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.
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?
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(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.)