Obama's secret court for killing
By Andrew P. Napolitano
Published: Saturday, Feb. 16, 2013, 9:00 p.m.
President Obama willingly admits that he dispatched CIA agents to kill an American and his teenage son and the son's American friend while they were in a desert in Yemen in 2011. He says he did so because the adult had encouraged folks to wage war on the United States and the children were just “collateral damage.”
The adult was never charged with a crime or indicted by a grand jury; he was just targeted for death by the president himself and executed by a CIA drone.
International law and the law of war, to both of which the U.S. is bound by treaty, as well as federal law and the Judeo-Christian values that underlie the Declaration of Independence and the Constitution all provide that the certainty of the identity of a human target, the sincerity of the wish for his death, the perception of his guilt and imminent danger are insufficient to justify the government's use of lethal force against him.
The president may only lawfully kill after due process, in self-defense or under a declaration of war.
The reasons for the constitutional requirement of a congressional declaration of war are to provide a check on the president's lust for war by forcing him to obtain formal congressional approval, to isolate and identify the object of war so the president cannot kill whomever he pleases, to confine the warfare to the places where the object's military forces are located so the president cannot invade wherever he wishes, and to assure termination of the hostilities when the object of the war surrenders so the president cannot wage war without end.
But when war is waged, only belligerents may be targeted, and advocating violence against the U.S. is not an act of wartime violence and does not make one a belligerent. Thus, if New Mexico-born Anwar al-Awlaki had been shooting at American troops at the time the government took aim at him, naturally, the troops could have shot back. But when he merely encouraged others to shoot, his behavior was protected by the natural law, the First Amendment and numerous federal statutes.
The murder of al-Awlaki's Colorado-born son and the son's American friend are not even arguably defensible, and the president's spokesman who suggested that the young al-Awlaki should have “chosen a different father” shows a seriously defective thought process and an utter antipathy for the rule of law in places of power.
We now confront the truly unthinkable: a proposal to establish yet another secret court, this one with the authority to authorize the president and his designees to kill Americans. This proposal has come from Congress, which seems more interested in getting in on the killing than in upholding the Constitution. The federal government only has the lawful powers the states delegated to it. As the states cannot kill Americans without due process, neither can the feds. Congress cannot create this killing court, and no judge on such a Stalinesque court can authorize the president to kill.
The president has made a political calculation that it will be easier for him to justify killing folks he can demonize than it will be to afford them due process, by capturing, housing and trying them. Now, he has come to believe that it will be easier still if unnamed federal judges meeting in secret take the heat.
When the president kills without due process, he disobeys the laws he has sworn to uphold, no matter who agrees with him. When we talk about killing as if it were golf, we debase ourselves. And when the government kills and we put our heads in the sand, woe to us when there is no place to hide.
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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