After a hitch in the administration’s speedboat-killing operations, there are now living plaintiffs with standing to challenge the president’s authority, writes Andrew P. Napolitano.
U.S. Marines with the special-operations capable 22nd Marine Expeditionary Unit conduct live fire drills aboard USS Iwo Jima in the Caribbean Sea on Sept. 17 in support of the U.S. Southern Command mission, Department of War-directed operations and the president’s priorities. (U.S. Marine Corps/Tanner Bernat/Wikimedia Commons/Public Domain)
President Donald Trump’s use of the U.S. military to kill persons on speed boats in international waters, or in territorial waters claimed by other sovereign nations — all 1,500 miles from the U.S. — has posed grave issues of due process.
The U.S. Constitution’s guarantee of due process requires it for every person, not just Americans. The operative language of the Fifth Amendment is that “No person … shall be deprived of life, liberty, or property without due process of law.”
The Trump administration has claimed that it can kill whomever it designates as an unlawful enemy combatant — it prefers the political phrase “narco-terrorist” — and the due process it provides is the intelligence gathered by American spies and the White House analysis of that intelligence.
This secret analysis, the government’s argument goes, satisfies the president that the folks he has ordered killed are engaging in serious and harmful criminal behavior, and somehow is a lawful and constitutional substitute for the jury trial and its attendant procedural protections that the Constitution commands.
To be fair, I am offering an educated guess as to the administration’s argument. The reason we don’t know the argument precisely is that the Department of Justice calls it classified. This is, of course, a non sequitur. How could a legal argument possibly be secret in light of well-settled First Amendment jurisprudence? It can’t.
The Supreme Court has ruled consistently that there are no secret laws or secret rationales for employing the laws. Moreover, it has ruled that the First Amendment assures a public window on government behavior whenever it seeks to take life, liberty or property.
Obama’s Secrecy Precedent
Anwar al-Awlaki, 2008. (Muhammad ud-Deen/Wikimedia Commons/CC BY-SA 3.0)
The last time we went through efforts to obtain the government’s legal argument for presidential targeted killing was during the Obama administration. When President Barack Obama ordered the C.I.A. to kill Anwar al-Awlaki and his son — both natural born American citizens — it, too, claimed a secret legal rationale.
Yet some brave soul who had access to that rationale leaked it to the press. The rationale likened killing al-Awlaki and his 16-year-old son to police shooting at fleeing bank robbers who are shooting at the police.
The Obama justification was absurd, as al-Awlaki was not engaged in any violent acts. He had been followed by 12 intelligence agents during his final 48 hours of life. Those agents couldn’t legally arrest him, because he hadn’t been charged with a crime, but in the Obama logic, they could legally kill him.
When those of us who monitor the government’s infidelity to the Constitution publicly pointed out the flaws in the Obama argument, it reverted to the argument that I suspect the current administration is secretly using. Namely, that its secret internal deliberations are a constitutionally adequate substitution for traditional due process.
It gets worse.
Before al-Awlaki and his son were murdered, al-Awlaki’s father unsuccessfully brought an action in the U.S. District Court in Washington, D.C., against President Obama, in which he argued that the president was planning to kill his son, and he sought an injunction against that.
The DOJ argued that there were no such plans in the works and — even if there were — the father lacked standing to seek the injunction since, by his own admission, the president’s plans were aimed at his son, not him. The Constitution requires standing — only those truly and directly and uniquely harmed by a defendant may invoke the protection of a federal court.
During the oral argument on the government’s successful motion to dismiss the elder al-Awlaki’s case, the court opined that the son — the one who was murdered mere weeks after this case was dismissed — would have had standing to sue. The son and the grandson were literally evaporated by a C.I.A. drone while peacefully sitting at an outdoor cafe in Yemen.
Trump’s Premise Based on No Survivors
Trump at the White House last week. (White House /Juliana Luz)
Now back to the Trump administration and its murdering persons on the high seas. The stated public reason for doing so — this is a political reason, not a valid legal one — is that it is better to kill these folks before the drugs they are carrying reach their willing American buyers.
