’Naghten test in spite of a recommendation from the New Jersey Criminal Law Commission to abandon it in favor of the Model Penal Code test.  See 2 Final Report of the New Jersey Criminal Law Revision Commission, commentary to § 2C:4-1, at 96-97 (1971).  

The M’Naghten test provides two distinct paths for a defendant to demonstrate that he was legally insane at the time he committed an act and therefore not criminally responsible for his conduct.  First, a defendant can show that “he was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing.”  N.J.S.A. 2C:4-1.  Second, even if the defendant did know the nature and quality of the act, he can still establish legal insanity if, because of a “disease of the mind,” “he did not know what he was doing was wrong.”  Ibid.

In the century-and-a-half since the M’Naghten test was formulated, courts have recognized that the term “wrong” in the second part of the test is susceptible of multiple interpretations.  See People v. Schmidt, 110 N.E. 945, 946-49 (N.Y. 1915) (recognizing ambiguity and discussing possible interpretations); see also Diestel v. Hines, 506 F.3d 1249, 1271-73 (10th Cir. 2007), cert. denied, 553 U.S. 1079, 128 S. Ct. 2875, 171 L. Ed. 2d 812 (2008) (same); Crenshaw, supra, 659 P.2d at 492-94 (same).  One interpretation would equate the term “wrong” with illegality.  Under that understanding, a defendant invoking the insanity defense must demonstrate that despite knowing “the nature and quality of the act he was doing,” he suffered a disease of the mind that prevented him from understanding that the act was illegal.  See N.J.S.A. 2C:4-1.  A minority of states that follow the M’Naghten test have adopted that interpretation.  See State v. Hamann, 285 N.W.2d 180, 183 (Iowa 1979); State v. Boan, 686 P.2d 160, 168 (Kan. 1984); see also Regina v. Windle, 2 Q.B. 826 (1952) (interpreting “wrong” to mean legal wrong in England).   

However, a majority of states following the M’Naghten test have interpreted “wrong” as encompassing legal as well as moral wrong.  See State v. Skaggs, 586 P.2d 1279, 1284 (Ariz. 1978); People v. Skinner, 704 P.2d 752, 764 (Cal. 1985); People v. Serravo, 823 P.2d 128, 137 (Colo. 1992) (en banc); State v. Cole, 755 A.2d 202, 210 (Conn. 2000); Schmidt, supra, 110 N.E.  at 949; State v. Pittman, 647 S.E.2d 144, 170 (S.C. 2007); State v. Cameron, 674 P.2d 650, 653–54 (Wash. 1983) (en banc); Wilson v. State, 78 N.W.2d 917, 920 (Wis. 1956); see also United States v. Ewing, 494 F.3d 607, 617 (7th Cir. 2007) (discussing federal courts’ position that wrong encompasses “the broader meaning of moral rather than criminal wrongfulness” (citation omitted)).  Under that interpretation, a defendant who understands that his actions are contrary to law nonetheless may successfully invoke the insanity defense if he lacked the capacity to understand that his actions were morally wrong.  Courts that follow that approach generally assess moral wrong from a societal, and not a personal, standard, requiring a defendant to show that he did not understand that his actions contravened generally accepted objective societal notions of morality.  See, e.g., Serravo, supra, 823 P.2d at 137-38 (adopting that standard and citing other jurisdictions adopting same approach); Crenshaw, supra, 659 P.2d at 493-94 (same). 

B.  

Our Court addressed the ambiguity in the term “wrong” for the first time in Worlock.  In that case, the defendant was convicted of murder after shooting and killing two friends.  Worlock, supra, 117 N.J. at 599-01.  At trial, the defendant did not deny his involvement in the killings, but relied instead on a defense of legal insanity.  Id. at 601.  He claimed to have believed the killings were justified because “might makes right” and the laws of society are only meant for “subservient people,” and the defendant did not consider himself to be in that category.  Id. at 614.  After the defendant presented his defense, the trial court charged the jury with the legal definition of insanity, but did not define the meaning of the term “wrong.”  Id. at 612.  On appeal, the defendant argued that the trial court should have instructed the jury that the term “wrong” can mean either legal or moral wrong, so that the jury would have known that it could acquit in the event it found that he did not understand that his actions were morally wrong, even if he knew them to be against the law.  Id. at 606.

We held that the term “wrong” embraces more than just the concept of legal wrong, id. at 610, and that “a defendant’s ability to appreciate society’s morals may be relevant to the determination of his sanity,” id. at 609.  Importantly, we added that

[i]n the vast majority of cases, if the defendant was capable of understanding that he was acting contrary to law, he would also have sufficient capacity to understand that he was acting contrary to the morals of society.  Law is largely the crystallization of societal morals.  Rarely would an allegedly illegal act not also be wrongful morally.  Thus, “wrong” as used in the insanity defense will generally incorporate notions of both legal and moral wrong. [Id. at 609-10.]

Because legal and moral wrong are usually “coextensive,” especially when the criminal act at issue is murder, we held that a jury charge explaining that “wrong” encompasses both legal and moral wrong is almost always unnecessary and would more often than not only serve to confuse the jury.  Id. at 610-11.  But, in the odd case in which a defendant is able to recognize that his actions are legally wrong but is nonetheless incapable of understanding that they are morally wrong, we held that “the court should instruct the jury that ‘wrong’ encompasses both legal and moral wrong.”  Id. at 611.  

We emphasized that the insanity defense has always been premised on a “defendant’s ability to comprehend whether his or her actions would ordinarily be disapproved by society.”  Id. at 610.  Thus, we held that “the concept of moral wrong must be judged by societal standards, not the personal standard of the individual defendant.  As a general rule, it will not be sufficient, therefore, that a defendant’s personal moral code justified a killing otherwise prohibited by law and societal morals.”  Ibid. (citations omitted).  In other words, in order to warrant a jury charge explaining the concepts of legal and moral wrong, a defendant would have to show that, at the time he committed the crime, he believed that his actions were morally right under prevailing social norms, not just his own “idiosyncratic code of morality.”  Id. at 614.

We observed that there is only one “generally-recognized” situation in which legal and moral wrong become sufficiently distinct to necessitate a jury charge defining the term wrong:  when “the defendant contends that he or she knowingly killed another in obedience to a command from God.”  Id. at 611.  In such a scenario, a defendant could justifiably believe that although he acted contrary to law, society would consider his actions to have been morally right.  Ibid.  We noted that there might be situations other than a deific decree to kill in which a defendant could at the same time understand that his actions were legally wrong but believe them to be morally right under prevailing social values, but declined to speculate on what those scenarios might be.  Ibid. 

