Saturday 27th May 2017

Home » Featured Today » Currently Reading:

A Legal Way To Kill?

April 27, 2014 Featured Today No Comments

By ANDREW P. NAPOLITANO

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 past 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.)

Share Button

2017 The Wanderer Printing Co.

Trump Is Pushed and Pulled on Climate Change, A Year After Pledging to Cancel Paris Deal

(CNSNews.com) – Exactly one year after pledging in a speech to “cancel” the Paris climate agreement, President Trump will attend a Group of Seven summit Friday in Sicily where he’s expected to come under sustained pressure from his counterparts to…Continue Reading

St. Louis archbishop resists law requiring Catholics to hire abortion activists: ‘We will not comply’

LOUIS, Missouri, May 24, 2017 (LifeSiteNews) — The Roman Catholic Archdiocese of St. Louis, led by the Most Reverend Robert J. Carlson, has drawn a line in the sand for the protection of innocent human life. In February, the city…Continue Reading

Planned Parenthood Closing Multiple Abortion Clinics in Iowa After State Defunds It

The abortion chain Planned Parenthood announced plans Thursday to close four Iowa clinics as a result of a new state law that defunds it. At the end of June, Planned Parenthood facilities in Burlington, Keokuk and Sioux City, Iowa will…Continue Reading

Graduates walk out on Pence at Notre Dame commencement

SOUTH BEND, Ind. (AP) — Dozens of graduates and family members silently stood and walked out Sunday as Vice President Mike Pence began his address at Notre Dame’s commencement ceremony. Pence, the former governor of Indiana, was invited to speak…Continue Reading

Trump nominates Callista Gingrich for ambassador to the Vatican

President Trump has nominated Callista Gingrich, the wife of former Speaker Newt Gingrich (R-Ga.), as ambassador to the Holy See, the White House announced Friday. The nomination comes just five days before Trump is set to meet with Pope Francis…Continue Reading

The murder case of Blessed Oscar Romero has been reopened

San Salvador, El Salvador, May 19, 2017 / 01:14 pm (CNA/EWTN News).- A nearly 40 year-old murder case was reopened this week to properly prosecute the suspected killer behind the Salvadorian archbishop’s martyrdom. Because of an amnesty law that prohibited…Continue Reading

Notre Dame Protest of Pence Twists Catholic Social Teaching

This Sunday, vice president Mike Pence will return to his home state of Indiana to deliver the commencement address at the University of Notre Dame. For the third time in several years, the school’s graduation ceremony will be plagued by…Continue Reading

Planned Parenthood is Ditching the Failed “Pro-Choice” Label. Here’s Why

The “pro-choice” label has not been working out so well for the abortion chain Planned Parenthood. The labels pro-choice and pro-life have been used for decades to help identify people’s positions on abortion, but young adults seem to be moving…Continue Reading

Bishop Conley: The Pro-Choice Political Dictatorship of Relativism

In 2005, Cardinal Joseph Ratzinger, who would soon be elected Pope Benedict XVI, preached that “we are building a dictatorship of relativism that does not recognize anything as definitive and whose ultimate goal consists solely of one’s own ego and…Continue Reading

These Republicans Voted Against the Bill to Defund the Planned Parenthood Abortion Biz

Republicans in the House of Representatives yesterday voted for a Reconciliation bill that would defund the Planned Parenthood abortion business. This was the second attempt to get enough votes on the reconciliation bill that would not only defund the nation’s…Continue Reading

Cecile Richards Comes Unglued After House Defunds Planned Parenthood: Republicans Hate Women

Planned Parenthood abortion business president Cecile Richards it’s not happy that the House of Representatives voted yesterday to defund Planned Parenthood. The main response of the CEO of the nation’s biggest abortion conglomerate can be summed up in three words:…Continue Reading

Despite pro-life provisions, healthcare bill raises serious concerns

Vatican City, May 4, 2017 / 05:27 pm (CNA/EWTN News).- The House passed a repeal of the Affordable Care Act and a replacement health care bill on Thursday, but one bishop warned that the new bill poses serious problems for…Continue Reading

Untitled 5 Untitled 2

Attention Readers:

  Welcome to our website. Readers who are familiar with The Wanderer know we have been providing Catholic news and orthodox commentary for 150 years in our weekly print edition.


  Our daily version offers only some of what we publish weekly in print. To take advantage of everything The Wanderer publishes, we encourage you to su
bscribe to our flagship weekly print edition, which is mailed every Friday or, if you want to view it in its entirety online, you can subscribe to the E-edition, which is a replica of the print edition.
 