But these killings are premised on success, so that there are no survivors to bring a cause of action against the president and the government. Last week, the Department of Defense announced to its dismay that in one of the seven attacks on speedboats in the Caribbean, it failed to kill all the passengers, and two survivors were “rescued” and arrested by the U.S. Navy.
Surely the administration did not expect this legal quagmire. An arrest can only be based on probable cause of crime. What probable cause did the Navy have to arrest the survivors after it had destroyed their boat and any evidence in the boat? Of course, the government won’t say.
What legal rationale did the administration employ when deciding what to do with the survivors? Again, the government won’t say. If they were the narco-terrorist monsters — again, a political phrase, not a legal one — that President Trump has claimed them to be, why did the Navy set them free?
This is not a matter of trusting President Trump or not, or of approving of his goals or not. It is a matter of complying with due process procedures as old as the republic.
The sine qua non of due process is a fair, transparent and indifferent evaluation of evidence by a neutral judicial officer before guilt can be established and punishment administered — all pursuant to statutes duly enacted.
Channeling Justice Felix Frankfurter, the history of human freedom is paying careful attention to the procedures the government employs.
Now the administration has on its hands that which it most feared — living plaintiffs with standing to challenge the president’s authority in a federal court. They have claims for attempted murder and kidnapping. Those of us who believe that the Constitution means what it says welcome this challenge.
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 2024 ANDREW P. NAPOLITANO
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The views expressed are solely those of the author and may or may not reflect those of Consortium News.
The conditioning of the human mind is not as difficult as many seem to think.
Most everyone here has this figured out. Thanks to most humans being, well human! The most obvious thing is those those writing here have a firm grasp on reality.
Extrajudicial killing, murder by any other name, for any reason takes us to the very edge of anarchy – definition of anarchy – a state of disorder, due to the absence or nonrecognition authority or other controlling systems.
I will not debate the pros or cons of AI here because I have to agree 100% with the above statement. You see we here understand the difference between what is right and what is wrong.
Clinton, the NEOCONs and the Zionist of the world refuse to play well with others because of their insane beliefs and Barrack got led down the road to perdition.
This must stop and the reason, very obviously is because the behavior of the corrupt, blood thirsty anarchist is totally insane.
I was very shocked to hear Obama signed off on this murder. The killing of the son and grandson, fucking unforgivable. Darkest day of Obama’s terms as far as I’m concerned.
It make no difference how this event is presented or framed, it was wrong. Full STOP PERIOD.
Think about this. The U.S. government(?) went from making half-assed efforts to keep murdering foreign national to achieve U.S. goals secret to engaging openly in supporting the extrajudicial murder of civilians in public on September 30, 2011.
Same as what had been happening. since 911 in Afghanistan and Iraq. Nothing about this was that much different.
The shock I got was from a presidential decision I feel Obama made under duress. The direct result, of both the wars in Afghanistan and Iraq and this later extra judicial murder of Anwar al-Awlaki, I believe is the monstrous mistake made the U.S. State Department in assisting Israel during the ongoing genocide in Gaza.
We have lots of work to do to right the ship of state and the number one goal must be getting the great orange lying mouth of the Village idiot from NY City out what ever is left of the White House.
The U.S. has become a Mafia with a flag. This must not stand!
Yes .. or imagine if some brown skinned Palestinian group carefully bombed all the cities of the occupation… after starving them for months and poisoning any water sources and then marching them off… military and civilians… in their underwear to filthy prisons full of rats and roaches …then systematically raping all their doctors and healthcare workers and shooting them and burying them alive… then babies would be assembled and shredded in mass bombing campaigns that would continue for two years non-stop… leaving no schools, hospitals or cultural monuments standing….
The US , UK and the EU nations would be out in force in two weeks…(not wait two years…) to stop this bureaucracy of settler colonialism…if Palestinians were white skinned …?
