After a brief holiday last week, I returned to some heavy reading, courtesy of the federal government. Some of the materials that I read were gratifying, and one of them was terrifying.
In one week, the Supreme Court told the police that if they want to examine the contents of our cellphones, whether at traffic stops or serious crime scenes, they need to get a warrant. The court told small-business owners that they needn’t pay for government-mandated insurance policies that provide for abortions for their employees, because the government is without authority to command them to do so. It told the president that he cannot wait until Saturday morning, when the Senate is not in session, to appoint high-level officials whose jobs require Senate confirmation, and then claim that they do not require Senate confirmation because the Senate was in recess. It also told selfless parents who stay home to care for their disabled children that the government may not force them to join health care labor unions and pay union dues against their will.
Buried in these opinions was a legal memorandum sent to the president on July 16, 2010, nearly four years ago, and released last week, after two years of litigation aimed at obtaining it.
The Obama administration had successfully resisted the efforts of The New York Times and others to induce a judge to order the release of the memo by claiming that it contained state secrets. The judge who reviewed the memo concluded that it was merely a legal opinion, and yet she referred to herself as being in “Alice in Wonderland”: The laws are public, and the judicial opinions interpreting them are public, so how could a legal opinion be secret? Notwithstanding her dilemma, she accepted the government’s absurd claims, and The New York Times appealed.
Then the government shot itself in the foot when it surreptitiously released a portion of its secret memo to NBC News. This infuriated the panel of federal appellate judges hearing The Times’ appeal, and they ordered the entire memo released. Either it is secret or it is not, the court thundered — and the government, which is bound by the transparency commanded by the First Amendment, cannot pick and choose which parts of its work to reveal to its favorite reporters and which to conceal from the rest of us.
Last week, the administration released the memo. It consists of 40 highly blacked-out pages, the conclusion of which is that the president can order the CIA to kill Americans who are present in foreign countries and who, in the opinion of high-level government officials, pose a threat to Americans and may be difficult to arrest.
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The memorandum acknowledges that it is unprecedented in its scope and novel in its conclusion, and requires predicting what courts will do if they review it. Lawyers often predict for their clients what courts will do, and thus from their predictions, extrapolate advice for their clients. However, history has recorded no memo before this one that has advised a president in writing that he is free to kill an American who is not engaging in violence.
The logic of the memorandum states that Americans overseas who join organizations that promote acts of terrorism are the equivalent of enemy soldiers in uniform in wartime. It follows, the memo argues, that because Congress has authorized the president to kill foreign terrorists when they are in foreign lands, he can kill Americans there, as well.
Conveniently, the memorandum never mentions the Fifth Amendment to the Constitution, which famously commands that if the government wants the life, liberty or property of any person, it can only do so via due process. Due process requires a jury trial with its attendant constitutional protections. The only recognized exceptions to this requirement are the individual and collective right to immediate self-defense. Since natural rights trump all positive law, a cop can kill a bank robber who is shooting at him, and soldiers can kill enemy soldiers who are about to shoot at them. At the root of the recognized exceptions to the requirement of due process is the active violence of the perpetrator, such that due process is impossible and such that the threat to life is clear, present and immediate.
The persons killed pursuant to this secret memo were all Americans. One, Anwar al-Awlaki, the stated target of the memo, was not engaged in combat or armed or on a battlefield when he was killed. He did not wear the uniform of an enemy army, and he was not engaged in active violence at the time of his killing. He was in a car in the desert in Yemen driving to meet his 16-year-old American son. He had been under continuous surveillance by 12 American and four Yemeni intelligence agents for the 48 hours preceding his killing by a CIA drone. The drone that killed him was soon followed by drones that killed his son and two other Americans.
This week marks the anniversary of America’s birth as a free nation, when we fought a war against a tyrant and seceded from his kingdom. We thought we had banished tyranny from our shores. We thought we had ratified a Constitution that would compel the government to respect our natural rights. We thought we had established a society based upon the rule of law.
We were wrong. We have gone from an inherited tyrant to an elected one. I have never heard President Obama say this, but it seems logical that if he thinks he can lawfully kill Americans abroad, he also thinks he can kill us here.
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Happy Fourth of July.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is an analyst for the Fox News Channel. He has written seven books on the U.S. Constitution.