Skip to comments.Napolitano: Can the President Kill You?
Posted on 03/14/2012 5:23:22 PM PDT by Iam1ru1-2
Can the president kill an American simply because the person is dangerous and his arrest would be impractical? Can the president be judge, jury and executioner of an American in a foreign country because he believes that would keep America safe? Can Congress authorize the president to do this?
Earlier this week, U.S. Attorney General Eric Holder attempted to justify presidential killing in a speech at Northwestern University law school. In it, he recognized the requirement of the Fifth Amendment for due process. He argued that the president may substitute the traditionally understood due process -- a public jury trial -- with the president's own novel version of it; that would be a secret deliberation about killing. Without mentioning the name of the American the president recently ordered killed, Holder suggested that the president's careful consideration of the case of New Mexico-born Anwar al-Awlaki constituted a substituted form of due process.
Holder argued that the act of reviewing al-Awlaki's alleged crimes, what he was doing in Yemen and the imminent danger he posed provided al-Awlaki with a substituted form of due process. He did not mention how this substitution applied to al-Awlaki's 16-year-old son and a family friend, who were also executed by CIA drones. And he did not address the utter absence of any support in the Constitution or Supreme Court case law for his novel theory.
The Fifth Amendment to the Constitution states that the government may not take the life, liberty or property of any person without due process. Due process has numerous components, too numerous to address here, but the essence of it is "substantive fairness" and a "settled fair procedure." Under due process, when the government wants your life, liberty or property, the government must show that it is entitled to what it seeks by articulating the law it says you have violated and then proving its case in public to a neutral jury. And you may enjoy all the constitutional protections to defend yourself. Without the requirement of due process, nothing would prevent the government from taking anything it coveted or killing anyone -- American or foreign -- it hated or feared.
The killing of al-Awlaki and the others was without any due process whatsoever, and that should terrify all Americans. The federal government has not claimed the lawful power to kill Americans without due process since the Civil War; even then, the power to kill was claimed only in actual combat. Al-Awlaki and his son were killed while they were driving in a car in the desert. The Supreme Court has consistently ruled that the Constitution applies in war and in peace. Even the Nazi soldiers and sailors who were arrested in Amagansett, N.Y., and in Ponte Vedra Beach, Fla., during World War II were entitled to a trial.
The legal authority in which Holder claimed to find support was the Authorization for the Use of Military Force (AUMF), which was enacted by Congress in the days following 9/11. That statute permits the president to use force to repel those who planned and plotted 9/11 and who continue to plan and plot the use of terror tactics to assault the United States. Holder argued in his speech that arresting al-Awlaki -- who has never been indicted or otherwise charged with a crime but who is believed to have encouraged terrorist attacks in the U.S. -- would have been impractical, that killing him was the only option available to prevent him from committing more harm, and that Congress must have contemplated that when it enacted the AUMF.
Even if Holder is correct -- that Congress contemplated presidential killing of Americans without due process when it enacted the AUMF -- such a delegation of power is not Congress' to give. Congress is governed by the same Constitution that restrains the president. It can no more authorize the president to avoid due process than it can authorize him to extend his term in office beyond four years.
Instead of presenting evidence of al-Awlaki's alleged crimes to a grand jury and seeking an indictment and an arrest and a trial, the president presented the evidence to a small group of unnamed advisers, and then he secretly decided that al-Awlaki was such an imminent threat to America 10,000 miles away that he had to be killed. This is logic more worthy of Joseph Stalin than Thomas Jefferson. It effectively says that the president is above the Constitution and the rule of law, and that he can reject his oath to uphold both.
If the president can kill an American in Yemen, can he do so in Peoria? Even the British king, from whose tyrannical grasp the American colonists seceded, did not claim such powers. And we fought a Revolution against him.
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 six books on the U.S. Constitution. The most recent is "It Is Dangerous To Be Right When the Government Is Wrong: The Case for Personal Freedom."
Of course gangsters can kill you. It’s what makes gangsters gangsters.
Otherwise, who would fear and obey them?
Gangster Government, and Sakharov’s Immunity
Matthew Bracken, February 29, 2012
how would one feel about a President whom we liked and trusted having such powers?
I believe that the President, nor any part of the government should *EVER* have any more power under the BEST of men ( or women) than we would want it to have under the worst.
I did not like renditions, the utilization of non jury trials or pretty much any part of the PATRIOT act. the FOunding Fathers gave the government plenty of tools to do anything it needs or will ever need to do; there is NOTHING so urgent that it can’t go through being vetted by a judge before a warrant is issued unless it is an airplane. I sure as hell don’t like the precedent being set now. Yes, an enemy combatant who happens to be an American citizen who gets whacked IN THE MIDST OF A BATTLE- tough luck, other than that, the rule of law should always apply.
Just my .02
as I read this, my cursor rested over the word “Holder” so that all I could see was “H-—er” and I really thought it said “Hitler”.
This kind of thinking in the executive branch makes speculation concerning recent unfortunate events in Brentwood a little more understandable, I think.
In my opinion, if you engage in war against the United States, simply possessing U.S. Citizenship does not provide a special protection from warfare, nor does it restrict the U.S. government from engaging in warfare.
I think you have provided the perfect example.
We are not talking about collateral damage (or deaths) here but the targeting of an American citizen for assassination. A better example would have been FDR targeting Tokyo Rose for assassination for traitorous acts during war. I don’t think any one back then would have batted an eye at something like that.
