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 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.
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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.
Happy Fourth of July.
COPYRIGHT 2014 ANDREW P. NAPOLITANO
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