President Barack Obama does not have the constitutional authority to order a drone strike on an American who officials claim was fighting with al-Qaida and plotting terrorist attacks against the U.S., former Judge Andrew Napolitano said Tuesday.



Obama "does not have war powers to kill an American . . . There are two clauses in the Constitution that specifically protect Americans," Napolitano, a former New Jersey Superior Court judge, told "Fox & Friends."



Napolitano said it was "defined as treason" if an American was waging war on the U.S. Under that circumstance, he said American citizens were guaranteed a jury trial and could not be convicted "unless there were two witnesses to the same overt act."



Officials admitted Monday a U.S. citizen was suspected of actively planning to attack Americans overseas. Officials within the Obama administration stated they had been debating whether to kill him under a new drone strike policy.



The new drone policy stipulates targeted killings must be in an ongoing military conflict, the target must have taken up arms against the U.S., there must be no possibility of arresting the suspect, and the decision must be made by senior political leaders.



Napolitano said the drone policy was written by the president and, therefore, was not U.S. law. He said only the Constitution allowed Congress to write laws.



"Only the Congress can enact a law, especially a law giving the president authority to kill an American," Napolitano said. "The president's efforts to bypass the Constitution . . . in foreign affairs is just as unconstitutional as its efforts to bypass the Constitution in domestic affairs."



The law allowed an American suspected of terrorism against the U.S. to be kidnapped, arrested, or put on trial, Napolitano said. However, to target a drone strike on an individual suspected of terrorism was "an insufficient basis to execute him without a trial."



Napolitano argued that even if Congress authorized the action against the American suspect, "it would still be against the constitutional protections that he's afforded."





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