Skip to comments.A Legal Way To Kill?
Posted on 04/24/2014 5:35:08 AM PDT by Kaslin
When President Obama decided sometime during his first term that he wanted to be able to use unmanned aerial drones in foreign lands to kill people -- including Americans -- he instructed Attorney General Eric Holder to find a way to make it legal -- despite the absolute prohibition on governmental extra-judicial killing in federal and state laws and in the Constitution itself.
"Judicial killing" connotes a lawful execution after an indictment, a jury trial, an appeal and all of the due process protections that the Constitution guarantees defendants. "Extra-judicial killing" is a targeted killing of a victim by someone in the executive branch without due process. The president wanted the latter, and he wanted it in secret.
He must have hoped his killing would never come to light, because the Fifth Amendment to the Constitution could not be more direct: "No person shall be ... deprived of life, liberty or property without due process of law."
Due process has a few prongs. The first is substantive, meaning the outcome must be fair. In a capital murder case, for example, the defendant must not only be found guilty by a jury, but he also must truly be guilty.
The second prong of due process is procedural. Thus, the defendant must be charged with a crime and tried before a neutral jury. He is entitled to a lawyer, to confront the witnesses against him and to remain silent. The trial must be presided over by a neutral judge, and in the case of a conviction, the defendant is entitled to an appeal before a panel of three neutral judges.
The third prong of due process means that the defendant is entitled to the procedures "of law," that is, in the federal system, as Congress has enacted.
There are numerous additional aspects of due process, the basics of which emanate from the Constitution itself. Yet, the "of law" modifier of the constitutional phrase "due process" gives Congress, not the president, the ability to add to the due process tools available to a defendant. Congress may subtract what it has added, but neither Congress nor the president may remove any of the tools available to the defendant under the Constitution.
Now, we have a president whose principal law enforcement and intelligence officers have boasted that the president relies on a legal way to kill people without the time, trouble and cost of due process. The president himself, as well as the attorney general, boasted of this, as did the director of national intelligence and the director of the CIA. Yet, when asked by reporters for The New York Times for this legal rationale, Holder declined to provide it. He argued that the legal rationale for the presidential use of extra-judicial killings was a state secret, and he dispatched Department of Justice (DoJ) lawyers to court, where they succeeded in persuading a federal judge in New York City to deny the Times' application to order the government's legal rationale revealed.
How can a legal rationale possibly be a state secret? The facts upon which it is based could be secret, but the laws are public, the judicial opinions interpreting those laws are public, and there are no secret non-public parts of the Constitution. Yet notwithstanding the above observations, the Times lost.
The judge who dismissed the case obviously was uncomfortable doing so. She wrote: "The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself struck by a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules -- a veritable Catch-22. I can find no way around the 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 reason for their conclusion a secret."
Two weeks after Judge Colleen McMahon begrudgingly dismissed that case, the feds decided to gloat, and so they leaked a 16-page summary of their "secrets" to a reporter at NBC News. To the federal appeals court to which the Times appealed, that was the last straw. It is one thing, the appellate court ruled, for the president and his team to boast that they know how to kill legally by finding a secret "adequate substitute" for due process and keeping the secret a secret, but it's quite another for them to reveal a summary of their secrets to their favorite reporters.
Thus, earlier this week, a three-judge panel of the U.S. Court of Appeals for the Second Circuit unanimously ordered the DoJ to reveal publicly its heretofore secret rationale for extra-judicial killing.
Welcome to the strange new world of Barack Obama's war on terror, in which there are no declarations of war against countries that foment or harbor enemy activities, as the Constitution authorizes, and in which the president claims the powers of a king by killing whomever he wishes under a rationale that his lawyers wrote for him and that he has desperately tried to keep secret.
The Obama administration is probably right to fear the revelation of this so-called legal way to kill. The appellate court decision is a profound and sweeping rejection of the Obama administration's passion for hiding behind a veil of secrecy. But it is not a decision on the merits: It does not address whether the president may kill, and it only lifts a small corner of his veil.
We already know that behind Obama's veil lies a disingenuous president who claims he can secretly kill fellow Americans. Who knows what else we will find?
obama is going to have to face justice in this world or the next
Its one long curtain. thats for sure.
It’s obvious from his love for homosexuality that he’s been turned over to a reprobate mind, damned with no hope of salvation (see Romans 1). So it’ll be the next world that he faces eternal merciless torture, and his praetorian guard and all who agree with him will be right there beside him.
I’m not sure what all the legalese is about, but I have no issue with droning anyone caught working with the islamo crowd.
I have another, Obamacare.
Of course "domestic terrorists" will be anyone that supports the constitution as written. Said constitution is quite clear about the government killing people.
