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The U.S. kidnapping of Abu Anas al-Libi was patently illegal

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By Andrew P. Napolitano
Saturday, Oct. 12, 2013, 9:00 p.m.

Before you rejoice that the government has seized an alleged terrorist in Libya who was indicted for planning the notorious 1998 U.S. embassy bombings in Africa, please give some thought to the rule of law.

Last weekend, a team of Navy SEALs kidnapped a Libyan, Abu Anas al-Libi, off a public street in Tripoli. The Navy men did not have a warrant for his arrest, did not have the permission of the local authorities or the Libyan government to carry out this kidnapping and were unlawfully present bearing arms in public in Libya.

Many of al-Libi's alleged accomplices already had been arrested, prosecuted and convicted in the United States. The U.S. could have sought his extradition, as it did with some of them, had President Obama not bombed the American-friendly government of Col. Moammar Gadhafi out of existence, without a congressional declaration of war.

Obama apologists have praised this maneuver as a bloodless way to obtain justice without using drones to kill. How low we have sunk when Obama can be praised for not executing someone with a drone.

Secretary of State John Kerry, acknowledging that al-Libi is innocent until proved guilty, has claimed that the rule of law was followed here because he will be brought to a civilian U.S. court for trial. It borders on the ridiculous for Kerry to profess fidelity to the rule of law when this criminal gambit was anything but.

We are not at war with Libya. We cannot lawfully — under international law, American law or Libyan law — engage in law enforcement or offensive operations in Libya without the express consent of the local and national authorities.

And as a defendant in federal court in the Second Circuit, al-Libi must be brought to a federal judge in New York City within 48 hours of his arrest.

Don't hold your breath waiting for him in lower Manhattan, as the feds will “debrief” al-Libi aboard ship before turning him over to federal prosecutors for trial. One can only imagine what that debriefing will be like. It will no doubt consist of torture. That's why the interrogation is being conducted on the high seas, where the government will claim it is free to disobey any federal law. And that's why the Geneva Conventions prohibit housing prisoners of war aboard ship.

What kind of government seeks venues in which it can break the law?

Wherever the American government goes and whatever it does, it remains subject to the confines of the Constitution.

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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