Can the pres­i­dent kill you?

Elim­i­na­tion of al-awlaki was more Stali­nesque than Jef­fer­so­nian

The Washington Times Daily - - Opinion - By An­drew P. Napoli­tano

Can the pres­i­dent kill an Amer­i­can sim­ply be­cause that per­son is dan­ger­ous and his ar­rest would be im­prac­ti­cal? Can the pres­i­dent be judge, jury and ex­e­cu­tioner of an Amer­i­can in a for­eign coun­try be­cause he thinks that would keep Amer­ica safe? Can Congress au­tho­rize the pres­i­dent to do that?

Ear­lier this week, At­tor­ney Gen­eral Eric H. Holder Jr. at­tempted to jus­tify pres­i­den­tial killing in a speech at North­west­ern Univer­sity law school. In it, he rec­og­nized the re­quire­ment of the Fifth Amend­ment for due process. He ar­gued that the pres­i­dent may sub­sti­tute the tra­di­tion­ally un­der­stood due process — a public jury trial — with the pres­i­dent’s own novel ver­sion of it; that would be a se­cret de­lib­er­a­tion about killing. With­out men­tion­ing the name of the Amer­i­can the pres­i­dent re­cently or­dered killed, Mr. Holder sug­gested that the pres­i­dent’s care­ful con­sid­er­a­tion of the case of New Mex­ico-born An­war alAwlaki con­sti­tuted a form of due process.

Mr. Holder ar­gued that the act of re­view­ing al-awlaki’s al­leged crimes, what he was do­ing in Ye­men and the im­mi­nent dan­ger he posed pro­vided alAwlaki with a sub­sti­tuted form of due process. He did not men­tion how this sub­sti­tu­tion ap­plied to al-awlaki’s 16year-old son and a fam­ily friend, who also were ex­e­cuted by CIA drones. He also did not ad­dress the ab­sence of any sup­port in the Con­sti­tu­tion or Supreme Court case law for his novel the­ory.

The Fifth Amend­ment to the Con­sti­tu­tion states that the gov­ern­ment may not take the life, lib­erty or prop­erty of any per­son with­out due process. The com­po­nents of due process are too nu­mer­ous to ad­dress here, but the essence of due process is “sub­stan­tive fair­ness” and a “set­tled fair pro­ce­dure.” Un­der due process, when the gov­ern­ment wants your life, lib­erty or prop­erty, it must show that it is en­ti­tled to what it seeks by ar­tic­u­lat­ing the law it says you have vi­o­lated and then prov­ing its case in public to a neu­tral jury. And you may en­joy all the con­sti­tu­tional pro­tec­tions to de­fend your­self. With­out the re­quire­ment of due process, noth­ing would pre­vent the gov­ern­ment from tak­ing any­thing it cov­eted or killing any­one — Amer­i­can or for­eign — it hated or feared.

The killing of al-awlaki and the oth­ers was with­out any due process, and that should ter­rify all Amer­i­cans. The fed­eral gov­ern­ment has not claimed the law­ful power to kill Amer­i­cans with­out due process since the Civil War; even then, the power to kill was claimed only in combat. Al-awlaki and his son were killed while they were driv­ing in a car in the desert. The Supreme Court con­sis­tently has ruled that the Con­sti­tu­tion ap­plies in war and in peace. Even the Nazi sol­diers and sailors who were ar­rested in Ama­gansett, N.Y., and in Ponte Ve­dra Beach, Fla., dur­ing World War II were en­ti­tled to a trial.

The le­gal au­thor­ity in which Mr. Holder claimed to find sup­port was the Au­tho­riza­tion for the Use of Mil­i­tary Force (AUMF), en­acted by Congress in the days fol­low­ing Sept. 11, 2001. That statute per­mits the pres­i­dent to use force to re­pel those who planned and plot­ted Sept. 11 and who con­tinue to plan and plot the use of ter­ror tac­tics to as­sault the United States. Mr. Holder ar­gued in his speech that ar­rest­ing al-awlaki — who was never in­dicted or oth­er­wise charged with a crime but is be­lieved to have en­cour­aged ter­ror­ist at­tacks in the United States — would have been im­prac­ti­cal, that killing him was the only op­tion avail­able to pre­vent him from com­mit­ting more harm, and that Congress must have con­tem­plated that when it en­acted the AUMF.

Even if Mr. Holder is cor­rect — that Congress con­tem­plated pres­i­den­tial killing of Amer­i­cans with­out due process when it en­acted the AUMF — such a del­e­ga­tion of power is not Congress’ to give. Congress is gov­erned by the same Con­sti­tu­tion that re­strains the pres­i­dent. It can no more au­tho­rize the pres­i­dent to avoid due process than it can au­tho­rize him to ex­tend his term in of­fice be­yond four years.

In­stead of pre­sent­ing ev­i­dence of al-awlaki’s al­leged crimes to a grand jury and seek­ing an in­dict­ment and an ar­rest and trial, the pres­i­dent pre­sented the ev­i­dence to a small group of un­named ad­vis­ers and then se­cretly de­cided that al-awlaki was such an im­mi­nent threat to Amer­ica 10,000 miles away that he had to be killed. This is logic more wor­thy of Joseph Stalin than Thomas Jef­fer­son. It ef­fec­tively says that the pres­i­dent is above the Con­sti­tu­tion and the rule of law and that he can re­ject his oath to up­hold both.

If the pres­i­dent can kill an Amer­i­can in Ye­men, can he do so in Peo­ria? Even the Bri­tish, from whose tyran­ni­cal grasp the Amer­i­can colonists se­ceded, did not claim such pow­ers. And we fought a rev­o­lu­tion against them.


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