Independence Day, America Again Has a Monarch
We have gone from an inherited tyrant to an elected
By Andrew Napolitano
July 04, 2014 "ICH"
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 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. And it 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.
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.
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 Times appealed.
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.
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.
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. But 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
terror 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
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 murder. 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 murder by a CIA drone. The drone that
killed him was soon followed by drones that killed
his son and two other Americans.
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.
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.
Fourth of July.
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
Theodore and Woodrow: How Two American
Presidents Destroyed Constitutional Freedom.
©2012 Reason Foundation.