Last Updated:October 24 @ 10:20 pm

Napolitano: Can the President Kill You?

By Andrew P. Napolitano

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."

COPYRIGHT 2012 ANDREW P. NAPOLITANO

DISTRIBUTED BY CREATORS.COM

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24 Comments

  1. krispykritterComment by krispykritter
    March 14, 2012 @ 1:06 pm

    Allowing this president to substitute his own version of the Fifth ammendment is dangerous.

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    • downdraftComment by downdraft
      March 14, 2012 @ 6:33 pm

      Think back just a few months ago:

      Obama had his first taste of “blood” with the kiling of “the Pirates”, using the Navy Seals as his weapon…

      From that he got raving reviews and kudos, exposure to the Media, and he took unearned bows…

      Next, he AGAIN had a glorious taste of “blood”…which he has begun to really like…not to mention the surge of POWER…when nhe ordered “The Evil One” executed…again by his new found weapon, the Navy’s Seals…

      And he took kudos, bows, glorious respect…and again that SURGE OF POWER…

      Now we hear from the AZS OL Holder that the president AGAIN recently ordered killed New Mexico-born Anwar al-Awlaki …using a drone this time…HOW UNIQUE he thought…

      How exciting…”I did this all on my own, just by a flip of my fingers and my “weapons” respond…to please ME..Oh how exciting hthis has become…another “blood letting”…

      “AND THE SURGE OF POWER IS SIMPLY DELIGHTFUL, AND OVERWHELMING!…I COULD GET USED TO THIS!”

      This is EVIL at work folks…no other word can explain it…we have this NARCISSIS who already thinks he is the ALMIGHTY…and now we feed him more **** so his sick and depraved mind can be nourished..

      We must do something to stop this MADNESS…this MAD MAN!

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  2. Worth NotingComment by Worth Noting
    March 14, 2012 @ 1:31 pm

    While I posted this comment in response to a Washington Post article concerning this, I want to also comment here.
    I feel strongly about this and know of no other words to use, other than these, so please forgive the repitition:

    “On Feb. 22, in a speech at Yale Law School, Pentagon General Counsel Jeh Johnson said the targeted killing of those suspected of engaging in terrorist activities against the United States, including U.S. citizens, is justified and legal.”

    Hmmmm . . . to kill someone merely because they are “suspected” of something.

    That’s a tad over the top wouldn’t you say?

    And to INSIST such a thing – that the killing of someone – including U.S. citizens – merely “SUSPECTED” of something – is both JUSTIFIED and LEGAL?

    This shows clearly that the “war on terrorism” has now taken the mindset of the United States of America down a very slippery slope.

    A mindset encouraging us to quickly accept and evolve – into a reality – which we are supposedly seeking to protect ourselves from.

    A reality in which terror and fear make the rules under which we live.

    When I was a child I was told stories – of barbaric countries – where people could be “taken away” and even killed – upon orders given by unknown authorities. I was told these things were done without trials. I was told people in those barbaric countries could merely be “suspected” of wrongdoing and, if desired by the authorities, the penalty for being “under suspicion” was death.

    When I was a child these stories always ended – with how grateful we should all be – that we lived in a free and powerful country.
    A country where one could speak their mind.
    A country where we did NOT have to live in fear and terror of our own government.

    These stories were told often when I was a child.
    And I have always felt an inherent sense of pride in being part of such a good and honorable country.
    .
    Today I hear stories that the world has become a “different” and far more dangerous place.
    That to “protect ourselves” our country must now “change”.
    That our country must now allow and encourage actions that – not so very long ago at all – were considered both unacceptable and abhorrent.

    I do not accept these new stories.
    These are not words I will teach my grandchildren, for there is no wisdom in this mindset.
    I will not tell them that in order to cling to an “illusion” of safety – they must be willing to sacrifice all that is good and honorable and decent.

    Life is NOT safe and secure. Nor can it be made so.

    That’s just what is. And life has always been that way. The world has NOT changed.