Applying the above standard to the facts of the case, we held that Worlock had not demonstrated that he believed society would have approved of his killings.  Id. at 614.  Indeed, we noted that he “viewed society with contempt” and candidly admitted that the moral code by which he lived was not for “the folly-ridden mass.”  Ibid.  Thus, because it was clear that Worlock had the capacity to understand that his actions were morally wrong under conventional notions of morality, we held that the trial court did not err in declining to define the word “wrong” for the jury.  Ibid. 

Recently, we had occasion to revisit the standard introduced in Worlock and again consider whether a defendant had presented the kind of insanity defense that would necessitate a jury charge defining the term “wrong.”  In Winder, supra, the defendant shot and killed a cab driver outside of a police station, and immediately turned himself in to confess to the crime.  200 N.J. at 238.  The defendant maintained that he killed the driver because he believed that his parents were trying to kill him and was convinced that prison was the only place he could be safe from them.  Id. at 238, 249.  The defendant pursued an insanity defense at trial, presenting an expert witness who testified that he suffered from paranoid schizophrenia and heard voices compelling him to kill.  Id. at 239.  At the charge conference, defense counsel requested that the jury be given an insanity instruction that, following Worlock, included an explanation that the term “wrong” encompasses both legal and moral wrong.  Id. at 240.  The trial court denied the request and instructed the jury with the model insanity charge.  Ibid.  The jury found the defendant guilty of first-degree murder and related weapons offenses.  Ibid. 

On appeal, the defendant challenged the trial court’s decision to forego the Worlock charge, contending that his case presented one of the “‘other delusion-based exceptions’” that we intimated could necessitate a jury charge on the definition of “wrong.”  Id. at 249 (quoting Worlock, supra, 117 N.J. at 611).  We disagreed, and reemphasized that, outside of the “deificcommand delusion” discussed in dicta in Worlock, situations in which a defendant could understand that his actions were illegal but be incapable of understanding that society would disapprove of them are exceedingly rare.  Id. at 249-50.  We explained that

[o]ur reference to other delusion-based exceptions in Worlock was not meant to expand the narrow field of potential exceptions to the general understanding that legal and moral wrong, particularly in murder cases, are coextensive.  The hurdle to overcoming societal disapproval of the killing of another human being cannot be accomplished easily by references to subjective beliefs, personal preferences, or even alternative notions of morality, unrelated to mental illness, that clash with the law and the mores of society. [Id. at 250.]  

We held that the defendant in Winder was not entitled to a Worlock charge because his actions immediately before and after the killing “demonstrated knowledge of the social unacceptance of his deed.”  Id. at 249.  Moreover, the defendant’s delusions had no apparent impact on his ability to appreciate the way in which society would view the murder.  Id. at 250.  The defendant believed that the only way he could be safe from his parents’ machinations was to go to prison, and settled on murder as the best way to effect his entry.  Id. at 249.  There was no indication that the defendant delusionally believed that society would give its blessing to his use of murder to escape his parents.  Id. at 250.  Thus, because we could discern “no credible claim of moral rightness” flowing from the defendant’s delusions, we upheld the trial court’s decision to give the standard insanity charge.  Ibid.  

IV.

We dispense at the outset with the State’s argument that we should abandon Worlock’s recognition of a deific-command exception to the general charge covering criminal insanity.  Stare decisis and other stabilizing principles of the law compel us to reject that request.

As recently as this term we noted that “[s]tare decisis is a principle to which we adhere for the sake of certainty and stability.”  State v. Shannon, 210 N.J. 225, 226 (2012) (citations omitted).  Nonetheless, stare decisis is not so inviolate that it should “foreclose reanalysis” when warranted.  Ibid. (citations omitted).  It is undeniably a healthy practice for a court of last resort to re-examine its own doctrine, but, consistent with the practice of other courts of last resort, we have required “special justification” to overturn the persuasive force of precedent.  See Luchejko v. City of Hoboken, 207 N.J.  191, 208-09 (2011) (citations omitted); State v. Brown, 190 N.J.  144, 157 (2007).  Finding such circumstances can depend on whether a particular decision has proven to be unsound or unworkable in practice, as the State here argues.  See AlliedSignal, Inc. v. Dir., Div. of Taxation, 504 U.S. 768, 783, 112 S. Ct. 2251, 2261, 119 L. Ed. 2d 533, 549 (1992).  However, in matters where a judiciary may rely on legislative correction, special justification for disturbing precedent is difficult to establish.   

Statutory-based decisions are less likely to be subject to reconsideration because the legislative branch can correct a mistaken judicial interpretation of a legislative enactment.  Indeed, as a principle of statutory construction, the legislative branch is presumed to be aware of judicial constructions of statutory provisions.  See White v. Twp. of N. Bergen, 77 N.J. 538, 556 (1978) (“[T]here is ample precedent in New Jersey to support the proposition that, where a statute has been judicially construed, the failure of the Legislature to subsequently act thereon evidences legislative acquiescence in the construction given the statute.”); 2B Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 49:10 at 137 (7th ed. 2008) (“A number of decisions have held that legislative inaction following a contemporaneous and practical interpretation is evidence that the legislature intends to adopt such an interpretation.”).  Thus, legislative acquiescence to an interpretation of a statute renders the judicial decision an unlikely candidate for abandoning stare decisis.  That is precisely the circumstance here.   

Worlock’s explanation of the general confluence of legal wrong with moral wrong in the legislative use of the single term, “wrong,” in N.J.S.A. 2C:4-1, and our holding out of the possibility that a special instruction may be necessary to explain a divergence of the two only in the clearest and narrowest category of class of cases, occurred more than two decades ago.  Worlock’s interpretation of the M’Naghten test, adopted by the Legislature in N.J.S.A. 2C:4-1, has stood since, without reaction by the legislative branch in the interim.  Nor has there been a legislative reaction since Winder reinforced a restrictive approach to the application of Worlock, not a more expansive one as the concurrence in Winder had urged.  Due to the Legislature’s longstanding acceptance of Worlock, and the fact that we are addressing a settled interpretation of case law, we decline to accept the invitation to overturn Worlock at this point in time, even were we to concede some merit to the argument.

We turn therefore to consider whether there was plain error in the trial court’s jury instruction on the insanity defense in this matter.  

V.   

A.

Certain principles pertain in the review of jury instructions.  Jury charges must provide a “comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find.”  State v. Green, 86 N.J. 281, 287–88 (1981).  The charge as a whole must be accurate.  State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Thompson, 59 N.J. 396, 411 (1971).  If the defendant does not object to the charge at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant’s case.  State v. Macon, 57 N.J. 325, 333–34 (1971).  

