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NAPOLITANO: Obama’s private war

President’s drone killings in Pakistan could eventually happen here

- - Friday, May 4, 2012

Did you know the U.S. government is using drones to kill innocent people in Pakistan? Did you know the Pakistani government has asked President Obama to stop it and he won't? Did you know Pakistan is a sovereign country that has nuclear weapons and is an American ally?

Last week, the Obama administration not only acknowledged the use of the drones, it also revealed that it has plans to increase the frequency and ferocity of the attacks. White House counterterrorism adviser John O. Brennan argued that the attacks are "in full accordance with the law" and are not likely to be stopped anytime soon.

Mr. Brennan declined to say how many people were killed or just where the killings took place or who is doing them. But we know Mr. Obama has a morbid fascination with his plastic killing machines, and we know that those machines are among the favored tools of the CIA. We also know that if the president had been using the military to do this, he'd be legally compelled to reveal it to Congress and eventually to seek permission.

We know about the need to tell Congress and ask for permission because of the War Powers Act. This law, enacted in 1973 over President Nixon's veto, permits the president to use the military for 90 days before telling Congress and for 180 days before he needs congressional authorization. Mr. Obama must think he can bypass this law by using civilian CIA agents, rather than uniformed military, to do his killing.

The Constitution limits the presidential use of war powers to those necessary for an immediate defense of the United States or those exercised pursuant to a valid congressional declaration of war. In the case of Pakistan, the president has neither. International law prohibits entering a sovereign country without its consent. But Mr. Brennan argued that the Authorization for Use of Military Force (AUMF), which Congress enacted in the aftermath of the attacks of Sept. 11, 2001, to enable President George W. Bush to pursue the perpetrators, is essentially carte blanche for any president to kill whomever he wants. The use of drones, rather than using the military or arresting those the government thinks have conspired to harm us, is a "surgical" technique that safeguards the innocent.

Attorney General Eric H. Holder Jr. made a similar unconstitutional argument a few months ago when he stated in defense of the president's use of drones to kill Americansin Yemen that the AUMF, plus the careful consideration that the White House gives to the dimensions of each killing and the culpability of each person killed, somehow satisfied the Constitution's requirements for due process.

What monstrous nonsense all this is.

Those killings 10,000 miles from here hardly constitute self-defense and are not in pursuit of a declaration of war. So what has Congress done about this? Nothing. What have the courts done about this? Nothing.

Prior to the president's ordering the killing of the New Mexico-born and unindicted and uncharged Anwar al-Awlaki, the deceased's American father sued the president in federal district court and asked a judge to prevent the president from murdering his son in Yemen. After the judge dismissed the case, a CIA-fired drone killed al-Awlaki, his American companion and his 16-year-old American son.

In his three-plus years in office, Mr. Obama has launched 254 drones at persons in Pakistan, and collectively they have killed 1,277 persons there. The New America Foundation, a Washington think tank that monitors the presidential use of drones in Pakistan, estimates that between 11 percent and 17 percent of the drone victims are innocent Pakistani civilians. So much for Mr. Brennan's surgical strikes. So much for Mr. Holder's due process.

The president is waging a private war against private persons - even Americans - whose deaths he obviously thinks will keep America safe. But he is doing so without congressional authorization, in violation of the Constitution and in a manner that jeopardizes our freedom.

Who will keep us safe from a president who wants to use drones here? How long will it be before local American governments - 313 of which already possess drones - use them to kill here because they are surgical and a substitute for due process? Can you imagine the outcry if Cuba or China launched drones at their dissidents in Florida or California and used Mr. Obama's behavior in Pakistan as a justification?

How long will it be before even a semblance of our Constitution is gone?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst on the Fox News Channel. He is author of "It Is Dangerous to Be Right When the Government Is Wrong: The Case for Personal Freedom" (Thomas Nelson, 2011).