Can the President Kill You?
Posted by Tenth Amendment
by Andrew Napolitano

Can the president kill an American simply because the person is dangerous and his arrest would be impractical? Can the president be judge, jury and executioner of an American in a foreign country because he believes that would keep America safe? Can Congress authorize the president to do this?

Earlier this week, U.S. Attorney General Eric Holder attempted to justify presidential killing in a speech at Northwestern University law school. In it, he recognized the requirement of the Fifth Amendment for due process. He argued that the president may substitute the traditionally understood due process – a public jury trial – with the president’s own novel version of it; that would be a secret deliberation about killing. Without mentioning the name of the American the president recently ordered killed, Holder suggested that the president’s careful consideration of the case of New Mexico-born Anwar al-Awlaki constituted a substituted form of due process.

Holder argued that the act of reviewing al-Awlaki’s alleged crimes, what he was doing in Yemen and the imminent danger he posed provided al-Awlaki with a substituted form of due process. He did not mention how this substitution applied to al-Awlaki’s 16-year-old son and a family friend, who were also executed by CIA drones. And he did not address the utter absence of any support in the Constitution or Supreme Court case law for his novel theory.

The Fifth Amendment to the Constitution states that the government may not take the life, liberty or property of any person without due process. Due process has numerous components, too numerous to address here, but the essence of it is “substantive fairness” and a “settled fair procedure.” Under due process, when the government wants your life, liberty or property, the government must show that it is entitled to what it seeks by articulating the law it says you have violated and then proving its case in public to a neutral jury. And you may enjoy all the constitutional protections to defend yourself. Without the requirement of due process, nothing would prevent the government from taking anything it coveted or killing anyone – American or foreign – it hated or feared.

The killing of al-Awlaki and the others was without any due process whatsoever, and that should terrify all Americans. The federal government has not claimed the lawful power to kill Americans without due process since the Civil War; even then, the power to kill was claimed only in actual combat. Al-Awlaki and his son were killed while they were driving in a car in the desert. The Supreme Court has consistently ruled that the Constitution applies in war and in peace. Even the Nazi soldiers and sailors who were arrested in Amagansett, N.Y., and in Ponte Vedra Beach, Fla., during World War II were entitled to a trial.

The legal authority in which Holder claimed to find support was the Authorization for the Use of Military Force (AUMF), which was enacted by Congress in the days following 9/11. That statute permits the president to use force to repel those who planned and plotted 9/11 and who continue to plan and plot the use of terror tactics to assault the United States. Holder argued in his speech that arresting al-Awlaki – who has never been indicted or otherwise charged with a crime but who is believed to have encouraged terrorist attacks in the U.S. – would have been impractical, that killing him was the only option available to prevent him from committing more harm, and that Congress must have contemplated that when it enacted the AUMF.

Even if Holder is correct – that Congress contemplated presidential killing of Americans without due process when it enacted the AUMF – such a delegation of power is not Congress’ to give. Congress is governed by the same Constitution that restrains the president. It can no more authorize the president to avoid due process than it can authorize him to extend his term in office beyond four years.

Instead of presenting evidence of al-Awlaki’s alleged crimes to a grand jury and seeking an indictment and an arrest and a trial, the president presented the evidence to a small group of unnamed advisers, and then he secretly decided that al-Awlaki was such an imminent threat to America 10,000 miles away that he had to be killed. This is logic more worthy of Joseph Stalin than Thomas Jefferson. It effectively says that the president is above the Constitution and the rule of law, and that he can reject his oath to uphold both.

If the president can kill an American in Yemen, can he do so in Peoria? Even the British king, from whose tyrannical grasp the American colonists seceded, did not claim such powers. And we fought a Revolution against him.

Nice...

*shakes head*

The Fifth Amendment to the Constitution states that the government may not take the life, liberty or property of any person without due process


if it states this,, what is the 'due process' that takes soldiers lives in war?

its not judicial is it?

Yeah whatever lets just stfu about it and call it even Bush messed up invading Iraq and Obama is killing American muslim extremist.Both parties are even now except Bush's mistake has taken more lives.

but, but,, but

congress approved Bushs bad life taking decision

and not OBamas limited life saving one,,,,

Both the Bush administration and congress believed and acted on 4 false words "it's a slam dunk" the UN never authorized the invasion.It's all FUBAR MsHarmony it's all FUBAR.

on this, we agree

war always sucks,, for somebody,,,,

The 5th applies to US citizens. Foreign soldiers do not have this right. However, the killing of civilians and "terrorists" (without letters of marque and reprisal) are unconstitutional, criminal, and immoral. Don't expect any government official to be convicted, though. (after all, a single death is a tragedy but a million deaths is a statistic) The double standard that exists for State actors will likely exist till States cease to exist.

Ummmmmm........

He can try.....

If he thinks he's bad enough!!!

It is of the utmost importance that those who are actively
plotting terrorist attacks against civilians be eliminated as
threats - by force if necessary - before they bring about
catastrophic killings such as those on 911, bus and cafe bombings
and missile attacks aimed solely at innocent men, women and
children in their homes!

=-=-=-=-=

Terror - US

Holder gives legal defense for al-Awlaki killing

Published March 05, 2012

WASHINGTON – Attorney General Eric Holder said Monday that the decision to kill a U.S. citizen living abroad who poses a terrorist threat "is among the gravest that government leaders can face," but justified lethal action as legal and sometimes necessary in the war on terror.