At trial, defendant did not challenge the jury instruction that used the model charge on insanity until after a guilty verdict had been returned.  Thus, the question here presented is whether the trial court erred in not sua sponte including additional language separating defendant’s ability to appreciate legal wrong from moral wrong based on “deific commands” to kill. ^[8]   

Appellate review applies the plain-error standard when a defendant fails to object to a given jury charge.  See R. 1:7-2; State v. Wakefield, 190 N.J. 397, 473 (2007) (“[T]he failure to object to a jury instruction requires review under the plain error standard.”).  Plain error is that which is “clearly capable of producing an unjust result.”  R. 2:10-2.  In respect of a late claim of error in a jury instruction, “plain error requires demonstration of ‘legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.’”   State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)).   

B.

In State v. Walker, 203 N.J. 73 (2010), we recently addressed the issue of “when a trial court should instruct the jury on the defense to statutory felony murder in the absence of a request to charge from counsel.”  Id. at 86.  We determined that a requested jury instruction should be given if “there is a rational basis in the record to give it . . . .  On the other hand, if counsel does not request the instruction, it is only when the evidence clearly indicates the appropriateness of such a charge that the court should give it.”  Id. at 87.

The delusional command variation of the insanity defense is a much more limited defense than that which we considered in Walker.  See Winder, supra, 200 N.J. at 250-51; Worlock, supra, 117 N.J. at 611.  We said clearly in Worlock that “[b]elief in an idiosyncratic code of morality does not constitute the defense of criminal insanity.”  117 N.J. at 614; see also  Crenshaw, supra, 659 P.2d at 493-94 (concluding that personal moral beliefs will not exculpate defendant when he or she knew killing was contrary to societal moral and legal norms).  “Worlock cracked open the door only to a command delusion that, objectively viewed, could have rendered it impossible for its hearer to know the difference between right and wrong.”  Winder, supra, 200 N.J. at 249.  A rigorous standard was expressed and applied in Winder consistent with the few decisions around the country to have grappled with such circumstances. ^[9] 

Applying to this case that stringent standard for qualification into the narrow and clear class of case envisioned to satisfy a deific command to kill, we conclude that the evidence does not clearly indicate that it was impossible for defendant to appreciate that killing Cazan was contrary to society’s morals.  The Worlock variation of the insanity-defense jury charge is not available to all those who intuit reprehensible obligations or develop idiosyncratic moral compulsions from interpreting religious material.  Were that all that was required in order to constitute a deific “command,” then acting pursuant to any such personal belief system would qualify as lack of knowledge of having committed “moral” wrong and a defendant would no longer have to show that he believed that society would not objectively disapprove of the moral wrongness of the action.  The decision in Winder was circumscribed carefully to ensure that such a result would not come to fruition.  See Winder, supra, 200 N.J. at 248-51.

Here, defendant claimed to have formed a general belief that he ought to kill sinners who refused to follow his explanation of God’s expectations.  In essence, defendant had an idiosyncratic personal belief system analogous, albeit in different form, to that in Worlock.  See also State v. DiPaolo, 34 N.J. 279, 292-93 (1961) (distinguishing between insane delusion that negates consciousness of immorality of act from delusion that does not prevent defendant from simultaneously appreciating that deed was contrary to law); Crenshaw, supra, 659 P.2d at 494-95 (holding that defendant claiming Moscovite belief system that calls for killing as retribution for adultery is not entitled to deific-command adjustment to jury charge on criminal insanity).

Defendant’s personal belief system was based on his own interpretation of scripture, fortified through dreams in which he believed to receive communications from God, which does not render his belief system in his “right to kill” certain sinners the equivalent of a command from God to kill.

Moreover, defendant had demonstrated on prior occasions the ability to exercise his own will and resist the obligation he perceived from God’s teachings.  Defendant had chosen not to kill his family or their friends despite his religious delusions generally and his specific belief, expressed on occasion, that they were sinners.  Defendant also determined that he would not kill anyone to whom he had not had a chance to explain his religious beliefs.  For example, he decided that he would not attempt to hurt or kill Britt’s brother because defendant had not taught him to believe in God’s word as defendant interpreted it, and also because he was bigger and apparently stronger than defendant.  Defendant’s inconsistent application of “God’s will” and the concomitant deific desire that he kill sinners, which he claims to have perceived, and his reluctance to kill those whom he had not tried to convert, indicates his awareness of an objective societal disapproval of the personal religious belief system he had developed.  

Defendant also has failed to demonstrate entitlement to a Worlock charge because the evidence does not clearly indicate that he was acting pursuant to a delusional command at the time of the killing.  As explained in Winder, an amplified criminal insanity charge differentiating between legal and moral wrong is available only to a defendant whose will is overborne by a perceived divine command that overcomes the ability to be conscious of society’s law and mores disapproving of that “command.”  See Winder, supra, 200 N.J. at 247-48 (citing Crenshaw, supra, 659 P.2d at 494-95; DiPaolo, supra, 34 N.J. at 293).  There is a necessary temporal proximity to the action for which a defendant is charged and the overbearing of his will by God’s order or command at the time of the action.  In rejecting a Worlock instruction in Winder, we curbed expansion of Worlock  in part because there was no showing that the defendant was operating under a direct command from God at the time of the killing.  Here, defendant admitted that he never heard a voice or saw a vision that commanded him to kill Cazan when he committed the murderous act. ^[10]  Moreover defendant admitted that he had not received any specific command to kill Cazan at the moment of the killing, and indeed had not received any communications from God for some time.

Nothing in Winder’s application of the law to its facts supports the extrapolation made by the appellate panel in this matter, which would permit anyone who interprets a religious text in an outrageous and violent manner to a deific-command, insanity-defense charge.  Isolated references to voices, and to communication with God through scripture and in dreams, are not the equivalent of a command from God, at the time of the killing, sufficient to demonstrate that it deprived defendant of his ability to appreciate society’s disapproval of his action.  The appellate panel mistakenly accepted defendant’s belated argument that the charge, given in its classic form, was insufficient for the jury to consider his insanity defense.  Plain error is not present in the charge given here on this record.