    Yet regardless of the uncertainties, the dangers and the turmoil of life – one can still choose – as both a person and a country – to live one’s life with honor – proudly accepting the risks, as well as the responsibilities, of freedom.

    Other words I was taught as a child are brought to mind . . .

    For what shall it profit a man, if he shall gain the whole world, and lose his own soul?

    So how can we profit as a country, if in seeking to protect ourselves from the whole world, we lose the very soul of our country?

    The “war on terrorism” must not cost our country the freedom we’ve stood for.
    For if it does, we have truly lost.

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    • dwcoteComment by dwcote
      March 14, 2012 @ 4:16 pm

      I hate to tell you we did the same thing during WWII there were many Americans of German and Japanese descent that went back Germany and Japan and joined the military of these countries and we didn’t arrest them and try them either. We killed them when we found them because they are enemy combatants. Just because they don’t we’re uniforms doesn’t make them any less an army. There are many examples of military units that didn’t wear uniforms like the French Resistance, the Filipino Resistance and the Vietcong to name a few. Al-Qaeda in there own words have declared war on th US and have stated they would not stop until we have all converted to Islam or we’re all dead. They declared war on us and if you support them you get what you deserve. When are liberals going to get it that it’s not possible to be friends with muslims their religion won’t allow it and unlike other religions have very strict punishments like beheading and hanging for breaking these laws. While other religions reserve punishment to God; Islam however doesn’t allow freedom of choice and allows people to be judge, jury and executioner. If you want this kind of law I suggest you relocate to one of these countries.

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  3. trains4meComment by trains4me
    March 14, 2012 @ 3:11 pm

    IF an American leaves this country for another, and then plans (and carries out) attacks of ANY kind on this country, that person becomes a TRAITOR and does NOT deserve the rights given to other Americans. The only “trial” they would deserve is a bullet in the brain

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    • DaveComment by Dave
      March 14, 2012 @ 4:55 pm

      Trains,

      You might be right insofar as Congress and the President have declared war. You might be correct provided there was at least a Presidential Finding approved by selected heads of the House and Senate. Since neither of these points were used, we have yet another overreach of the Federal Government, namely, the President acting outside his power in a manner which is both treasonous and unconstitutional.

      Just like naming a “Recess Appointment” while the Senate was still in session, the President is acting and no one is stopping him. Thus, we have the instances of ‘Evil prevailing, because good men are doing nothing.’

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  4. nmleonComment by nmleon
    March 14, 2012 @ 5:00 pm

    Judge Napolitano,

    If an American citizen had gone to work in the administration of NAZI Germany during WWII would we have been legally forbidden to kill him?

    I am not a legal expert, but common sense informs me that if an individual aligns himself with and joins an army or organization that has declared war on the U.S., he has coincidentally declared himself to be an enemy combatant and as such is subject to being killed by our forces. Under those circumstances, the fact that an American citizen was specifically targeted is (to my mind) of no more significance than the targeting of any non American citizen high value target who has declared war on The U.S.

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    • DaveComment by Dave
      March 14, 2012 @ 5:09 pm

      Nmleon,

      In your scenario, during a time of declared war, officially sanctioned by Congress, then yes, that citizen has placed themselves into the out of bounds area.

      The difference is that al-Alawki, was never charged. Had President Obama and the DOJ brought the case before a Federal Judge, presented the evidence and gotten a conviction in absentia, then this would have been legal. Had the President and DOJ obtained Congressional approval using a Presidential Finding, signed by Congressional Leaders, this would have been legal.

      Since all the president did was decide and act, he has committed murder. There is no legal justification for his actions.

      While I am no ways a legal scholar, there are several other roads the president could have taken and this would have been justified. Since the president acted alone, he and the handful of advisors have no committed murder.

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    • nmleonComment by nmleon
      March 14, 2012 @ 6:09 pm

      Dave,
      An enemy combatant is fair game whatever his nationality. I guarantee you that in the three years I was in Iraq, when we engaged and killed insurgents we couldn’t have cared less whether they were Iraqi, Syrian, Libyan, American, or Martian, only that they were the enemy. That was true whether the enemy was killed in a firefight, targeted by artillery or bomb, or taken out with a drone strike.