Holder's comments broke the administration's silence on the legal justifications for its decision to kill American-born al-Qaida operative Anwar al-Awlaki five months ago in Yemen. In a speech at Northwestern University law school in Chicago, he described al-Awlaki as concocting plans to kill Americans but he never explicitly acknowledged the administration responded by targeting the cleric for death.

Instead the attorney general outlined a three-part test for determining when a targeted killing against a U.S. citizen is legal. He said the government must determine after careful review that the citizen poses an imminent threat of violent attack against the U.S., capture is not feasible and the killing would be consistent with laws of war.

The Obama administration has refused to release the Justice Department legal opinion on al-Awlaki's killing under the Freedom of Information Act and is in court opposing efforts to have it made public.

Responding to criticism from civil libertarians, Holder flatly rejected the suggestion that the Constitution's due process protections require the president to get permission from a federal court before taking lethal action.

"The unfortunate reality is that our nation will likely continue to face terrorist threats that at times originate with our own citizens," Holder told a packed Thorne Auditorium, where all 700 seats were filled with law students, who were taking notes on their laptops, were joined by Chicago-based federal prosecutors and other observers.

"When such individuals take up arms against this country and join al-Qaida in plotting attacks designed to kill their fellow Americans there may be only one realistic and appropriate response," the attorney general continued. "We must take steps to stop them in full accordance with the Constitution. In this hour of danger, we simply cannot afford to wait until deadly plans are carried out — and we will not."

Al-Awlaki's killing in a joint CIA-U.S. military drone strike on a convoy in Yemen sparked a public debate over whether the president should have the authority to kill an American without a conviction and despite an executive order banning assassinations — which Holder called a "loaded term" that doesn't apply in this case. Until now the Obama administration has said very little about it publicly as administration officials have debated how much to reveal in response to the criticism.

The day that al-Awlaki was killed, President Barack Obama said his death was "a major blow to al-Qaida's most active operational affiliate" and "another significant milestone in the broader effort to defeat al-Qaida." But he did not acknowledge publicly that the United States was responsible for the drone attack, which was confirmed by counterterrorism officials.

Al-Awlaki was a cleric who was born in New Mexico and once preached at an Islamic center in Falls Church, Va. His sermons in English are posted all over the Internet and his name has been associated with several attempted terrorist attacks. The Justice Department has said that a Nigerian man who tried to blow up an international flight on Christmas 2009 told FBI agents that his mission was approved after a three-day visit with al-Awlaki.

Obama administration officials told The Associated Press that Obama approved al-Awlaki's killing in April 2010, when he became the first American placed on the CIA "kill or capture" list.

"Any decision to use lethal force against a United States citizen — even one intent on murdering Americans and who has become an operational leader of al-Qaida in a foreign land — is among the gravest that government leaders can face," Holder said. "The American people can be — and deserve to be — assured that actions taken in their defense are consistent with their values and their laws."

Read more: http://www.foxnews.com/us/2012/03/05/ap-source-holder-will-address-targeted-killings/

=-=-=-=-=

Tonight, I can report to the American people and the world that
the United States has conducted an operation that has killed
Osama Bin Laden.

http://youtu.be/Ellnd3M8-ow

May God have mercy on me, I’m about to defend the little brown squirrel and his handlers. This is no different than a police sniper shooting somebody and every police swat team has one or two snipers.

Wasn't the killing of southern soldiers during the civil war an
act of killing U.S. citizens who posed a danger to the country?

the confederates states seceded the union - read the articles of war - civil rights are pretty much suspended

9/11 was an act of war -

What's the difference between states seceding from the union and a person who joins a group that is actively involved in doing harm to the same union?

not sure - I'm not that well schooled in the legal technicalities. but the southern secession was a formal document - with some kind of process - The Articles of the Confederation or something like that - I'd have to look it up tho as far as content and exactly how it was presented to the union. IMO it was mostly an economic decision - hatred of the carpetbaggers....anyway, it was not really a subversive activity - it was pretty out in the open...clearly

not sure the confederate states had any real desire or agenda to harm the union either as far as those states remaining in the union - they just wanted to run their own show - that was more their agenda than harmimg the union

that being, of course, a matter of perception

tho both of your descriptions would be considered treasonous
jmho

The south fired the first shot, Fort Sumter.
Carpetbaggers came after the war was over during the restitution.
Can't get much more subversive than sending over an Army.
Most of the beginning of the war was the north fighting off
invasions by the south.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[1]





Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.




...both from the constitution,,,

Interesting tid-bit since ya'll mentioned the Civil War.

A. Johnson, the guy who succeeded Lincoln.

Congress created a bill, once he took office; that forbid him from firing any already approved congressmen.

He believed this unconstitutional, fired someone anyway, and was impeached. -.-

If I recall correctly, Lincoln was with the Union, and Johnson was said to favor the south.

Don't quote me on the last part though.

Basically comes down to Congress doing wtf ever it wants whenever it wants.

How many years? Not much has changed.

but we continue to think the President has the most 'power'.......

That' why I hate "politics" and I'm not as narrow-minded to just simply hate whomever the current president is and pass all the blame on him.

That's why I consider the President just a figurehead.
The only true requirements for him is being able to speak to foreign dikkheads, oops, I mean figureheads.

It's like this:

President wants to pass a bill, congress rejects; end of sorry (for the most part unless he refiles it).

Congress wants a bill passed, President vetoes it, congress can override the veto. (Last I checked).

Thus, a figurehead.