Judge Andrew P. Napolitano*
Can the president kill you? The short answer is: Yes, but not legally. Yet, President Obama has established a secret process that involves officials from the Departments of Justice and Defense, the CIA, and the White House senior staff whereby candidates are proposed for execution, and the collective wisdom of the officials then recommends execution to the president, who then accepts or rejects the recommendation.
If the recommendation is to kill and the president rejects the recommendation, the CIA is directed to arrest the person. If the president accepts the recommendation to kill, then death is ordered. This is not unlike the procedure used in the reign of the monstrous British King Henry VIII, except that the king himself delegated the final say to his chancellor so that he could publicly disavow participation in the government murders.
Obama does not disavow them; he defends them. But the Constitution he swore to uphold makes clear that whenever the government wants the life, liberty or property of anyone, it must follow due process. Stated differently, it must either sue the person for his property or prosecute him for his life or liberty, and the law that forms the basis for the lawsuit or the prosecution must have existed before the person did whatever the government says he did that resulted in its pursuit of him. The whole reason for the requirement of due process was to prevent what Henry VIII did and Obama is doing from ever happening here.
It is happening here.
In 2011, Obama ordered the CIA to murder Anwar al-Awlaki, an American born in New Mexico. When the CIA’s drones murdered Awlaki, he was within eyesight in Yemen of about 12 Yemeni intelligence agents and four CIA agents, all of whom collectively could have arrested him. He was not engaged in any unlawful behavior. He was unarmed and sitting at an outdoor cafe with a friend and his teenage son and the son’s friend. All four -- Americans all -- were murdered by the drones dispatched from Virginia.
When word of this got out, the president came under heavy criticism. He responded by claiming he had the lawful authority to kill any dangerous person whose arrest was impractical. He also claimed he had a legal opinion from Attorney General Eric Holder that justified the killings. He then dispatched Holder to explain the lawful basis for the killings at a speech at Northwestern Law School. The speech produced even more criticism and, eventually, the revelation of a portion of the legal opinion.
The legal opinion is hogwash. It relies on cases of hot pursuit in which police may lawfully use deadly force to stop an armed and dangerous person who is an imminent danger of causing deadly harm to someone else -- an armed robber fleeing a bank he has just robbed and shooting at his pursuers may of course be shot at lawfully by the police. In the Awlaki case, the government had not even alleged that he committed a crime. Without that allegation, those 16 intelligence agents who were following him for the final 48 hours of his life could not have lawfully arrested him. The government concedes this; so it decided to kill him.
All this resurfaced last week in a Brooklyn federal courtroom where another American, Mohanad Mahmoud al-Farekh, born in Texas, was charged with providing material assistance to a terrorist organization while he was in Pakistan. It was revealed that the Department of Defense nominated Farekh for execution, the CIA seconded the nomination (you cannot make this stuff up), and the president vetoed it because he did not want to offend the Pakistanis, over whose land he has dispatched more than 3,000 drones, a practice he promised to stop.
The president did not decline to order the murder of Farekh because it was morally wrong or unconstitutional or a violation of federal law, but because he feared it would upset officials in a foreign government. We also learned last week that the House and Senate committees on intelligence -- the members of which receive classified briefings that they cannot share with their constituents or colleagues -- demanded Farekh’s execution, but the president refused.
What a sad, sorry, unconstitutional state of affairs this Obama presidency and its enablers in Congress have brought us. Like Awlaki, Farekh was not engaged in an act of violence when intelligence agents pursued him. Why did one of these pursuits result in due process and the other in murder? Because of the political calculations of the president. That is not the rule of law. That is a gross violation of basic American values.
While all this has been going on, the president has negotiated a deal with Iran that has many in Congress up in arms. They think he gave away the store, and they are in the process of enacting legislation over his likely veto that would prohibit him from entering into agreements on nuclear weapons without their consent. Have you heard any of these self-proclaimed congressional patriots offer legislation to prohibit the president from murdering Americans? Who will be nominated for execution next?
When the president acts like a king and Congress looks the other way, it is as culpable as he is.
*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.