      If an individual joins an enemy force he becomes an enemy and is subject to the same actions and Rules of Engagement as any other member of that enemy force. His nationality is irrelevant. His membership in the enemy force is the only justifying factor considered prior to action.

      There may be a legal argument that actions against enemy combatants are illegal absent the formal declaration of war, but that would lead to the logical conclusion that every military operation since WWII was illegal and that every U.S president since Truman has been guilty of murder.

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    • DaveComment by Dave
      March 14, 2012 @ 6:40 pm

      Nmleon,

      Fighting in Iraq was sanctioned by Congress, done legally in accordance to the law, and thus meets the legal requirement for killing.

      Now, I agree, terrorists who place themselves outside their own societies and then act to destroy those polities, need to go meet their god and explain their actions. No question, al-Alawki needed to go explain to Allah why he thought and did what he did. But, Obama acted outside the law when he did not follow the law, thus his killing was murder according to the law.

      Enemy combatants without a formal declaration of war have been killed legally when the law has been followed. The Presidents who have killed enemies of America between WWII and Bush, have all acted with Congressional Oversight, Constitutional law process followed, and in accordance to established procedures. Obama has not followed a single established procedure or Constitutional Process since taking office. Thus, his actions have been murder.

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    • nmleonComment by nmleon
      March 14, 2012 @ 7:43 pm

      Dave,

      The operations in Yemen (and Pakistan and elsewhere) are fully and knowingly funded by congress and are therefore as “sanctioned” as any other military actions without a formal declaration.

      Any (legal) military action is subject to military Rules of Engagement and the Uniform Code of Military Justice, NOT U.S. civil or criminal law.

      Obama has broken laws and violated the constitution often enough in reality. It’s silly to try to invent another out of whole cloth.

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    • DaveComment by Dave
      March 14, 2012 @ 9:44 pm

      Nmleon,

      Yes, the operations are funded through Congressional action. Yes, Congress authorized the use of military force in Afghanistan and Iraq. The point is, neither of these places is where Yemen is. Who authorized the hunting of terrorists in Yemen? When did Congress authorize a carte blanche hunting license for terrorists anywhere in the world without regard for Yemen’s National Sovreignity?

      This is not “Inventing” anything, Obama broke the rules in invading Libya. Never obtained Congressional Approval of the War Powers Act to attack or place troops on the ground. Yet, how much did we recently spend in an illegal war? How much did the murder of three people, one of them being an unconvicted terrorist cost?

      By not following the rules, by shirking the US Constitution, the US President and by extension, every American, now has a tremendous amount of additional blood on our hands because our elected officials are not following the law. Libya was murder, al-Alawki is murder, and this will continue until Obama stops over-reaching the US Constitution and is held accountable for his reprehensible actions.

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    • nmleonComment by nmleon
      March 15, 2012 @ 1:57 pm

      Reality check Dave, Congress has indeed SPECIFICALLY funded our current drone operations in Yemen, Pakistan, etc. as they did our actions in Libya and previous actions in Central and South America etc. under previous administrations, niceties of the WPA notwithstanding (and with the tacit or implicit permission of the respective countries, by the way).

      If the requirement for legality is that Congress know of and approve (fund) an operation then our drone operations (and others) ARE legal.

      Questioning the legality of the military program sidesteps the question at hand however. If an operation is illegal, then killing ANYBODY (of whatever nationality) would be legally murder.

      The pertinent question raised by the article is whether or not the U.S. can legally kill an American citizen who has in effect declared himself to be an enemy combatant in a presumed LEGAL military operation.

      My contention is that the nationality of enemy combatants is irrelevant.

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  5. DaveComment by Dave
    March 14, 2012 @ 5:03 pm

    Long has this particular issue bothered me. Long have I been asking where is Congress to counter the president like the checks and balances are supposed to do. Long have I wondered where is SCOTUS when the president steps over the lines.