The legalese is saying that, in the case of an American citizen taking up arms with terrorists, they are still given the protections of the Constitution. Like it or not, that is the law and BHO has disregarded the Constitution, which should give every sane person pause.
My only issue with Judge Napolitano's argument is this:
In a capital murder case, for example, the defendant must not only be found guilty by a jury, but he also must truly be guilty.
This is a non-sequitor and impossible to substantiate. If we knew a person to be 'truly' guilty, then no jury would be necessary. A jury analyzes the evidence as presented and makes a decision based upon the facts and their merit. The premise contradicts the mechanics as we cannot view the actions as if we were on the scene at the time.
My vote is for the here and now
It is ok for Obama to be judge, jury and executioner and assassinate US citizens by remote control. But whatever you do don’t waterboad terrorists because that would be wrong.
$5 says the “rationale” will say it is not only OK to kill American citizens overseas without due process (or with what they’ve concocted as a substitute for it) ... it will say it is OK anywhere - including within the US. That’s probably what they really don’t want revealed, that they’ve given themselves permission to kill anyone, anywhere, anytime.
Either way...that man is going to rue the day he ever decided to listen to Frank M. Davis and all of the ilk he surrounded himself with over the years.
God literally laughs at people like him.
In my simple mind, if someone is caught red handed working with the islamofacists, and they are not a mole, then it’s fire for effect.
Is this the issue?
“...use unmanned aerial drones in foreign lands to kill people — including Americans ...a targeted killing of a victim by someone in the executive branch without due process.”
First of all, whether the drone is manned or unmanned is not the issue. For some people it bears a very strong emotional factor, but that is all. Tomahawk cruise missiles, laser guided 500 lb bombs, 155mm artillery shells and 81 mm mortar rounds are all “unmanned aerial” instruments of death.
The issue is two fold: firstly, “can enemy combatants be killed in foreign lands”, and secondly, must Americans who are fighting on the side of the enemy first be read their Miranda rights, have a properly documented chain(s) of evidence, tried and convicted by jury of their peers and sentenced by a judge (all elements of ‘due process’) before they can be engaged as a target?
I have zero respect for Obama. However, in this case I believe that Judge Napolitiano is barking up the wrong tree.
A more pertinent question is “can Americans suspected or even convicted of breaking one of the innumerable rules issued by the various administrative departments, but not found guilty by due process of any CRIME punishable by death, be engaged by heavily armed SWAT teams, snipers, armored vehicles, etc?”
Are the members of the Executive branch who order such domestic attacks guilty? Are the team members who carry out such attacks also guilty?
If the issue has not already been addressed much earlier in our history, run the question by the Supreme Court, “is an American citizen fighting for the enemy a legitimate target, trial or no trial?”
While you’re at it, ask the Supremes if deadly force legally can be applied to citizens in the USA when the death penalty has not been judicially decreed?
True enought. With terrorists on the battlefield, they wear no uniform and are thus not protected by the Geneva Conventions. Further, it is impossible to distinguish a US citizen when they look like all of the other bad guys, complete with automatic weaponry pointed at you. The grey area is UAV aerial assault. Were the Congress to have declared war on Afghanistan, then there would not be any issue.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Which is why the leftists are intent on loading the courts with like-minded judges, so they can claim "due process" in their tyranny.
And that my friend is the basis for governmental tyranny, “he who trades liberty for security deserves neither liberty nor security” Franklin
I’ve always believed that ANY of our American Presidents, in their role as our Commander in Chief, can and should have the power to slay the blood enemies of this country. If Islamic radical baby killers and woman whippers and legal rapists in foreign lands do not fit that bill then no one does which means our country is defenseless against these kind of killers.
THIS IS WHAT WE ELECT A PRESIDENT FOR, to make these kind of decisions. As much as I loath Obama and his cabal of associates, I agree with this drone program killing killers over seas.
And any assassinations of "domestic terrorists" here won't be done with drone strikes. They will make it look like a fatal street mugging or "knockout" game, and the perp will never be found.
Clive Bundy needs to watch his back.
If the administration can do illegal things without due process & in secret,then they should have little to complain about if the tables get turned on them. When the police break the law,there is (effectively)no law.
Did Osama bin Laden receive due process or a declaration of war before the US military killed him?
Did Judge Napolitiano question that killing, too?
Osama bin Laden was killed by SEAL Team6, not by drones, which is the cowardly way the administration prefers
If he can do it to them, he can do it to us. This type of power in the hands of the executive branch led by a crypto-marxist is for more dangerous than Islamic terrorists.
I would not trust this type of power for any president be he far left, far right or middle.