The Secret Kill List
Andrew P. Napolitano
by Andrew P. Napolitano: What
If We Have Only Memories of Freedom?
of the government regularly sits down with his senior generals and
spies and advisers and reviews a list of the people they want him
to authorize their agents to kill. They do this every Tuesday morning
when the leader is in town. The leader once condemned any practice
even close to this, but now relishes the killing because he has
convinced himself that it is a sane and sterile way to keep his
country safe and himself in power. The leader, who is running for
re-election, even invited his campaign manager to join the
group that decides whom to kill.
This is not
from a work of fiction, and it is not describing a series of events
in the Kremlin or Beijing or Pyongyang. It is a fair summary of
a 6,000-word investigative report in The New York Times earlier
this week about the White House of Barack Obama. Two Times journalists,
Jo Becker and Scott Shane, painstakingly and chillingly reported
that the former lecturer in constitutional law and liberal senator
who railed against torture and Gitmo now weekly reviews a secret
kill list, personally decides who should be killed and then dispatches
killers all over the world – and some of his killers have killed
We have known
for some time that President Obama is waging a private war. By that
I mean he is using the CIA on his own – and not the military after
congressional authorization – to fire drones at thousands of persons
in foreign lands, usually while they are riding in a car or a truck.
He has done this both with the consent and over the objection of
the governments of the countries in which he has killed. He doesn't
want to talk about this, but he doesn't deny it. How chilling is
it that David Axelrod – the president's campaign manager – has periodically
seen the secret kill list? Might this be to keep the killings politically
Can the president
legally do this? In a word: No.
cannot lawfully order the killing of anyone, except according to
the Constitution and federal law. Under the Constitution, he can
only order killing using the military when the U.S. has been attacked,
or when an attack is so imminent and certain that delay would cost
innocent American lives, or in pursuit of a congressional declaration
of war. Under federal law, he can only order killing using civilians
when a person has been sentenced lawfully to death by a federal
court and the jury verdict and the death sentence have been upheld
on appeal. If he uses the military to kill, federal law requires
public reports of its use to Congress and congressional approval
after 180 days.
The U.S. has
not declared war since World War II. If the president knows that
an attack on our shores is imminent, he'd be hard-pressed to argue
convincingly that a guy in a truck in a desert 10,000 miles from
here – no matter his intentions – poses a threat to the U.S. so
imminent and certain that he needs to be killed on the spot in order
to save the lives of Americans who would surely die during the time
it would take to declare war on the country that harbors him, or
during the time it would take to arrest him. Under no circumstances
may he use civilian agents for non-judicial killing. Surely, CIA
agents can use deadly force to protect themselves, but they may
not use it offensively. Federal laws against murder apply to the
president and to all federal agents and personnel, wherever they
go on the planet.
the United States government has set up national security systems
that function not under the Constitution, not under the Geneva Conventions,
not under the rule of law, not under the rules of war, not under
federal law, but under a new secret system crafted by the Bush administration
and personally directed by Obama, the same Obama who condemned these
rules as senator and then extended them as president. In the name
of fighting demons in pick-up trucks and wars that Congress has
never declared, the government shreds our rights, taps our cellphones,
reads our emails, kills innocents abroad, strip searches 87-year-old
grandmothers in wheelchairs and 3-year-old babies in their mothers'
arms, and offers secrecy when the law requires accountability.
Obama has argued
that his careful consideration of each person he orders killed and
the narrow use of deadly force are an adequate and constitutional
substitute for due process. The Constitution provides for no such
thing. He has also argued that the use of drones to do his killing
is humane since they are "surgical" and only kill their targets.
We know that is incorrect. And he has argued that these killings
are consistent with our values. What is he talking about? The essence
of our values is the rule of law, not the rule of presidents.
with the author's permission.
May 31, 2012
him mail], a former judge of the Superior Court of New Jersey,
is the senior judicial analyst at Fox News Channel. Judge Napolitano
has written six books on the U.S. Constitution. The most recent
Is Dangerous To Be Right When the Government Is Wrong: The Case
for Personal Freedom. To find out more about Judge Napolitano
and to read features by other Creators Syndicate writers and cartoonists,
© 2012 Andrew P. Napolitano
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