I would say that Presidents have always had the power to have people killed on foreign and domestic soil (en mass in some cases) so I won’t say that this is any different. If you dance with the elephants expect to get stepped on if you’re a pigmy.
The Bush administration is developing a parallel legal system in which terrorism suspects --U.S. citizens and noncitizens alike --may be investigated, jailed, interrogated, tried and punished without legal protections guaranteed by the ordinary system, lawyers inside and outside the government say.
I agree. Would we mind if Reagan or Bush had those powers...not that any president doesn’t already have that power.
I think all leaders have that sort of power written somewhere and interpreted as conditions require. It’s just not very realistic to advertise this.
How many people just here on FR have stated that so&so should just be brought out back and shot? Pre-emptivation is alive, well and acceptable to many folk.
Anyone can do anything. Sometimes there are consequences.
Absolutely. Governments have organisations just for this purpose.
Ergo the importance of congress declaring war (and not just consenting to presidential “police actions”).
If war has not been declared, no justification for whacking someone as an “enemy combatant” because there aren’t any.
This is certainly true. However when we say "warfare" we mean a declared and recognized war, and we understand that warring sides have chosen to wage that war and they are sufficiently aware of their actions. Every soldier has an option to not fight (he might be killed for that, but he won't become a killer himself.) The state's legislators are supposed to give the military the power to repel the invasion (or to invade) until specific military goals are achieved, while obeying traditional and mutually agreed rules of warfare. For example, killing of noncombatants is not allowed; torture is not allowed; killing of captured enemy soldiers is not allowed; and so on.
The problem here is that the decision to assassinate a person was made in private, and the target was not given a chance to surrender. Perhaps he would, perhaps he wouldn't - but we will never know that. This is the reason why when someone is wanted and is known to be in a house the police used to come to the house and offer terms of surrender.
In other words, a warfighter is a legitimate target. However the said warfighter must be recognized as such. You can't send an army into the nearest Wal-Mart, shoot everyone inside and then say that they were all terrorists. You can't even throw a grenade into a room where known but unarmed thieves are planning a robbery.
The reason for that is the same reason that led to creation of Magna Carta:
"The 1215 charter required King John of England to proclaim certain liberties, and accept that his will was not arbitrary, for example by explicitly accepting that no "freeman" (in the sense of non-serf) could be punished except through the law of the land, a right which is still in existence today."
Any ruler who is the sole arbiter of life and death of his people is known today as a dictator. It does not matter if he discusses his hit list with any of his hired henchmen because the result is entirely predictable. Only the neutral, fairly selected lawmen - judges and juries - should have a say here.
In this case Al Awlaki could be indicted and offered terms of surrender. He was well connected, had email, and his whereabouts were perfectly known. A registered mail would be just fine. If he doesn't surrender then he becomes an outlaw, wanted dead or alive. The point is that the choice of surrendering vs. being targeted should belong to the accused.
Another negative aspect of blowing opponents up is that they never get a chance to face their accusers and to counter accusations against them.
Allowing extrajudicial assassinations of criminals inevitably leads to assassinations of political opponents. Criminals are just a trial balloon, to see how the society reacts, and to establish a precedent. Stalin started with show trials in 1930's, but eventually NKVD got so busy that the trial was reduced to mere rubberstamping of prewritten papers. Al Awlaki haven't gotten even that much. His fate is similar to the fate of Leon Trotsky - and nobody can debate that Stalin's orders were not exactly lawful (even though Trotsky was a bloody murderer himself, well deserving all that came his way.) If you give a US President the right to assassinate a US citizen abroad then you give the same right to Joseph Stalin - and to Mahmoud Ahmadinejad, and to Kim Jong-un, and to every lesser dictator. What would you say if King Abdullah orders Huma Abedin killed at 2201 C Street, or in the White House? (Note that it doesn't matter what Ms. Abedin thinks about her citizenship; all that matters here is what the King thinks.)
That is NOT the perfect example...
In this example, the Americans were clearly acting in a capacity as soldiers of the enemy forces. (They were on subs that were actively engaged in war on the US.)
The dead Muslim - a vile person, sure - was NOT actively engaged in acts of war that I am aware of.
This was an attempt to “look tough” on terrorism and muddy the waters on what is “allowable” to the President in the use of force.
They denied Al-Awaki(?) his Constitutional rights (he was an American), but oddly enough they wanted Constitutional trials for several terrorists in GITMO - NOT citizens - and granted Constitutional protections to the underwear bomber.
An American-born radical Muslim cleric who had emerged as both a leading voice in Al Qaeda recruiting and propaganda over the internet and, according to the US government, was also involved in operations and operational planning with Al Qaeda in the Arabian Peninsula, an offshoot Al Qaeda terrorist organization that the US governments regards as an associated force with Al Qaeda (and hence covered by the terms of the original Authorization to Use Military Force).
When it became public that the Obama administration had put Al-Aulaqi on a target list, the ACLU filed suit on his behalf through his father; it made international law arguments that included the proposition that he was outside of the war zone and hence could only be sought through law enforcement methods, as well as domestic law arguments that this amounted to the execution of a citizen designated by the President without judicial process. The suit was dismissed in December 2010 by Judge John Bates.
The thing about changing the rules in the middle of the game so that you will win is that the other players, when they find out, may decide that the rules don’t apply to them, either. Perhaps those shredding the rules of our society should consider that such a decision may have unintended consequences.