  Our daily edition includes: a selection of material from recent issues of our print edition, news stories updated daily from renowned news sources, access to archives from The Wanderer from the past 10 years, available at a minimum charge (this will be expanded as time goes on). Also: regularly updated features where we go back in time and highlight various columns and news items covered in The Wanderer over the past 150 years. And: a comments section in which your remarks are encouraged, both good and bad, including suggestions.
 
  We encourage you to become a daily visitor to our site. If you appreciate our site, tell your friends. As Catholics we must band together to rediscover our faith and share it with the world if we are to effectively counter a society whose moral culture seems to have no boundaries and a government whose rapidly extending reach threatens to extinguish the rights of people of faith to practice their religion (witness the HHS mandate). Now more than ever, vehicles like The Wanderer are needed for clarification and guidance on the issues of the day.

Catholic, conservative, orthodox, and loyal to the Magisterium have been this journal’s hallmarks for five generations. God willing, our message will continue well into this century and beyond.

Joseph Matt
President, The Wanderer Printing Co.

Untitled 1

Enter Comments Below

This Weeks Comments And Letters . . .

Culture Of Life 101 . . . “An Introduction To The Problem Of Euthanasia”

By BRIAN CLOWES Part 2 (Editor’s Note: Brian Clowes has been director of research and training at Human Life International since 1995. For an electronic copy of chapter 23 of The Facts of Life, a 150-page treatise on all of the aspects of euthanasia, e-mail him at bclowes@hli.org.) + + + We have covered the definitions of the varieties of…Continue Reading

Today . . .

Cardinal Müller on Amoris Laetitia, Paul Ehrlich, Antonio Spadaro and the Three Dismissed Priests

muller

Yesterday, 25 May, the Catholic channel EWTN aired an interview of Raymond Arroyo’s The World Over which was conducted a week ago with Cardinal Gerhard Müller, the Prefect of the Congregation for the Doctrine of the Faith (CDF). In this interview – which was conducted in English – the German cardinal touches upon several important matters which are of interest to the larger Catholic world. When Raymond Arroyo asks Cardinal Müller about the post-synodal exhortation…Continue Reading

‘Comfortable’ Catholics are ‘unwilling’ to see dangers facing Church: Scholar

ROME, May 23, 2017 (LifeSiteNews) — Too many Catholics are caught up in a “comfortable” Catholicism that makes them unwilling, and even unable, to see the “grave problems” currently besetting the Church, said a renowned theologian and one of the world’s top Catholic experts on the Church Fathers. “Most Catholics seem to live their life on a sort of comfortable zone, just the way that a lot of bishops live in a sort of safety-first…Continue Reading

Catholic bishops denounce a Trump budget championed by Mulvaney – a lifelong Catholic

On the day that President Donald Trump met with Pope Francis in Rome, a top administration official defended a proposed budget that America’s Catholic bishops have strongly criticized for hurting the poor. The Trump administration official in the hot seat: budget chief Mick Mulvaney, a lifelong Catholic who grew up in Charlotte. Speaking Wednesday to the House Budget Committee, Mulvaney called Trump’s budget plan a “moral” document that puts “taxpayers first.” And he defended the…Continue Reading

Pope Francis Receives US President Donald J. Trump

Pope Francis received President of the United States of America, Donald Trump, today, May 24, 2017, at about 8:30 a.m. in the Apostolic Palace, before Francis’ weekly General Audience in St. Peter’s Square. The meeting was broadcasted by Vatican Television and can be watched via this link: https://www.youtube.com/watch?v=YVCm1-toVFg According to a statement released by the Holy See Press Office, the discussions, which lasted about 30 minutes, were cordial.

Trump budget completely defunds abortion providers, and Planned Parenthood is furious

May 23, 2017 (LifeSiteNews) — Pro-abortion feminists are bemoaning and pro-lifers are celebrating President Trump’s 2018 budget proposal that would withhold all federal funds from abortion-provider Planned Parenthood. Breitbart reported yesterday that Office of Management and Budget (OMB) Director Mick Mulvaney told the media on Monday that the new budget would defund the abortion business, but only if the new Republican healthcare legislation passed recently by the House is also passed by the Senate and…Continue Reading

The Blessed Virgin And St. Joseph… A Marriage Truly Made In Heaven

By JAMES MONTI For several centuries there was on the liturgical calendars of several religious orders a feast day that few know of today — Desponsatio beatae Mariae Virginis — the Espousal of the Blessed Virgin Mary, a celebration of the marriage of Our Lady to St. Joseph. Although the Sacred Scriptures recount scarcely more…Continue Reading

A New Birth Control Commission?

