By Andrew P. Napolitano

Published: Saturday, February 9, 2013, 9:00 p.m.
Updated: Wednesday, February 20, 2013

After more than a year stonewalling federal judges and ordinary citizens, who sought the revelation of its secret legal research justifying the presidential use of drones to kill persons overseas (even Americans), and claiming that the research was so sensitive that it could not be revealed without serious consequences, the government sent a summary of its legal memos to an NBC newsroom last week.

This revelation will come as a great surprise, and not a little annoyance, to U.S. District Court Judge Colleen McMahon, who heard hours of oral arguments during which the government predicted gloom and doom if its legal research were subjected to public scrutiny. She reluctantly agreed. The undated and unsigned 16-page document leaked to NBC refers to itself as a Department of Justice white paper. Its logic is flawed, its premises are bereft of any appreciation for the values of the Declaration of Independence and the supremacy of the Constitution, and its rationale could be used to justify any breaking of any law by any “informed, high-level official of the U.S. government.”

The quoted phrase is extracted from the memo, which claims that the law reposes into the hands of any unnamed “high-level official,” not necessarily the president, the lawful power to decide when to suspend constitutional protections guaranteed to all persons and kill them without any due process whatsoever. This is the power claimed by kings and tyrants. It is the power most repugnant to American values.

Now, under Obama, it is here.

This came to a boiling point when Obama dispatched CIA drones to kill New Mexico-born and al-Qaida-affiliated Anwar al-Awlaki while he was riding in a car in a desert in Yemen in September 2011. A follow-up drone, also dispatched by Obama, killed Awlaki's 16-year-old Colorado-born son and his American friend. Awlaki's American father sued the president in federal court in Washington, D.C., trying to prevent the killing. Justice Department lawyers persuaded a judge that the president always follows the law and, besides, without any evidence of presidential law breaking, the elder Awlaki had no case against the president.

Within three months of that ruling, the president dispatched his drones and the Awlakis were dead.

Then the white paper appeared. It claims that if an American is likely to trigger the use of force 10,000 miles from here, and he can't easily be arrested, he can be murdered with impunity. This notwithstanding state and federal laws that expressly prohibit non-judicial killing, an executive order signed by every president from Gerald Ford to Obama prohibiting American officials from participating in assassinations, the absence of a declaration of war against Yemen, treaties expressly prohibiting this type of killing, and the language of the Declaration, which guarantees the right to live, and the Constitution, which requires a jury trial before the government can deny that right.

Obama has argued that he can kill Americans whose deaths he believes will keep us all safer, without any due process whatsoever. No law authorizes that. Did you consent to a government that can kill whom it wishes? How about one that plays tricks on federal judges? How long will it be before the presidential killing comes home?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.

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