Last Updated:December 1 @ 07:49 am

Napolitano: Obama's Secret Court for Killing

By Andrew P. Napolitano

President Obama willingly admits he dispatched CIA agents to kill an American and his teenage son and the son's American friend while they were in a desert in Yemen in 2011. He says he did so because the adult had encouraged folks to wage war on the United States and the children were just "collateral damage." He says further that he'll do this again when he is convinced that killing Americans will keep America safe. He says he knows the adult encouraged evil, and his encouragement caused the deaths of innocents. The adult was never charged with a crime or indicted by a grand jury; he was just targeted for death by the president himself and executed by a CIA drone.

International law and the law of war, to both of which the U.S. is bound by treaty, as well as federal law and the Judeo-Christian values that underlie the Declaration of Independence (which guarantees the right to live) and the Constitution (which permits governmental interference with that right only after a congressional declaration of war or individual due process) all provide that the certainty of the identity of a human target, the sincerity of the wish for his death, the perception of his guilt and imminent danger are insufficient to justify the government's use of lethal force against him. The president may only lawfully kill after due process, in self-defense or under a declaration of war.

The reasons for the constitutional requirement of a congressional declaration of war are to provide a check on the president's lust for war by forcing him to obtain formal congressional approval, to isolate and identify the object of war so the president cannot kill whomever he pleases, to confine the warfare to the places where the object's military forces are located so the president cannot invade wherever he wishes, and to assure termination of the hostilities when the object of the war surrenders so the president cannot wage war without end.

But when war is waged, only belligerents may be targeted, and advocating violence against the U.S. is not an act of wartime violence and does not make one a belligerent. Were this not so, then nothing would lawfully prevent the U.S. from killing Americans who spoke out in favor of al-Qaida, and then killing Americans who spoke out against war and killing, and then killing Americans whose words became an obstacle to killing.

That's the reason the enabling federal legislation enacted in support of the 2001 Authorization for Use of Military Force specifically exempts expressive conduct from the ambit of prohibited criminal or warlike behavior that can provide the basis for any government prosecution or military belligerence. So, the feds can shoot at a guy with a bomb in his hands when he is about to explode it, but not at a guy with a megaphone in his hands when he is about to speak through it.

Thus, if New Mexico-born Anwar al-Awlaki had been shooting at American troops at the time the government took aim at him, naturally, the troops can shoot back. But when he merely encourages others to shoot, his behavior is protected by the natural law, the First Amendment and numerous federal statutes. As well, he was 10,000 miles from the U.S., never known to have engaged in violent acts, and having a private conversation at a roadside cafe in a desert when he was killed. No law or legal principle justifies the U.S. government killing him then and there; in fact, numerous laws prohibit it.

The president's use of the CIA for offensive killing also violates federal law. Intelligence agents may only lawfully kill in self-defense, not offensively. Only the military may lawfully kill offensively. In the al-Awlaki case, intelligence sources have confirmed to Fox News that a team of American and Yemeni intelligence agents had followed al-Awlaki and had him under continuous observation at the time of his killing and for the preceding 48 hours. They easily could have arrested him -- had he been charged with a civilian crime or a war crime, which he wasn't.

Of course, the murder of his Colorado-born son and the son's American friend are not even arguably defensible, and the president's spokesman who suggested that the young al-Awlaki should have "chosen a different father" shows a seriously defective thought process and an utter antipathy for the rule of law in places of power.

We now confront the truly unthinkable: a proposal to establish yet another secret court, this one with the authority to authorize the president and his designees to kill Americans. This proposal has come from Congress, which seems more interested in getting in on the killing than in upholding the Constitution. The federal government only has the lawful powers the states delegated to it. As the states cannot kill Americans without due process, neither can the feds. Congress cannot create this killing court, and no judge on such a Stalinesque court can authorize the president to kill.

The president has made a political calculation that it will be easier for him to justify killing folks he can demonize than it will be to afford them due process, by capturing, housing and trying them. Now, he has come to believe that it will be easier still if unnamed federal judges meeting in secret take the heat. Politically, the president may be correct. But he has taken an oath to uphold the Constitution, and he lacks the moral and legal basis to reject that in favor of killing.

When he kills without due process, he disobeys the laws he has sworn to uphold, no matter who agrees with him. When we talk about killing as if it were golf, we debase ourselves. And when the government kills and we put our heads in the sand, woe to us when there is no place to hide.


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



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  1. David in MAComment by David in MA
    February 14, 2013 @ 8:51 am

    My $20 bet is the guy was aware of gun running and financing of islamic terrorists by the obozo crime gang, just like benghazi, and was illimunated, the son & friend just happened to be in the wrong place at the wrong time.

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  2. lwessonComment by lwesson
    February 14, 2013 @ 10:02 am

    Might I add, that Senator Rand Paul asked CIA nominee, John Brennan IF Drones could be used inside the US to kill Americans. A rather straight forward question. Brennan would not answer!