Defendant’s complaints post-trial and on appeal that, in light of Worlock and Winder, the charge required clarification are not consistent with precedent as to the factual requirements needed to trigger a deific command variation to the insanity defense jury charge. ^[11]   What the record shows is that, based on defendant's interpretation of the Bible, he believed Cazan was a sinner.  And, he similarly interpreted “God’s word” to direct that he kill sinners.  That is not the type of case to which we referred in Winder when we discussed a deific-command clarification to the insanity-defense charge.  And, more pointedly, there is too tenuous a connection between any “alleged” deific-command and the murder that occurred in this matter on which to base a reversal on plain error.  Defendant admitted that he would have left and not killed Cazan if she only had given him the car keys.  He thereafter stated that he stabbed Cazan, not to kill her, but to put her out of her misery.  Since the killing, defendant has questioned whether it was God’s will for him to kill Cazan. ^[12]

In sum, we conclude that the evidence does not clearly indicate defendant killed Cazan as a result of a deific command.  Defendant was entitled to assert an insanity defense, and he did.  He received an insanity jury charge.  The trial court did not commit plain error by failing to give, sua sponte, a Worlock  charge as part of the insanity-defense jury instruction.  Defendant’s conviction should not have been reversed on appeal on that basis.  We express no view on the other claims of error raised on appeal that were not addressed by the Appellate Division.  Those issues can be addressed on remand.   

VI.

The judgment of the Appellate Division is reversed and the matter is remanded to the Appellate Division for consideration of defendant’s remaining claims of error.

JUDGE WEFING (temporarily assigned) joins in JUSTICE LaVECCHIA’s opinion.  JUSTICE PATTERSON, joined by CHIEF JUSTICE RABNER, filed a separate opinion concurring in the judgment. JUSTICE HOENS filed a separate, dissenting opinion in which JUSTICE ALBIN joins.

JUSTICE PATTERSON, concurring.

I concur with the majority opinion, which reverses the determination of the Appellate Division panel and holds that defendant Boyce Singleton, Jr. was not entitled to the deific command jury instruction addressed by this Court in State v. Worlock, 117 N.J. 596, 611 (1990).  The majority opinion faithfully follows the reasoning in Worlock and State v. Winder, 200 N.J. 231 (2009).  For the reasons articulated by Justice LaVecchia, I agree that defendant’s belated invocation of the deific command variation of the insanity defense was unsupported in the circumstances of his crime.  

I write separately because in my opinion, the deific command concept is neither mandated by the Legislature in N.J.S.A. 2C:4-1 nor firmly rooted in our jurisprudence, and should not be part of our law.  It invites a defendant to exploit a core value of our society, respect for the religious beliefs of others, for tactical advantage.  The deific command concept does not meaningfully guide a jury’s exploration of the intricate issues raised by the insanity defense.  Instead, it can reduce the dispassionate analysis of a defendant’s mental state, envisioned by the Legislature when it codified the insanity defense, to a superficial review of the defendant’s religious utterances.  Application of the deific command results in inequitable treatment of defendants who have committed similar crimes based on nothing more than one person’s assertion of a religious delusion.  In my view, a defendant’s claim that he or she heeded a deity’s purported instruction to commit a murder or other crime should not prompt a jury instruction that suggests a finding of legal insanity within the meaning of N.J.S.A. 2C:4-1.

Neither the plain language nor the legislative history of N.J.S.A. 2C:4-1 warrants special consideration for defendants who claim that deific commands prompted their crimes.  The statute at issue bars the imposition of criminal responsibility for conduct if, at the time of the crime, the defendant “was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong.”  N.J.S.A. 2C:4-1.  The Legislature did not expressly or by implication define the word “wrong” as used in N.J.S.A. 2C:4-1.  It provided no instruction that a defendant’s failure to comprehend that his or her act was “wrong” should mean anything other than he or she did not understand that it was an illegal act.

As the majority notes, the statute codified the test articulated by the House of Lords in M’Naghten’s Case, 8 Eng. Rep. 718 (H.L. 1843), long accepted as the formulation of the insanity defense in New Jersey case law.  Statement to Senate Bill No. 738, at 3 (May 15, 1978).  The M’Naghten rule, reflected in our statute, did not differentiate between defendants who invoke deific commands and defendants who do not.  In this Court’s articulation of the M’Naghten rule -- relied on by the drafters of New Jersey’s Penal Code, 2 Final Report of the New Jersey Criminal Law Revision Commission, commentary to § 2C:4-1, at 96 (1971) -- the Court held that a defendant could invoke the insanity defense if “the accused was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong.”  State v. Coleman, 46 N.J. 16, 39 (1965).  That construction, adopted nearly verbatim by the Legislature in N.J.S.A. 2C:4-1, refers to “wrong” without reference to religious belief.  It does not contemplate a deific delusion as part of the test for insanity. 

To the extent that the deific command permutation of the insanity defense has gained a foothold in New Jersey law, it has done so through this Court’s dicta, not legislative action.  The concept originated in the New York Court of Appeals, finding its source in dicta written by Judge Cardozo in People v. Schmidt, 110 N.E. 945 (N.Y. 1915).  There, the defendant concocted -- and later recanted -- an elaborate account of visions and voices conveying directions from God that he should kill a woman “as a sacrifice and atonement.”  Id. at 945.  Although the defendant conceded “that he never saw the vision and never heard the command,” id. at 950, Judge Cardozo nonetheless introduced to New York law a distinction between legal and moral “wrong” illustrated by a hypothetical scenario:

A mother kills her infant child to whom she has been devotedly attached.  She knows the nature and quality of the act; she knows that the law condemns it; but she is inspired by an insane delusion that God has appeared to her and ordained the sacrifice.  It seems a mockery to say that, within the meaning of the statute, she knows that the act is wrong. [Id. at 949.]   

Schmidt was first noted by this Court in State v. DiPaolo, 34 N.J. 279, 292-93, cert. denied, 368 U.S. 880, 82 S. Ct. 130, 7 L. Ed. 2d 80 (1961).  However, it was not until 1990, more than a decade after the enactment of N.J.S.A. 2C:4-1, that the Court  suggested in Worlock that the statute could be construed to incorporate the deific command concept.  

As the majority recounts, the principle that a deific delusion could illustrate a potential distinction between legal and moral wrong was addressed for the first time by this Court in Worlock, supra, 117 N.J. at 608-09.  Like the discussion of the deific command in Schmidt, the Court’s first articulation of this theory was in dicta and did not apply to the facts of the case.  The defendant in Worlock attributed his killing of two friends not to a purported deific command, but to his stated belief that he was exempt from the laws of society, which in his view were intended to govern only the “subservient.”  Id. at 614.  The Court discussed the distinction between “legal” and “moral” wrong, noting that in most cases the two concepts converge.  Id. at 610-11.  The Court made the following observation:   

Occasionally, however, the distinction between moral and legal wrong may be critical.  For example, if the defendant contends that he or she knowingly killed another in obedience to a command from God, a jury could find that the defendant was insane.  Schmidt, supra, 110 N.E. at 949; see also DiPaolo, supra, 34 N.J. at 291-93 (“The experts disagreed upon whether there was evidence of a psychosis to support the alleged delusion, but none suggested that if defendant in fact suffered an insane delusion that God commanded the deed, he nonetheless was legally sane if he simultaneously appreciated that the deed was contrary to law.”). [Id. at 611.]

