Posted on 02/07/2013 4:53:51 PM PST by smoothsailing
After stonewalling for more than a year 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 -- claiming the research was so sensitive and so secret that it could not be revealed without serious consequences, the government sent a summary of its legal memos to an NBC newsroom earlier this week.
This revelation will come as a great surprise, and not a little annoyance, to U.S. District Court Judge Colleen McMahon, who heard many hours of oral argument during which the government predicted gloom and doom if its legal research were subjected to public scrutiny. She very reluctantly agreed with the feds, but told them she felt caught in "a veritable Catch-22," because the feds have created "a thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret."
She was writing about President Obama killing Americans and refusing to divulge the legal basis for claiming the right to do so. Now we know that basis.
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. It is the power we have arguably fought countless wars to prevent from arriving here. 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. This spawned follow-up lawsuits, in one of which McMahon gave her reluctant ruling.
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.
The president cannot lawfully order the killing of anyone, except according to the Constitution and federal law. Under the Constitution, he can only order killing using the military when the U.S. has been attacked or when an attack is so imminent that delay would cost innocent lives. He can also order killing using the military in pursuit of a declaration of war enacted by Congress.
Unless Obama knows that an attack from Yemen on our shores is imminent, he'd be hard-pressed to argue that a guy in a car in the desert 10,000 miles from here -- no matter his intentions -- poses a threat so imminent to the U.S. that he needs to be killed on the spot in order to save the lives of Americans who would surely die during the time it would take to declare war on the country that harbors him, or during the time it would take to arrest him. Under no lawful circumstances may he use CIA agents for killing. Surely, CIA agents can use deadly force defensively to protect themselves and their assets, but they may not use it offensively. Federal laws against murder apply to the president and to all federal agents and personnel in their official capacities, wherever they go on the planet.
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. His attorney general has argued that the president's careful consideration of each target and the narrow use of deadly force are an adequate and constitutional substitute for due process. No court has ever approved that. And his national security adviser has argued that the use of drones is humane since they are "surgical" and only kill their targets. We know that is incorrect, as the folks who monitor all this say that 11 percent to 17 percent of the 2,300 drone-caused deaths have been those of innocent bystanders.
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?
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Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is "Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom." To find out more about Judge Napolitano and to read features by other Creators Syndicate writers and cartoonists, visit www.creators.com.
COPYRIGHT 2013 ANDREW P. NAPOLITANO
DISTRIBUTED BY CREATORS.COM
Americans are supposed to disarm, voluntarily
new Yorkers are having their weapons confiscated
the fedgov has bought 1.6 billion rounds in 10 months
and now drones can kill anyone, without proof or legal argument... on the merest whim of the current _resident
........
Did we give trials to Americans who joined up with the Nazis in WWII, who were physically located in Germany or occupied areas of Europe? I’m not “getting” this seemingly newfound concern for those who join our enemies. These are treasonous and traitorous saboteurs, caught in the act, overseas plotting terrorist attacks against our nation. No, my stance on killing our enemies doesn’t change because its a different administration pulling the trigger.
Bombing Al Qaeda cells in Yemen doesn’t equate to tyranny at home. No one is bombing American citizens who haven’t already turned their back on the rest of us, joining up with our enemies. Just consider it a revocation of citizenship.
to one world govt types... do you think they believe there is a difference between Riyadh and Toledo?
>> But they most certainly should have charged him with treason and attempted to get him in the normal way, on the battlefield.
Agreed, but Obama’s followers might have made that an impossibility — easier to ask for forgiveness than permission no doubt the hypocrite thought.
I'd shoot him and any other Al Qaeda planner without batting an eye, legal or not. He could be Arnold Schwarzeneggar's lovechild, and wrapping himself in the Red, White, and Blue, but if he was an Al Qaeda planner, I'd pull the trigger first and shed crocodile tears later.
Go the "Al Awlaki Killed" threads from last year(?) and see how many were grieving.
People on here are acting like this government has never run a hit on anyone in the past. That's crazy.
If it seems "incompatible with" the Constitution, why are you agreeing with the corruptocrats in Obama's Totalitarian Regime, judge lady? You're worthless.
So now we're down to "ends justify means," expecting government to just kill fellow citizens without any due process just because they (supposedly) threaten you, thus putting you on the level of Lenin, Hitler, and Pol Pot. Congratulations. Just how much of a threat was Al Awlaki to you, personally, ginning up idiot terrorists in Yemen? Really. Please list the threats he posed that were so imminent you feel it necessary to blow off the Fifth Amendment because you couldn't wait for a judge to issue a warrant.
Go the "Al Awlaki Killed" threads from last year(?) and see how many were grieving.
As I said, this has NOTHING to do with whether or not he should have been killed, but whether we should empower the administrative branch of government to kill a citizen without the due process of law pursuant to the Constitution for the United States.
You know, that document that supposedly protects you that you'd now like to water down to nothing. I guess you don't care about that.
People on here are acting like this government has never run a hit on anyone in the past.
An American citizen is not just "anyone."
That's crazy.
No, you are, as you have amply shown. You are setting up provisions just as dangerously self-destructive as was the PATRIOT Act. We didn't need warrantless wiretaps to protect this country. We needed citizens to gather evidence, round up those Muzzie thugs, bring them to a court, and get them deported.
http://en.wikipedia.org/wiki/Authorization_for_Use_of_Military_Force_Against_Terrorists
http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/pdf/PLAW-107publ40.pdf
Joint Resolution
To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.
Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and
Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and
Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and
Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and
Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
...
(a) IN GENERAL. — That the President is authorized to 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.
If an American citizen is fighting alongside our enemies in a war authorized by Congress, and they are killed in the course of that war, what is at issue? Are they not traitors, enemy collaborators, and illegal combatants in a war against the United States? If so, why is their "citizenship" worthy of protection?
Are many of you just being inconsistent with your ideology because it's the Obama Administration pulling the trigger instead of the Bush Administration?
There is no issue in killing an American traitor fighting with the enemy in a declared war. That is not equivalent to a government issuing an order for a targeted killing of an American citizen not engaged in active battle in a foreign country.
You do understand the distinction? I made that distinction when I posted. Please be more careful.
Are many of you just being inconsistent with your ideology because it's the Obama Administration pulling the trigger instead of the Bush Administration?
Not a bit. Are you being inconsistent with regard to the distinction vis a vis the Constitution? Absolutely.
This is a Congresionally-authorized war, and an easy argument can be made that an Al Qaeda camp in the deserts of Yemen is a battlefront on the War on Terror (and any American contained within an Al Qaeda camp is an assumed collaborator and illegal combatant), just as a similar target in Afghanistan would be, whether actively shooting at American troops at the time of the said drone strike.
I am careful; I disagree with your distinction. My point is that everyone here was "rah, rah, rah" and "let's roll" in 2002, and I know it's difficult to support Executive power 10 years later when Obama wields it...
Note the exclusive use of the past tense. By the statute upon which your argument relies, the only acts authorized are those directed at those who caused 9-11. Note also that the act uses the term "international terrorism." Should Al Awlaki have returned to the US to commit such an act, it would then have been domestic terrorism, as he is a US citizen.
There is no getting around the need for a check on Presidential power to simply execute an American citizen simply because he perceives a threat. Such does not constitute due process. Under the Constitution, the President can only order killing using the military when the U.S. has been attacked or when an attack is so imminent that delay would cost innocent lives. There is no evidence that Al Awlaki or his son constituted such a threat. Indeed, there is evidence that they were not combatants at all. Hence, they should have been arrested and tried for treason. The President has no legitimate power of execution, especially for the son.
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