When Presidents Kill

No law permits — and prevailing U.S. judicial jurisprudence absolutely prohibits — summary murders of people not engaged in violence, at sea or anywhere else, writes Andrew P. Napolitano.

By Andrew P. Napolitano

During the past six weeks, President Donald Trump has ordered U.S. troops to attack and destroy four speed boats in the Caribbean Sea, 1,500 miles from the United States. The president revealed that the attacks were conducted without warning, were intended not to stop but to kill all persons on the boats, and succeeded in their missions.

Trump has claimed that his victims are “narco-terrorists” who were planning to deliver illegal drugs to willing American buyers. He apparently believes that because these folks are presumably foreigners, they have no rights that he must honor and he may freely kill them. As far as we know, none of these nameless, faceless persons was charged or convicted of any federal crime. We don’t know if any were Americans. But we do know that all were just extrajudicially executed.

Can the president legally do this? In a word: NO. Here is the backstory.

Limiting Federal Powers

The U.S. Constitution was ratified to establish federal powers and to limit them.
Congress is established to write the laws and to declare war. The president is established to enforce the laws that Congress has written and to be commander-in-chief of the armed forces.

Restraints are imposed on both. Congress may only enact legislation in the 16 discrete areas of governance articulated in the Constitution — and it may only legislate subject to all persons’ natural rights identified and articulated in the Bill of Rights.

The president may only enforce the laws that Congress has written — he cannot craft his own. And he may employ the military only in defense of a real imminent military-style attack or to fight wars that Congress has declared.

The Constitution prohibits the president from fighting undeclared wars, and federal law prohibits him from employing the military for law enforcement purposes.

The Fifth Amendment — in tandem with the 14th, which restrains the states — assures that no person’s life, liberty or property may be taken without due process of law. Because the drafters of the amendment used the word “person” instead of “citizen,” the courts have ruled consistently that this due process requirement is applicable to all human beings.

Basically, wherever the government goes, it is subject to constitutional restraints.

Tribunal Trial

Traditionally, due process means a trial. In the case of a civilian, it means a jury trial, with the full panoply of attendant protections required by the Constitution.
In the case of enemy combatants, it means a fair neutral tribunal.

The tribunal requirement came about in an odd and terrifying way. In 1942, four Nazi troops arrived via submarine at Amagansett Beach, New York, and exchanged their uniforms for civilian garb. At nearly the same time, four other Nazi troops arrived via submarine at Ponte Vedra Beach, Florida, and also donned civilian clothing. All eight set about their assigned task of destroying American munitions factories and infrastructure. After one of them went to the F.B.I., all eight were arrested.

At trial, all eight were convicted of attempted sabotage behind enemy lines — a war crime. The Supreme Court quickly returned to Washington from its summer vacation and unanimously upheld the convictions. By the time the court issued its formal opinion, six of the eight had been executed. The two Americans were sentenced to life in prison. Their sentences were commuted five years later by President Harry Truman.

The linchpin to all this was President Franklin D. Roosevelt’s decision to appoint counsel and have a trial. The Supreme Court made it clear that even unlawful enemy combatants — those out of uniform and not on a recognized battlefield — are entitled to due process; and, but for the trial afforded to the Nazi saboteurs, it would not have permitted their executions.

This jurisprudence was essentially followed in three Supreme Court cases involving foreign persons whom the George W. Bush administration had arrested and characterized as enemy combatants detained at the U.S. Naval Base in Guantanamo Bay, Cuba.

In wartime, U.S. troops can lawfully kill enemy troops that are engaged in violence against them. But, pursuant to these Supreme Court cases, the United Nations Charter — a treaty that the U.S. wrote — as well the International Covenant on Civil and Political Rights — another treaty that the U.S. wrote — if combatants are not engaged in violence, they may not be harmed, but only arrested.

All this presumes that Congress has in fact declared war on the country or group from which the combatants come. That hasn’t happened since Dec. 8, 1941.

Now, back to Trump ordering the military to kill foreigners in the Caribbean.
International law provides for stopping ships engaged in violence in international waters. It also provides for stopping and searching ships — with probable cause for the search — in U.S. territorial waters.

But no law permits, and the prevailing judicial jurisprudence deriving from the Constitution and federal statutes absolutely prohibits, the summary murders of folks not engaged in violence — on the high seas or anywhere else.

Donald Trump is the pirate of the Caribbean. He has ABSOLUTELY no right under US or international law to blow up Venezuela boats. This state-sponsored piracy, and it must be universally condemned. pic.twitter.com/zByPyfgTkV

— Medea Benjamin (@medeabenjamin) September 21, 2025

The U.S. attorney general has reluctantly revealed the existence of a legal memorandum purporting to justify Trump’s orders and the military’s killings — but she insisted the memorandum is classified. That is a non sequitur.
A legal memorandum can only be based on public laws enacted by Congress and interpreted by the courts. There are no secret laws, and there can be no classified rationale for killing the legally innocent.

If the memorandum purports to permit the president to declare non-violent enemy combatants on a whim and kill them, it is in defiance of 80 years of consistent jurisprudence, and its drafters and executors have engaged in serious criminality.

Where will these extrajudicial killings go next — to Chicago?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit here. 

Published by permission of the author.

COPYRIGHT 2025 ANDREW P. NAPOLITANO

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