Although the Worlock defendant had not suggested that the murders he committed were directed by any deity, the Court postulated that in an “exceptional case, such as the deific exception in which the defendant claims that he or she acted under a command from God, the court should instruct the jury that ‘wrong’ encompasses both legal and moral wrong.”  Ibid.  For defendant Worlock, the Court found no such exceptional circumstances.  Id. at 613-14.  

In Winder, the Court recognized its prior discussion of the deific command, but nonetheless rejected the defendant’s claim that he was entitled to a jury charge regarding the distinction between legal and moral wrong in his trial for the murder of a taxi driver.  Winder, supra, 200 N.J. at 250.  The Court concluded that the defendant in Winder, who attempted to justify his act by professing his belief that his parents were trying to kill him, was not entitled to the jury instruction that he sought.  In doing so, the Court reiterated the narrow scope of any “delusion-based” exceptions to the rule that legal wrong and moral wrong are coextensive.  Id. at 248.  Thus, in the three cases in which it has considered the “deific command” issue –- Worlock, Winder, and the present case -- the Court has never concluded that a defendant is entitled to a deific command charge.

Given this history, I respectfully submit that the deific command concept has a tenuous connection to New Jersey law.  Special consideration for defendants relying on a deific command theory is not, in my view, compelled by the Legislature’s use of the term “wrong” in N.J.S.A. 2C:4-1, which codifies M’Naghten  but makes no reference to the notion of a defendant’s inability to perceive “moral wrong.”  The concept was not introduced to our law by the circumstances of an actual case involving a deific delusion.  Instead, in both New York and New Jersey, it originated as nothing more than a hypothetical illustration of a setting in which a defendant could perceive an act as legally but not morally wrong.  Schmidt, supra, 110 N.E. at 949;  Worlock, supra, 117 N.J. at 608-09.  Its limits were further underscored by the Court in Winder, supra, 200 N.J. at 248.

The jury instruction formulated by the Appellate Division panel below -- to be given in a retrial of defendant -- would direct the jury to find defendant not guilty by reason of insanity if he proved by a preponderance of the evidence that he acted pursuant to a delusion of receiving a deific command, or “‘where a delusional command could be objectively recognized to confound the difference between lawful behavior and a moral imperative.’”  State v. Singleton, 418 N.J. Super. 177, 204 (App. Div. 2011) (quoting Winder, supra, 200 N.J. at 251).  The Appellate Division’s proposed jury instruction demonstrates the hazards of the deific command concept.  The instruction could be construed to suggest that a defendant’s invocation of a deific command presumptively resolves what should be a fact-sensitive, dispassionate inquiry into the psychiatric condition of a criminal defendant.  It poses the real danger of confusing and distracting a jury, and could reward the defendant who fabricates an account of visions, voices and divine commands.  In my opinion, the insanity defense should be reserved for a defendant whose psychiatric condition renders him or her unable to appreciate the illegality of the crime at issue, and the deific command theory should be jettisoned.

I fully subscribe to the majority’s observations about the principle of stare decisis; it is an important foundation of our legal system, “‘to which we adhere for the sake of certainty and stability.’”  Ante at ___ (slip op. at 31) (quoting State v. Shannon, 210 N.J. 225, 226 (2012)).  However, I consider this case to present the unusual setting in which the principle of stare decisis does not compel the Court to precisely conform its holding to prior decisions.

Given the factual setting of Worlock, its discussion of the deific command is dicta.  In Winder, the Court also declined to apply the deific command theory to the defendant in that case.  Winder, supra, 200 N.J. at 250-51.  As a result, the discussions are authoritative even though they were not essential to the disposition of either case.  See State v. Rose, 206 N.J. 141, 182-84 (2011).

But even if we were to treat the dicta in Worlock and Winder as though they had the full weight of precedent, there are still “special justifications” that would warrant overturning the deific command construct.  Luchejko v. City of Hoboken, 207 N.J. 191, 209 (2011).  Such justifications include “when a rule creates unworkable distinctions [or] when a standard defies consistent application by lower courts,” ibid., or when “‘conditions change and as past errors become apparent,’” White v. Twp. of N. Bergen, 77 N.J. 538, 551 (1978) (quoting Fox v. Snow, 6 N.J. 12, 27 (1950) (Vanderbilt, C.J., dissenting)).  In my opinion, that standard is easily met here.  The deific command concept is not required by the text of the statute or its legislative history.  Our Court has not once held that the facts before it have entitled a defendant to an expanded jury instruction based on this theory.  Such an instruction has the tendency to mislead and confuse jurors, and raises the specter of rewarding the fabrication of deific delusions.  Its arguable utility is therefore offset by its potential to lead to inequitable results.  

The majority characterizes this case as one in which the judiciary may rely on legislative correction, and finds the deific command concept to be fortified by the Legislature’s failure over the years to nullify it by statute.  Ante at ___ (slip op. at 32) (citing White, supra, 77 N.J. at 556).  In this regard, I must part company with the majority.  As we have held, “[t]he Legislature need not explicitly amend a statute . . . every time [a court] takes action inconsistent with it in order to avoid the implication that the Legislature concurs.”  State v. Cannon, 128 N.J. 546, 566-67 (1992).  The Court has noted in other contexts that “[l]egislative inaction has been called a ‘weak reed upon which to lean’ and a ‘poor beacon to follow’ in construing a statute.”  GE Solid State, Inc. v. Dir., Div. of Taxation, 132 N.J. 298, 313 (1993) (citations omitted); see also  Amerada Hess Corp. v. Dir., Div. of Taxation, 107 N.J. 307, 322 (1987), aff’d, 490 U.S. 66, 109 S. Ct. 1617, 104 L. Ed. 2d 58 (1989). 

Here, the Legislature enacted N.J.S.A. 2C:4-1 before this Court construed the simple word “wrong” to permit an insanity defense based on deific command delusions, whether in dicta or in any holding.  I cannot presume that the Legislature’s failure to address this specific issue, given its many priorities, amounts to an endorsement of the deific command.  In my view, the inclusion of a deific command notion as part of N.J.S.A.  2C:4-1 is the creation of our case law.  The principles of stare decisis do not require that we apply it now or in the future.  

