The Tyranny of One Man's Opinion

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

Thomas Cromwell was the principal behind-the-scenes fixer for much of the reign of King Henry VIII. He engineered the interrogations, convictions and executions of many whom Henry needed out of the way, including his two predecessors as fixer and even the king's second wife, Queen Anne.

When Cromwell's son, Gregory, who became sickened as he watched his father devolving from counselor to monster, learned that an executioner for the queen had been sent for from France a week before her conviction, he asked his father what the purpose of her trial was if the king had preordained the queen's guilt and prepaid the executioner. Cromwell replied that the king needed a jury to give legitimacy to her conviction and prevent the public perception of "the tyranny of one man's opinion."

In America, we have a Constitution not only to prevent the perception but also to prevent the reality of the tyranny of one man's opinion. The Constitution’s Fifth Amendment makes clear that if the government wants life, liberty or property, it cannot take it by legislation or executive command; it can do so only by due process -- a fair jury trial and all its constitutional protections.

The constitutional insistence upon due process was the result of not only the Colonial revulsion at the behavior of Henry and his successors but also the recognition of the natural individual right to fairness from the government. If one man in the government becomes prosecutor, judge and jury, there can be no fairness, no matter who that man is or what his intentions may be. That is at least the theory underlying the requirements for due process.

President Barack Obama has rejected not only the theory but also the practice of due process by his use of drones launched by the CIA to kill Americans and others overseas. The use of the CIA to do the killing is particularly troubling and has aroused the criticism of senators as disparate in their views as Rand Paul and John McCain, both of whom have argued that the CIA's job is to steal and keep secrets and the military's job is to further national security by using force; and their roles should not be confused or conflated, because the laws governing each are different.

Theirs is not an academic argument. The president's use of the CIA is essentially unlimited as long as he receives the secret consent of a majority of the members of the House and Senate intelligence committees. The secret use of these 37 senators and representatives constituting the two committees as a Congress-within-the Congress is profoundly unconstitutional because Congress cannot delegate its war-making powers to any committee or group without effectively disenfranchising the voters whose congressional representatives are not in the group.

Moreover, the War Powers Resolution regulates the president's use of the military and essentially precludes secret wars. It requires the public consent of a majority of the full Congress for all offensive military action greater than 90 days. That, in turn, brings about transparency and requires a national political will to use military force.

President Obama has formulated rules -- agreed to by a majority of the 37, but not by a majority in Congress -- that permit him to kill Americans and others overseas when he believes they are engaging in acts that pose an imminent threat to our national security, when their arrest would be impracticable and when personally authorized by the president. This is not federal law, just rules Obama wrote for himself. Yet none of the Americans he has killed fits any of those rules.

Last week, the White House revealed that in January, the government launched its 446th drone into a foreign land, and this one killed three Americans and an Italian, none of whom had been targeted or posed a threat to national security at the time of his murder. The drone, which was dispatched by a computer in Virginia, was aimed at a house in Pakistan and was sent on its lethal way without the approval of the Pakistani government or the knowledge of President Obama.

The use of drones is not only constitutionally impermissible but also contraindicated by the rules of war. Drones pose no threat and little danger to those doing the killing. Except when the intelligence is bad -- as it was in the January case revealed last week -- deploying drones is a low-risk endeavor for the country doing so. But Obama's wars by robots produce more killing than is necessary. War should be dangerous for all sides so as to limit its lethality to only those venues that are worth the risk -- those that are vital for national security.

If war is not dangerous, it will become commonplace. By one measure -- the absence of personal involvement by decision-makers -- it has become commonplace already. A mere three years after his self-written rules for the deployment of drones were promulgated, the president has delegated the authority to order drone killings to his staff, and the members of the congressional intelligence committees have delegated their authority to consent to their staffs.

Obama apparently doesn't care about the Constitution he swore to uphold, but he should care about the deaths of innocents. Obama's drones have killed more non-targeted innocents in foreign lands than were targeted and killed in the U.S. on 9/11.

And the world is vastly less stable now than it was on 9/11. The president's flying robots of death have spawned the Islamic State group -- a monstrosity far exceeding even Henry VIII and Thomas Cromwell in barbarity.

*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.

A Legal Way To Kill?

Judge Andrew P. Napolitano*

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When President Obama decided sometime during his first term that he wanted to be able to use unmanned aerial drones in foreign lands to kill people -- including Americans -- he instructed Attorney General Eric Holder to find a way to make it legal, despite the absolute prohibition on governmental extra-judicial killing in federal and state laws and in the Constitution itself.

“Judicial killing” connotes a lawful execution after an indictment, a jury trial, an appeal and all of the due process protections that the Constitution guarantees defendants. “Extra-judicial killing” is a targeted killing of a victim by someone in the executive branch without due process. The president wanted the latter, and he wanted it in secret.

He must have hoped his killing would never come to light, because the Fifth Amendment to the Constitution could not be more direct: “No person shall be … deprived of life, liberty or property without due process of law.”

Due process has a few prongs. The first is substantive, meaning the outcome must be fair. In a capital murder case, for example, the defendant must not only be found guilty by a jury, but he also must truly be guilty.

The second prong of due process is procedural. Thus, the defendant must be charged with a crime and tried before a neutral jury. He is entitled to a lawyer, to confront the witnesses against him and to remain silent. The trial must be presided over by a neutral judge, and in the case of a conviction, the defendant is entitled to an appeal before a panel of three neutral judges.

The third prong of due process means that the defendant is entitled to the procedures “of law,” that is, in the federal system, as Congress has enacted.

