What If They Are Hiding the Truth?

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

What if President Obama secretly agreed with others in the government in 2011 to provide arms to rebels in Libya and Syria? What if the scheme called for American arms merchants to sell serious American military hardware to the government of Qatar, which would and did transfer it to rebel groups? What if the U.S. Department of State and the U.S. Department of the Treasury approved those sales?

What if the approvals were kept secret because some of those rebel groups were characterized by the same Departments of State and Treasury as terrorist organizations? What if the ultimate recipients of those arms were the militants and monsters in al-Qaida and ISIS who have slain and tortured innocents?

What if this scheme is defined in federal law as providing material assistance to terrorist organizations? What if that’s a felony? What if that’s the same felony for which the U.S Department of Justice has prosecuted dozens of persons merely for attempting? What if this scheme was not a mere attempt, but an actual arming of terrorists?

What if this scheme was approved not only by the president, but also by Secretary of State Hillary Clinton? What if the idea of doing this was hers? What if congressional leaders in both houses of Congress and from both parties signed off on this? What if the remaining members of Congress and the American people were kept in the dark about this scheme? What if those who agreed to permit this scheme knew that the arms were destined for terrorist organizations and they were flirting with a criminal conspiracy to violate federal law?

What if Clinton was asked by senators while under oath about the delivery of arms made by American manufacturers to ports in the Middle East and she denied knowing anything about it? What if she knew she had personally approved the deliveries but falsely claimed she had no knowledge?

What if this arms-to-terrorists scheme began to unravel? What if the rebels were really bad guys? What if there are many rebel/terrorist groups with varying degrees of hatred for the United States? What if some of the groups that received American arms are so hateful of the U.S. that they will bite the hands that fed them?

What if Clinton’s job was to prevent American arms from slipping into the hands of terrorists? What if she secretly did the opposite of what her job required? What if she and the president and the other conspirators viewed themselves as being above the law? What if they thought the terrorist groups they were arming would overthrow the Gadhafi government in Libya and the Assad government in Syria? What if they believed those revolutions would be greeted with cheers in the West? What if they hoped the cheers would be for them?

What if their goal of regime change succeeded in Libya, and yet the result was chaos? What if under Col. Gadhafi Libya had been a stable U.S. ally? What if today there is no central government in Libya and it is ruled by gangs and tribes and militias?

What if the American assistance to Syrian rebels became known to the Russians? What if that knowledge prompted Russian President Putin to help his ally, President Assad of Syria? What if the American and Russian introduction of heavy military hardware into the Syrian civil war has resulted in prolonged war and more deaths of innocents and destruction of property, not less?

What if one of the terrorist groups that received American arms from this scheme attacked the American consulate in Benghazi, Libya, because it wanted more arms from the U.S. and it knew arms were stored there? What if that attack killed U.S. Ambassador to Libya Chris Stevens and three of his colleagues? What if this was a nightmare scenario for the conspirators? What if the conspirators now fear that the truth of their plot will become known?

What if the tragedy at Benghazi was unwelcome but not unforeseen? What if the conspirators knew of the risks to innocent lives attendant upon breaking the law by giving arms to madmen? What if members of Congress who were kept in the dark about the arms-to-terrorists scheme were outraged over Benghazi? What if leaders of the House of Representatives, some of whom were conspirators, formed a committee to investigate how the murder of Stevens came about?

What if some members of that committee already know that Stevens and the others were murdered with U.S. weapons illegally given to U.S. enemies secretly by U.S. government officials? What if the stated purpose of the committee -- to seek the truth about Benghazi -- is not the true purpose? What if the real purpose of that committee is to suppress the truth so that the president and Clinton and the other conspirators do not get indicted? What if the truth is the last thing the conspirators want to see come out?

What do we do about lawless government by secrecy? What do we do about government officials who act as if they are above the law? What do we do if one of them lives in the White House and controls all federal prosecutions? What do we do if another of them is presently on her way there?

*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 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.