Except as noted above, I join in the majority’s decision to reverse the determination of the Appellate Division panel and remand to the Appellate Division for consideration of defendant’s remaining arguments.  

CHIEF JUSTICE RABNER joins in this opinion. SUPREME COURT OF NEW JERSEY

JUSTICE HOENS, dissenting.

A man, having given himself over to the study of religious texts and tracts, believes that he is called by God to carry out various acts that no sane man would perform.  His family grows fearful of his numerous expressions of what he believes he has been called to do in order to cleanse the world of them or to cleanse them of their sins.  Some of his pronouncements include expressions that he is resisting God’s orders; others make it plain that he is intent on complying with God’s will as he understands it, even to the point of putting others to death.   

His family first tries to use the powers of reason in an effort to convince him that his views do not comport with traditional religious teachings and in order to convince him of the errors in his increasingly bizarre and frightening pronouncements.  Failing that, they essentially force him from their home.  He moves in with a woman who then becomes pregnant with his child.  Believing that she is nothing more than a harlot in the eyes of God and that she is in need of cleansing, he kills her.  In the aftermath of that horrific act, his behavior includes some actions that appear to be consistent with efforts to elude detection and some lucid statements, but his family members report that he is babbling, obviously talking to and hearing the voice of someone they can neither see nor hear.   

By the time of his trial, the explanations he has given about his behavior to the mental health professionals include both assertions that he was acting in accordance with what he believed to be the will of God and expressions of remorse that he now recognizes that he was duped by the devil into doing things contrary to the will of God.  Nonetheless, his own testimony at trial explained that sometimes he heard directives and sometimes the “Spirit ministered to me and that I received like — a talk from Him” and that killing his girlfriend “was the right thing because it was something God was telling me to do.”  Expert testimony included the opinion that defendant killed his girlfriend because he “believed that he was being compelled to do this by God and that therefore he had to obey that belief.”

No one disputes that defendant Boyce Singleton is mentally ill.  The question before the Court today is whether the factual setting in which he acted and the expert testimony concerning his mental status is sufficient to meet the test that we have devised for the deific command variation on the traditional insanity defense.  See State v. Winder, 200 N.J. 231, 246-48 (2009) (considering difference between deific command and personal moral code); State v. Worlock, 117 N.J. 596, 611 (1990) (recognizing deific command variation on insanity defense).  More to the point, the question before this Court is whether, in light of that record, the trial court’s failure to charge the jury in accordance with Worlock was an error that entitles defendant to a new trial.  The Appellate Division concluded that it was, as do I.  Therefore, I respectfully dissent.   

I.

We have long recognized that “clear and correct jury instructions are fundamental to a fair trial.”  State v. Adams, 194 N.J. 186, 207 (2008).  In the context of a criminal trial in particular, we have cautioned that erroneous jury charges presumptively constitute reversible error, State v. Jordan, 147 N.J. 409, 422 (1997), and are “poor candidates for rehabilitation under the harmless error philosophy,” State v. Vick, 117 N.J. 288, 289 (1989) (citation omitted).  Those expressions of our deeply held concern for ensuring that all defendants are accorded a fair trial are no more compelling than they are in the case of one facing a charge of murder.

To be sure, we have fixed different standards against which to test such errors based upon whether a defendant requested a charge or failed to do so.  In the latter circumstance, we have established a stringent standard, one that requires the defendant to demonstrate that the failure to include the charge was plain error and therefore clearly capable of producing an unjust result.  R. 2:10-2; see State v. Burns, 192 N.J. 312, 341 (2007).  Although the plain error standard is an exacting one, the record in this case, fairly and objectively viewed, surely meets it.

Indeed, it is only by redefining the meaning of Worlock’s deific command variation on the insanity defense, by imposing a new and exceedingly narrow view of the type of command that will qualify for that defense, by altering our previously-accepted notion of the difference between a true deific command and acts based on a personal moral code, and by ignoring the abundant evidence adduced at trial through fact and expert testimony in support of the conclusion that defendant fit within the traditional bounds of the deific command defense, that the majority can conclude that the failure to give the charge sua sponte did not amount to reversible error.  In adopting this approach, the majority has created a test so narrow as to be essentially non-existent.  It is, therefore, a new test that stands in clear disregard of the statutory definition of insanity, that is contrary to our previous decisions explaining the sources from which that statute was drawn and that is at odds with both religious practices and psychiatry.   

Whether a jury would find that defendant met the definition of insanity had they been correctly charged we cannot know; that defendant has been deprived of the chance to be judged fairly in accordance with the statutory commands that define insanity in terms of both legal and moral wrong is the essence of injustice.  

II.

The essential reasons for my disagreement with the majority’s reasoning and conclusion can be explained succinctly.  First, the majority fails to recognize that the issue presented in Worlock, as to which the deific command discussion was but a small component, was nothing less than this Court’s clear articulation of the fundamental basis upon which we, and our Legislature, have embraced a definition of insanity that includes both legal and moral wrong.  Worlock, supra, 117 N.J.  at 606 (describing issue as one of first impression).  It was there that this Court traced the concept back to its roots in M’Naghten, see id. at 603-07, there that the Court described the evolution of the concept here and around the country, id. at 608-09, and there that this Court adopted Judge Cardozo’s reasoning that serves as the essential underpinning of our now well-established recognition of the deific command defense, ibid. (quoting People v. Schmidt, 110 N.E. 945, 949 (1915)).  To dismiss that scholarly explanation on such an important subject as a “narrow caveat,” ante at ___ (slip op. at 2), suggests that the majority deems both this Court’s decision in Worlock and the entire notion of the deific command defense to be unworthy of our attention.  

Second, the majority overemphasizes the confined focus that this Court had in the more recent Winder decision, implying that Winder forged new ground.  In fact, this Court in Winder merely recognized that a defendant who acts based on a personal moral code cannot claim the benefit of the deific command defense that we authorized in Worlock.  The defendant in Winder made little effort to suggest that he acted pursuant to a deific command.  Rather, his defense was that there were “other delusion-based exceptions” that Worlock suggested might be available and for which he qualified.  Winder, supra, 200 N.J. at 249.  Although the Court referred to the deific command defense as a narrow one, the Court did so in the context of a refusal to expand it to one who failed to demonstrate that the delusion he identified could or did fall into the category of legal but not moral wrong.  Id. at 249-50.  Nothing in that decision suggests, as the majority today prefers, that the true deific command has lost any of its vitality as a variant of the insanity defense.  