This is the toxicity of racist. white supremacy that reigns in this ignorant settler colonial backwater…
Out of touch with the world and out of touch with each other…
Observed from the totally corrupt, quisling, US vassal state of Norway, and based on the track record of previous US governments [going back as far as 1776] the ”land of the free, home of the brave” has rightfully come to be viewed by the international community as the planets largest rogue state—followed on a close second place—by an equally exceptionalist society (based largely on the same principles and policies), the utterly deranged, absurdly British cooked-up, supremacist apartheid entity of ”israel”!
The world has moved to the “wild west” with bigger guns. Insanity.
Way past time for erudite Andrew Napolitano to rethink his notions about the purity of the U.S. Constitution!
How so? This has nothing to do with the “purity” of the Constitution. Either the laws of the land apply and are enforced or they don’t apply and the President can do whatever he wants, including ordering murders, like a gangster.
I concur with the legal argument being made by the author. I did however find a bit of erroneous information in the article.
Anwar was murdered by drone along with Samir Khan. Two weeks later Anwars 16 year old son was killed in a separate drone strike while having dinner with his cousins at an outdoor cafe in Yemen. Obama was reportedly outraged about the drone strike killing Anwars 16 year old son and his cousins. That strike may have occurred without his approval. Since it’s classified we may never know. That being said Obama is a stone cold mass murderer, and war criminal, as is Trump.
So what’s your point then? Obama ordered the murders of several people, on days known ironically as “Terror Tuesdays.” So maybe he didn’t order the murder of Al-Awaki’s son? As you said, we’ll likely never know. One of the things a modern President must have is an utterly morally bankrupt worldview. Trump, in his brazen ignorance and paranoia and stupidity, doesn’t bother to hide this. Obama did.
There was no court proceedings and there will be none regarding the case revealed by Judge Napolitano .A court case would have proved or not whether the craft in question carried illegal drugs .The public needs to know that a government action is not criminal in unto itself .
Huh? The President ordered the murders of over 2 dozen people. That’s a crime. Very straightforward stuff.
And who is the USA copying?
Mossad have done this for decades. There are a group of people in our world who believe they are God’s chosen few. The rest, the goys are no more than animals. They say it out loud.
Exactly so.
“The Constitution requires standing — only those truly and directly and uniquely harmed by a defendant may invoke the protection of a federal court.”
As a citizen I guess having an ownership stake in the Constitution isn’t standing enough to challenge its abuse by the government. Very convenient for the abusers.
Nixon and Kissinger carpet-bombed SE Asia, did not inform Congress. High crimes were committed yet no one held to account. “When the President does it, that means it’s not illegal”. The Bush Jr. and Tony Blair regimes destroyed entire countries based on transparent and willful lies, no one held to account. Blair/Bush continue to enrich themselves, who says high crimes don’t pay?
The perps of the largest financial crimes in US history were not only let off the hook, they were REWARDED with public funds. We can go on for some time, but the “law” and “justice” are only tools for the oligarchy to smash the “little people”. The tyranny of oligarchy should be plain for all to see. The so-called government is bought and paid for by oligarchy, that should be crystal clear by now.
And as the good Judge points out, Obama murdered US citizens without due process. The Bill of Rights? Yeah right. And now the Idiot Emperor and the Kakistocrat Krew are getting away with high crimes here at home, and abroad. It is becoming more and more obvious, yet the Sycophant-Stenographer “media” largely ignore it, and many miseducated, misinformed, US dwellers are oblivious.
The recent “no kings” farce was just a cynical PR stunt for the DNC and D party. Meanwhile, the US/UK/EU genocide of Palestine continues.
Does Judge Napolitano know that there are lists at the White House for “executive action” (assasinations) made
permanent under Obama and that many Presidents have killed (especially abroad) for many years. In the intelligence communiity
it is called “targeting”(meaning assassination) and is now a career (see many sources).
Nothing gives Washington the international power and authority to do anything like this. Contemporary Manifest Destiny is a blatant violation of the norms of a humane global community.
Imagine if China or Russia asserted to the world that it would target alleged criminals with lethal force sans any kind of due process.
All of this extrajudicial murder is essentially smaller elements of the Wolfowitz Doctrine.