Above photo: U.S. Marines with the special-operations capable 22nd Marine Expeditionary Unit conduct live fire drills aboard USS Iwo Jima in the Caribbean Sea on Sept. 17 in support of the U.S. Southern Command mission, Department of War-directed operations and the president’s priorities. U.S. Marine Corps/Tanner Bernat/Wikimedia Commons.
After a hitch in the administration’s speedboat-killing operations, there are now living plaintiffs with standing to challenge the president’s authority.
President Donald Trump’s use of the U.S. military to kill persons on speed boats in international waters, or in territorial waters claimed by other sovereign nations — all 1,500 miles from the U.S. — has posed grave issues of due process.
The U.S. Constitution’s guarantee of due process requires it for every person, not just Americans. The operative language of the Fifth Amendment is that “No person … shall be deprived of life, liberty, or property without due process of law.”
The Trump administration has claimed that it can kill whomever it designates as an unlawful enemy combatant — it prefers the political phrase “narco-terrorist” — and the due process it provides is the intelligence gathered by American spies and the White House analysis of that intelligence.
This secret analysis, the government’s argument goes, satisfies the president that the folks he has ordered killed are engaging in serious and harmful criminal behavior, and somehow is a lawful and constitutional substitute for the jury trial and its attendant procedural protections that the Constitution commands.
To be fair, I am offering an educated guess as to the administration’s argument. The reason we don’t know the argument precisely is that the Department of Justice calls it classified. This is, of course, a non sequitur. How could a legal argument possibly be secret in light of well-settled First Amendment jurisprudence? It can’t.
The Supreme Court has ruled consistently that there are no secret laws or secret rationales for employing the laws. Moreover, it has ruled that the First Amendment assures a public window on government behavior whenever it seeks to take life, liberty or property.
Obama’s Secrecy Precedent
The last time we went through efforts to obtain the government’s legal argument for presidential targeted killing was during the Obama administration. When President Barack Obama ordered the C.I.A. to kill Anwar al-Awlaki and his son — both natural born American citizens — it, too, claimed a secret legal rationale.
Yet some brave soul who had access to that rationale leaked it to the press. The rationale likened killing al-Awlaki and his 16-year-old son to police shooting at fleeing bank robbers who are shooting at the police.
The Obama justification was absurd, as al-Awlaki was not engaged in any violent acts. He had been followed by 12 intelligence agents during his final 48 hours of life. Those agents couldn’t legally arrest him, because he hadn’t been charged with a crime, but in the Obama logic, they could legally kill him.
When those of us who monitor the government’s infidelity to the Constitution publicly pointed out the flaws in the Obama argument, it reverted to the argument that I suspect the current administration is secretly using. Namely, that its secret internal deliberations are a constitutionally adequate substitution for traditional due process.
It gets worse.
Before al-Awlaki and his son were murdered, al-Awlaki’s father unsuccessfully brought an action in the U.S. District Court in Washington, D.C., against President Obama, in which he argued that the president was planning to kill his son, and he sought an injunction against that.
The DOJ argued that there were no such plans in the works and — even if there were — the father lacked standing to seek the injunction since, by his own admission, the president’s plans were aimed at his son, not him. The Constitution requires standing — only those truly and directly and uniquely harmed by a defendant may invoke the protection of a federal court.
During the oral argument on the government’s successful motion to dismiss the elder al-Awlaki’s case, the court opined that the son — the one who was murdered mere weeks after this case was dismissed — would have had standing to sue. The son and the grandson were literally evaporated by a C.I.A. drone while peacefully sitting at an outdoor cafe in Yemen.
Trump’s Premise Based on No Survivors
Now back to the Trump administration and its murdering persons on the high seas. The stated public reason for doing so — this is a political reason, not a valid legal one — is that it is better to kill these folks before the drugs they are carrying reach their willing American buyers.
But these killings are premised on success, so that there are no survivors to bring a cause of action against the president and the government. Last week, the Department of Defense announced to its dismay that in one of the seven attacks on speedboats in the Caribbean, it failed to kill all the passengers, and two survivors were “rescued” and arrested by the U.S. Navy.
Surely the administration did not expect this legal quagmire. An arrest can only be based on probable cause of crime. What probable cause did the Navy have to arrest the survivors after it had destroyed their boat and any evidence in the boat? Of course, the government won’t say.
What legal rationale did the administration employ when deciding what to do with the survivors? Again, the government won’t say. If they were the narco-terrorist monsters — again, a political phrase, not a legal one — that President Trump has claimed them to be, why did the Navy set them free?
This is not a matter of trusting President Trump or not, or of approving of his goals or not. It is a matter of complying with due process procedures as old as the republic.
The sine qua non of due process is a fair, transparent and indifferent evaluation of evidence by a neutral judicial officer before guilt can be established and punishment administered — all pursuant to statutes duly enacted.
Channeling Justice Felix Frankfurter, the history of human freedom is paying careful attention to the procedures the government employs.
Now the administration has on its hands that which it most feared — living plaintiffs with standing to challenge the president’s authority in a federal court. They have claims for attempted murder and kidnapping. Those of us who believe that the Constitution means what it says welcome this challenge.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano,visit here.