Third, the majority’s analysis of the record today alters the distinction we recognized and applied both in Winder and in Worlock between defendants who respond to true deific commands and those whose criminal acts are instead motivated by adherence to a personal moral code.  The defendant in Worlock believed that he was permitted to kill his victims because “they’re the folly-ridden mass, they’re controlled by their popular beliefs” and because he lived by the code of “might makes right,” not because he was responding to any deific directive.  Worlock, supra, 117 N.J. at 614.  The defendant in Winder contended that he feared his parents were planning to kill him and murdered an innocent cab driver in order to be sent to prison where he would be safe from them.  Winder, supra, 200 N.J. at 236-39.  That logic, too, had all of the hallmarks of a purely personal code of conduct and none of the criteria by which a deific command can be identified.  It was in that context that we cited precedents of our own, see id. at 247-48 (citing State v. DiPaolo, 34 N.J. 279, 293 (1961)), as well as the leading authority from another jurisdiction, id. at 247 n.6 (discussing State v. Crenshaw, 659 P.2d 488, 494-95 (Wash. 1983)), that demonstrate that a belief system that is contrary to societal mores is not sufficient.

This accepted distinction between deific commands and personal moral codes is best illustrated by the decision of the Supreme Court of Washington.  See Crenshaw, supra, 659 P.2d at 494-95.  There, the defendant acted in conformance with his Muscovite beliefs which, he contended, obligated him to kill his wife for her infidelity.  Rejecting his assertion that he was entitled to claim the “sanctuary of the insanity defense,” the court held that “some notion or morality, unrelated to a mental illness, which disagrees with the law and mores of our society is not an insane delusion.”  Id. at 495.  Such a set of beliefs would no more be insane and would no more be a defense than the man who, coming from a culture where women are property and beating them is the accepted norm, claimed entitlement to walk free from the crime of assault if he beat his wife here.  See  S.D. v. M.J.R., 415 N.J. Super. 417, 431-33 (App. Div. 2010) (rejecting contention that asserted religious beliefs about husband’s marital rights negated ability to form criminal intent); see also Reynolds v. United States, 98 U.S. 145, 166, 25 L. Ed. 244, 250 (1879) (concluding that First Amendment’s guarantee of freedom of religion did not shield defendant from polygamy conviction).

The reliance on a moral code that is on its face rational but unacceptable to our legal system is not a form of insanity.  But that is not what deific commands are all about.  The reason that the deific command qualifies as a defense to murder is that it is the one corner of insanity in which legal and moral wrong do not coincide.  See Worlock, supra, 117 N.J. at 610-11.  One who acts in accordance with a sincerely held belief that he has been directed by God to carry out a murder may well appreciate that the crime is legally wrong, but will nonetheless act on the directive because he equally believes that it is a moral imperative.  And it is only by recognizing the deific command that we, as a Court, can give full meaning and content to the Legislature’s statutory definition of insanity.  N.J.S.A. 2C:4-  1.  That body chose the word “wrong” rather than the word “illegal” in defining the insanity defense; it made that choice against the backdrop of the decades, in fact more than a century, of precedent extending back to the M’Naghten  formulation of the distinction between legal and moral wrong.  This Court is not free to abandon that distinction through today’s crabbed interpretation.

Fourth, the majority redefines Worlock and Winder to suit the current purpose.  It does so by altering the meaning of deific command so that it means one thing and one thing only, namely a direct, apparently verbally transmitted, command from God to do a specific act that the defendant then cannot help himself from carrying out.  That view of deific command, however, finds no real support in any of this Court’s prior cases, nor in the precedents on which they were based.  The majority’s decision expresses a new and rigid view of just what sort of a command from God it now believes is needed to so blur the line between legal and moral wrong as to call for the Worlock charge.  Apparently only a booming voice from heaven, presumably admitting of only a singular direction, will meet the test for deific command.  That constricted version of the test serves only to substitute as part of the fabric of our law an exceedingly narrow view of religious traditions found only in the cinema.

More troubling to me, that articulation of the sort of command that the majority now finds will define the Worlock  variant on the insanity defense is sadly lacking in an understanding of either religion or psychiatry.  While I do not profess to be expert in either, there is abundant support for the proposition that deific commands come in many forms and that courts do not reject the defense based on the manner in which the instruction has been purportedly received or revealed.  See, e.g., People v. Coddington, 2 P.3d 1081, 1111 (Cal. 2000) (permitting insanity defense for defendant who believed, among other things, that God communicated to him through traffic signals and numbers), overruled in part on other grounds, Price v. Superior Court, 25 P.3d 618, 633 n.13 (Cal. 2001); State v. Blair, 732 A.2d 448, 449 (N.H. 1999) (permitting insanity defense based on defendant’s contention that God appeared while he was in “trance”); State v. Lafferty, 20 P.3d 342, 363 (Utah 2001) (permitting insanity defense for Mormon fundamentalist who killed his sister-in-law and her infant child based on God’s “removal revelation”).   

The majority’s suggestion that henceforth only a very specific variation of a command from God will suffice also ignores the fact that entirely sane people of faith profess to receive directions from God in ways far different from the cinematic version of how God speaks.  They see visions, they find directions in dreams, they feel called, they express their knowledge of the will of God in myriad different ways.  By extension, why would an insane person who believes he is directed by God to do something we would all say is illegal not similarly profess to have received that command in one of these other, entirely traditional manners?   

Indeed, if we accept, as the majority apparently does, that for an insane person, there is but one version of a deific command and that it takes the sole form of an audible voice directing an immediate action, we are resurrecting, without perhaps intending to do so, the irresistible impulse approach to insanity that we long ago discarded.  See State v. Cordasco, 2 N.J. 189, 196 (1949) (adhering to M’Naghten rule and rejecting irresistible impulse formulation of insanity); Mackin v. State, 59 N.J.L. 495, 496-97 (E. & A. 1896) (same).  This is so not because of the requirement that it be a voice, but because the majority has coupled that requirement with notions about commands, orders, and “do this now” language as to which the recipient cannot but comply.  I see no basis for such a remarkable alteration in the law that governs the insanity defense.

Nor does the majority’s opinion remain faithful to the psychiatrists’ view of what might qualify as a delusional deific command.  The experts in this case did not quarrel over whether the form in which defendant said he had received his instructions from God would suffice, they in fact agreed that defendant suffered from delusions that caused him to believe he had been called in some way by God.  What they disputed was whether it was a call to commit this murder or whether the murder was instead triggered by defendant’s history of aggressions against women, his strained and troubled relationship with the victim, or the victim’s refusal to turn over the car keys when he asked for them.  For the majority to substitute its newfound belief that God only speaks in one way, or more precisely, that we will only recognize that an insane person hears the instruction from God or the call of God in a single format, is a dramatic and unsupported departure indeed.