    We have a constitutional crisis on our hands here, the exact same crisis that lead Venezuela from the hands of democracy and freedom into the hell of tyranny and oppression. One man, acting outside legal, ethical, and moral boundaries, without enough pressure from others, is running rampant and ruining our country.

    Do we stand or fall? How will our children remember us? Will we be the breakwater the waves of tyranny rush against and fail or will we fall victims in a contemptible struggle?

    The American People have always been the great unknown in the face of tyranny and oppression. Our we the current sons and daughters of America worthy of the heritage left to us? Will our children honor our struggle or curse us?

    Me, I intend to struggle and fight for the US Constitution.

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  6. Spiritof76Comment by Spiritof76
    March 14, 2012 @ 6:22 pm

    This, coupled with the authorization to hold any American who is categorized by the government as a terrorist indefinitely completes the basic requirements of a communist rule. If any body thinks we are a free nation is delusional. The sad aspect of this loss of freedom and Constitutional form of government is that we can not recover it easily. Most often, it would lead to bloodshed and the outcome may not be towards our founding principles but towards more oppression. Just witness now any other tyrannical regime and the convulsions its citizens with desire for freedom go through.

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  7. JohnComment by John
    March 14, 2012 @ 6:33 pm

    I believe this is different, in this case, we are in a war, and yes he can… I’m against this Pres all the way, but in a war you have the right to kill your enemy… but only in a war… not just any man out there, and he must be linked in the war!

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    • DaveComment by Dave
      March 14, 2012 @ 6:42 pm

      John,

      The President said the war on terrorism was over, thus his legal statute was cancelled and cleared. Thus, he is working outside the law and these were murders.

      He cannot have it both ways. He says the war is over, then uses the excuse of war to kill.

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  8. cxComment by genesal
    March 14, 2012 @ 10:03 pm

    Read this http://www.foxnews.com/us/2012/03/14/us-flag-depicting-president-obama-removed-from-floridas-lake-county-democratic/?test=latestnews
    and tell me that Obama doesn’t want to be Emperor!

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    • DaveComment by Dave
      March 14, 2012 @ 11:01 pm

      GeneSal,

      Bobby Eberle has this as an article right now in The Loft.

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    • cxComment by genesal
      March 15, 2012 @ 1:10 am

      Dang, if the article had been a snake it would’ve bit me. I don’t look at the home page much, eh?

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  9. JDZComment by JDZ
    March 14, 2012 @ 11:38 pm

    There is no question this is a slippery slope issue and I hear the arguments both ways and appreciate them, however, what worries me is the “process” used to make a decision to “take out” a US citizen. Is the process robust enough to insure it is justified and that enough of the “right” government decision makers are in agreement before it is carried out? The President and the Executive Branch cannot alone be entrusted to carry out basically, an assignation. We have to have a judge, for example, approve a search warrant before law enforcement can enter a private home to conduct a search. So, the approval should require a consensus vote of a review team made up of bipartisan congressional members, someone from the Supreme Court, someone from the DOJ, the Chairman of the joint chiefs of staff, and the final approval is the President. This has to be a rigorous decision making process with enough checks and balances involved before taking the big step to circumvent due process and kill an American citizen.

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    • nmleonComment by nmleon
      March 15, 2012 @ 2:09 pm

      We are talking about killing a self declared enemy combatant, in fact a high ranking member of an organization we are at war with (al Qaeda). I fail to see the relevance of his nationality, or the need for anyone but the military in place to be involved in the decision making process.

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  10. bgardner1952Comment by bgardner1952
    March 15, 2012 @ 5:36 am

    I took note of one sentence in this article.

    “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.”

    What is to stop the president from changing the term of elected office if this precedent is allowed ?

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  11. romneysantorumComment by romneysantorum
    March 15, 2012 @ 12:28 pm

    I refuse to call president an intruded islamic trojan horse

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