By JOHN F. KIPPLEY (Editor’s Note: At this point, reports about a possible new birth control commission are unconfirmed. This commentary first appeared on http://nfpandmore.org/wordpress/.) + + + The week of May 13th started wonderfully with widespread efforts to honor the Blessed Virgin Mary as Our Lady of Fatima. The work week was quickly dimmed,…Continue Reading

Wanda Poltawska… The Stubborn Insistence On Being Human

By DONALD DeMARCO The city was Toledo, Ohio. The year was 1990. The venue was the dining room in a private home. The audience consisted of several pro-life people, including myself. The speaker was Wanda Poltawska who was relating a series of events in her life that we were most privileged to hear. In 1962,…Continue Reading

A Movie Review… “Outcasts” And True Social Justice

By REY FLORES “A bold example of social justice in action” — Follow the cameras of Grassroots Films, the Award-Winning producers of The Human Experience and Child 31, on an unexpected journey across the globe. Travel to the prisons of Central America, walk the dark city streets of London, New York, and Ireland’s most treacherous…Continue Reading

Kentucky Printer Can Refuse LGBT Message

LEXINGTON, Ky. — A Kentucky Court of Appeals ruling on May 14 affirmed a printer who objected to promoting a message for Lexington’s Gay and Lesbian Services Organization (GLSO) which conflicted with his sincerely held religious beliefs. Hands On Originals’ managing owner, Blaine Adamson, represented by Alliance Defending Freedom, refused to print T-shirts for the…Continue Reading

Advertisement

Our Catholic Faith (Section B of print edition)

Penance As A Laborious Kind Of Baptism

By DON FIER Sin, its dire consequences, and man’s continual need for conversion are realities that are often dismissed or even outrightly denied in modern secularized societies enamored, as they are, with materialistic pursuits. As noted last week, recent Roman Pontiffs, beginning with Pope Pius XII in 1946, cite as an underlying reason for this troubling phenomenon a “loss of…Continue Reading

Catholic Replies

Editor’s Note: In his parish bulletin recently, Fr. George Rutler of the Church of St. Michael in New York City recalled the famous words of the great jazz singer Al Jolson: “You ain’t heard nothing yet” and compared them with the words of Jesus: “I have yet many things to say to you, but you cannot bear them now” (John…Continue Reading

Discover God’s Gifts And His Will

By FR. ROBERT ALTIER Pentecost Sunday (YR A) Readings: Acts 2:1-11 1 Cor. 12:3b-7, 12-13 John 20:19-23 In the first reading today we hear about the Holy Spirit descending upon the apostles as they were gathered in prayer. The event was marked by some extraordinary phenomena: the noise like a driving wind filling the house and the tongues of fire.…Continue Reading

The Canonization Mass For Jacinta And Francisco . . . Pope Francis Says: “Dear Pilgrims, We Have A Mother”

(Editor’s Note: Pope Francis on May 13 canonized Jacinta and Francesco Marto, as the highlight of his May 12-13 Apostolic Pilgrimage to Fatima. Below is the Vatican translation of the Pope’s homily during the Mass, as provided by ZENIT News Agency. (It is followed by the text of Pietro Cardinal Parolin’s homily at the vigil. Earlier at the vigil, the…Continue Reading

A Leaven In The World… 25th Ordination Jubilee Solemn High Mass And Celebration

By FR. KEVIN M. CUSICK (Editor’s Note: The staff of The Wanderer congratulates Fr. Cusick on his upcoming 25th anniversary of Ordination.) + + + Thank you for reading my column so faithfully over the years and for all that you have done to support the apostolate of The Wanderer. As we mark the 25th anniversary of my June 6,…Continue Reading

Catholic Heroes… St. Peter Sanz And Companions

By CAROLE BRESLIN In 1748, the Viceroy of Peking with great frustration asked, “What are we to do with these men? Their lives are certainly irreproachable. . . . Their jailers and their families become their disciples and embrace their religion. To prolong this state is only to give them the opportunity of increasing the number of Christians.” Thus Peter…Continue Reading

Catholic Heroes… Pope St. Celestine V

By CAROLE BRESLIN After the death of Pope St. John Paul II, faithful Catholics rejoiced at the election of Joseph Cardinal Ratzinger as the next Vicar of Christ. The German prelate took the name of Benedict XVI for two reasons: in memory of Pope Benedict XV who led the Church during the turbulent times of World War I, seeking peace…Continue Reading