Fifth, the majority, rather than reviewing the evidence in the record in accordance with our usual principles concerning the review on appeal of whether there is enough evidence in the record to require that the jury be charged sua sponte, proceeds instead to draw its own conclusions about the result it would have reached about whether defendant was insane.  We have held that the trial court is obliged to charge a jury sua sponte “only when the evidence clearly indicates the appropriateness of such a charge[.]”  State v. Walker, 203 N.J. 73, 87 (2010) (considering court’s obligation to charge statutory defense to felony murder without request); see State v. Rivera, 205 N.J.  472, 488-90 (2011) (applying same standard to evaluate court’s obligation to charge any defense sua sponte); State v. Denofa, 187 N.J. 24, 41 (2006) (applying same standard in considering requirement to charge lesser-included offenses).

Utilizing our well-established test, the question is whether the evidence in the record “clearly indicates the appropriateness” of the Worlock charge.  Tested in accordance with that standard, rather than tested in accordance with the majority’s approach of viewing the evidence through the lens of its new definition of the contours of the deific command variation of insanity, one can only conclude that the substantial evidence concerning defendant’s behavior, beliefs and rationale sufficed. That there is evidence suggesting that defendant was not insane, or did not act in accordance with a deific command is not the point; rather, the existence of such evidence and the manner in which it should have been weighed and balanced is the proper function of a jury and not of this Court.  The fundamental error of the majority’s analysis is that it tries to make rational sense out of what in the end is clear evidence of a disordered and delusional mind.  Mistaking a few glimmers of lucidity or perhaps some sane behaviors for an organized thought process, the majority finds so little evidence of the deific command that it deprives defendant of the defense entirely.  In doing so, it inappropriately substitutes its view for that of the finder of fact.

III.

In the end, I dissent because the majority has adopted a crabbed view of Worlock, has announced a view of Winder not expressed by the majority of the Court who joined it, and has retreated to an indefensible understanding of concepts of insanity and deific commands.  I therefore respectfully dissent.

JUSTICE ALBIN joins in this opinion.

[1] The evidence concerning defendant’s mental illness was presented to support defendant’s insanity defense and also to show that mental illness could have affected his capacity to knowingly or purposely commit the offense. Defendant’s claim of error based on the trial court’s failure to give a diminished capacity instruction was not addressed in the Appellate Division’s resolution of this matter.

[2] In explaining an instance of such a communication that occurred prior to the events surrounding Cazan’s death, he identified a message related to his younger sister who suffered from serious seizures and was on medication. Defendant awoke one morning to inform her that he had received a message from God that she should cease taking the medication. He described the communication as follows: “His Spirit ministered to me and that I received like — a talk from Him, yes. Not, per se, did I hear His — His voice, specifically.” He explained, “I was happy that God was talking to me. I mean, I was happy about that. You know, I felt like He used me, so if He used me, there was something about me that He obviously was pleased with.”

[3] In fact, as a result of the incident involving Shakia’s friend, defendant’s family started to pursue eviction proceedings against him.

[4] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 13

[5] As explained by Dr. Santina, a hallucination occurs when the mentally ill person hears a voice or sees visions. A person experiencing delusions does not necessarily experience hallucinations, but rather he or she will come to know God is speaking to them “within themselves” and then act accordingly; thus, a delusional person may believe he or she is receiving commands from God without hearing a voice or seeing a vision.

[6] The panel granted relief on this basis alone. Although defendant had other points of error, which the State contested, the panel did not address them in light of its holding on the jury-charge issue.

[7] M’Naghten’s Case, 8 Eng. Rep. 718 (H.L. 1843).

[8] Like the situation in the cases cited by the dissent, see post at ___ (slip op. at 10), defendant was not denied the opportunity to assert an insanity defense, and the jury received the model jury charge on the defense, see People v. Coddington, 2 P.3d 1081, 1139-40 (Cal. 2000), overruled in part on other grounds, Price v. Superior Court, 25 P.3d 618, 633 n.13 (Cal. 2001); State v. Blair, 732 A.2d 448, 450 (N.H. 1999); State v. Lafferty, 20 P.3d 342, 363 (Utah 2001). Our dissenting colleagues’ observation that “deific commands come in many forms and that courts do not reject the defense based on the manner in which the instruction has been purportedly received or revealed” misses that essential point when seemingly asserting that those cases undermine what occurred in this matter. Post at ___ (slip op. at 10). Defendant’s insanity defense was not “rejected” by the trial court.

[9] In one of the few jurisdictions to have addressed such circumstances, Washington state courts similarly have hewed to a path in respect of deific commands, requiring a substantial showing that a defendant’s will has been “subsumed.” Crenshaw, supra, 659 P.2d at 494-95 (requiring that will be subsumed in order for specialized instruction to be utilized). See, e.g., State v. Rice, 757 P.2d 889, 904 (Wash. 1988) (adhering to strident test that authorizes jury instruction on legal-moral dichotomy only when defendant presents evidence that “his free will has been subsumed by his belief in the deific decree”), cert. denied, 491 U.S. 910, 109 S. Ct. 3200, 105 L. Ed. 2d 707 (1989).

[10] It is insufficient that defendant can point to isolated references he made to hearing a voice, or “hearing” God speaking to him through his scripture study or in his dreams. The Appellate Division’s citation to such examples, here and there, in the record do not comprise the quality or quantity of evidence that was contemplated by our earlier decisions. See Singleton, supra, 418 N.J. Super. at 197-99.

[11] Winder signaled a restrictive application of a deific-command variation to the model charge on criminal insanity, to the extent it would ever be allowed. The Appellate Division’s interpretation of Winder, as well as the dissent’s, instead expands it and would send even more arguable cases than this one to the jury.

[12] The defense expert testified to the following: “And [defendant] said to me that now in retrospect looking at it, he felt that God, that Satan had actually tricked him into thinking that it was God. And that God was actually trying to stop him but that he was tricked by Satan.”

While the jury is the ultimate finder of fact, we fail to see how evidence of a defendant's demeanor before and after a crime can have much probative value when a schizophrenic defendant is involved.. ..

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The proposition that a jury may infer that a person's actions before and after a crime are "indicative of his actual mental health at the time of the" crime is logical when dealing with a defendant who is not prone to delusional or hallucinogenic episodes. However, when a defendant has a serious and well-documented mental disorder, such as schizophrenia, one that causes him to see, hear, and believe realities that do not exist, such logic collapses. . . .