OPINION:
President Trump’s use of the U.S. military to kill people on speedboats 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 Constitution’s guarantee of due process applies to 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”). 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.
I am offering an educated guess as to the administration’s argument. The reason we don’t know the argument precisely is that the Justice Department classifies it. 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.
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 Obama ordered the CIA to kill Anwar al-Awlaki and his son, both natural-born American citizens, it 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. Twelve intelligence agents followed him 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 Mr. Obama’s 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 U.S. District Court for the District of Columbia against Mr. Obama, in which he argued that the president was planning to kill his son. He sought an injunction against that. The Justice Department argued that no such plans were in the works and, even if there were, the father lacked standing to seek the injunction, as the president’s plans were aimed at his son, not him. The Constitution requires standing; only those who are 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 CIA drone while peacefully sitting at an outdoor cafe in Yemen.
Now back to the Trump administration and its murdering of people 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.
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 be based only on probable cause of crime. What probable cause did the Navy have to arrest the survivors after it destroyed their boat and any evidence on it? 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 Mr. Trump has claimed them to be, why did the Navy set them free?
This is not a matter of trusting Mr. Trump or of approving of his goals. 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 in its hands what 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 the Constitution means what it says welcome this challenge.
• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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