There are numerous additional aspects of due process, the basics of which emanate from the Constitution itself. Yet, the “of law” modifier of the constitutional phrase “due process” gives Congress, not the president, the ability to add to the due process tools available to a defendant. Congress may subtract what it has added, but neither Congress nor the president may remove any of the tools available to the defendant under the Constitution.

Until now.

Now, we have a president whose principal law enforcement and intelligence officers have boasted that the president relies on a legal way to kill people without the time, trouble and cost of due process. The president himself, as well as the attorney general, boasted of this, as did the director of national intelligence and the director of the CIA. Yet, when asked by reporters for The New York Times for this legal rationale, Holder declined to provide it. He argued that the legal rationale for the presidential use of extra-judicial killings was a state secret, and he dispatched Department of Justice (DoJ) lawyers to court, where they succeeded in persuading a federal judge in New York City to deny the Times’ application to order the government’s legal rationale revealed.

How can a legal rationale possibly be a state secret? The facts upon which it is based could be secret, but the laws are public, the judicial opinions interpreting those laws are public, and there are no secret non-public parts of the Constitution. Yet notwithstanding the above observations, the Times lost.

The judge who dismissed the case obviously was uncomfortable doing so. She wrote: “The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself struck by a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules -- a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reason for their conclusion a secret.”

Two weeks after Judge Colleen McMahon begrudgingly dismissed that case, the feds decided to gloat, and so they leaked a 16-page summary of their "secrets" to a reporter at NBC News. To the federal appeals court to which the Times appealed, that was the last straw. It is one thing, the appellate court ruled, for the president and his team to boast that they know how to kill legally by finding a secret “adequate substitute” for due process and keeping the secret a secret, but it's quite another for them to reveal a summary of their secrets to their favorite reporters.

Thus, earlier this week, a three-judge panel of the U.S. Court of Appeals for the Second Circuit unanimously ordered the DoJ to reveal publicly its heretofore secret rationale for extra-judicial killing.

Welcome to the strange new world of Barack Obama’s war on terror, in which there are no declarations of war against countries that foment or harbor enemy activities, as the Constitution authorizes, and in which the president claims the powers of a king by killing whomever he wishes under a rationale that his lawyers wrote for him and that he has desperately tried to keep secret.

The Obama administration is probably right to fear the revelation of this so-called legal way to kill. The appellate court decision is a profound and sweeping rejection of the Obama administration’s passion for hiding behind a veil of secrecy. But it is not a decision on the merits: It does not address whether the president may kill, and it only lifts a small corner of his veil.

We already know that behind Obama’s veil lies a disingenuous president who claims he can secretly kill fellow Americans. Who knows what else we will find?

*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.”

Obama Plans to Execute Another US Citizen via Drone Strike

Isaiah Hunter*

President Obama plans to execute via a drone strike another US citizen, but this time under his revised signature killing procedures. These procedures evidently are more stringent than the original targeted killing procedures. This has angered some Republicans, who argue greater procedures will slow down the killing of alleged enemies. While this is a complicated topic, I think the Obama Administration is correct in increasing the required procedures prior to killing US citizens. In fact, the Obama Administration probably did not go far enough.

Generally, under the 5th Amendment the executive cannot execute persons (let alone citizens) absent the due process of law. Therefore, it would seem obvious that the president cannot write and execute a kill list. Yet one obvious exception to the 5th Amendment is Jus in Bello – the law of war.  During war, it would be impossible for the president to provide due process in any meaningful way to enemy soldiers. This exception must be narrowly construed and diligently enforced, less the exception swallows up the general rule.

The global war on terror is a grey place where the rule and exception come very close to meeting. Once again, no one would deny that the US President could during war order an attack that kills enemy combatants. Moreover, if that attack killed US citizens who defected to the enemy, I do not think there would be 5th Amendment arguments that would prohibit the attack. The difficulty in the war on terror is that it is very unclear whether someone has actually defected to the enemy. It isn’t always clear who the enemy is. Moreover, the war has neither defined borders nor a start/end date. It is very much not a war in the traditional sense. This should make everyone weary of giving any executive substantial latitude – the power will exist for a long time.

As such, it makes the targeted killing question very difficult to answer: does it fall under the war exception or the general 5th Amendment rule? Attorney Holder seemingly offered an in-between. He argued that a non-judicial process that was vetted by the executive was sufficient. This strikes me as the fox guarding the hen house. Yet recent alternatives do not seem particularly appealing. The FISA court was either a rubber stamp or was simply lied to by the NSA. Congress often delegates on matters of national security. How do you solve this issue?

Perhaps an improved FISA court? One of the large problems with the FISA court was its ex parte nature. Ideally, we could construct a targeted killing court where standing rules could be relaxed permitting non-governmental organizations, such as the ACLU, to argue cases on behalf of the alleged enemy. This court could not be an Article III Court. The second problem with the FISA court was the secrecy behind the court. Because its opinions weren’t made public, the legal conclusions were not scrutinized. Now, given the nature of targeted killings there would need to be some secrecy. But there could be a standard that all opinions must be published within 9 months. This would open the killings court to criticism, which could help avert some of the problems that plagued the FISA court and would make clear whether the court is functioning properly.

In the end, Obama was right to want more procedure. However, he probably needs to include more non-executive procedure and non-government stakeholders in the process. 

*Isaiah Hunter is a J.D. Candidate at New York University School of Law, class of 2014, and is Senior Articles Editor of the Journal of Law & Liberty.