    Judge Napolitano has covered this issue and the ability to parse legalese words in such a way, that indeed, the RULES could apply to just such a situation. Now we have Brennan showing us by his inability to say yes or no, that Napolitano and many others were right in their assumption.

    I have some bets to collect today! Thank you Senator Rand Paul!

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  3. whitComment by whit
    February 14, 2013 @ 1:36 pm

    Thank god we outlawed water boarding !

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  4. JambleComment by Jamble
    February 14, 2013 @ 3:30 pm

    Judge Napolitano has written a chilling condemnation of the Obama’s administration’s drone policy.

    However, he has left out some facts that make the policy even more sinister.

    Anwar Al Alaki was not killed along with his son. He was killed with another allegedly traitorous American named Samir Khan.

    Even if the Obama administration could somehow justify these killings, how can they account for the murder of Alaki’s son, Abdulrahman al-Awlaki, who was killed in a separate drone strike–2 WEEKS LATER? Abdulrahman had not seen his father for 2 years before he was killed while eating in an outdoor cafe with his 17-year-old cousin.

    Obama spokesman, Robert Gibbs, justified the killing by saying that the boy should have had a more “responsible father.”

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    • lwessonComment by lwesson
      February 14, 2013 @ 4:49 pm

      “A more responsible father” Really? Does Mr. Gibbs in Washingtoon have children? I guess in his world view, he is of course, most “responsible”. Thank you Jamble, I missed this horrible statement. (No, I do not like in any way the murderous, savage, Muslim Cabal. Stop importing them to “my” country)

      This is a kind of madness Mister Gibbs. Assassinations are not necessarily user friendly, but are most historical & reciprocal. At times in America, assassinations were not not proper Cricket but once played in releasing the “Assassin Dog” then it was anyone’s guess as to what would happen, who would really be bitten.

      For example. The US Dahlgren Raid to kill any and all Confederate States Representatives and the President (Jeff Davis) himself, was most poorly received. Bill O’Reilly’s writer/historian, Martin Dugard, in, Killing Lincoln, skipped this MOST inconvenient item. Word got quickly around even without the Net. I am certain that John Wilkes Booth was not amused, but then US Secretary of War Edwin M. Stanton had other designs with, so it would seem, Booth. (mentioned far too casually as a quick aside in the book)

      Sadly, and I mean this, Lincoln was killed and this served, what remained of the shattered nation, poorly.

      Now, I do wonder, if Drones are used here, will Gibb be so glib on parenting associations?

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  5. CynComment by Cyn
    February 14, 2013 @ 4:41 pm

    Take a GOOD LOOK at what is happening in Syria right now. Unarmed citizens are systematically being slaughtered for opposing government actions. (60,000 to date & 1.2 Million on the run)

    The ONLY difference here is that our ‘Executive Branch’ has ‘drones’ and reserves the RIGHT to use them on Americans. We need MORE ARMS, NOT LESS.

    Some people cannot think outside of MSNBC & CNN.

    Thank you, Judge Napolitano for your voice of reason

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  6. rzraickComment by rzraick
    February 14, 2013 @ 11:22 pm

    Sometimes it seems that we have lost our moral compass. Some people cannot think past their fear, and/or hatred.

    Regarding the first ammendment, I have said in the past that I would rather live in a nation who would allow Adolf Hitler to say anything he wants, as long as I can get on the same soap box and say why I think he is wrong.

    Free speech is protected so that we can critisize the government. No matter what this guy said, the way to counter it is to say why he is wrong. Not to kill him.

    But the most telling of the idiocy and madness which is growing in our government and in the minds of many of our people is made evident by the killing of the son.

    It was an act based on fear, and on hatred. Just consider the justification offered by Gibbs. If you actally buy into this illogic, then you need to habe your brain replaced at once. It is defective.

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    • lwessonComment by lwesson
      February 15, 2013 @ 10:40 am

      I wonder what kind of recruiting force Drone attacks are for Muslims? With the “collateral damage” of those too close by, no doubt the wailing cry of VICTIM will be used and resonate both far and wide.

      Now of course, if Muslims had the ability to apply Drones the way we do, over our territory, without a doubt they would gleefully use them, and care nothing about innocents killed as the Infidels are never really innocent. Think of the 9/11 jet airliners as a kind of manned piloted Kamikaze “Drones”. Muslims cheered such tactics.

      This conflict is an ongoing one since the advent of Islam. Another bloody page in the chronicle of the war has been added.

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  7. rzraickComment by rzraick
    February 14, 2013 @ 11:28 pm

    The idea that some sort of secret court, is the answer the citicism of the lack of due process, is also ridiculous.

    It is an attempt to justify the unjustifiable. Secrecy and due process can not co-exist.

    For Obama this is an attempt to appear ti add some legitimacy, to what is illegitiment at its core.

    We cannot be so foolish, ignorant, or blind as to think this is okay.

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