The President's Private War

by Andrew P. Napolitano

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Did you know that the United States government is using drones to kill innocent people in Pakistan? Did you know that the Pakistani government has asked President Obama to stop it and he won’t? Did you know that Pakistan is a sovereign country that has nuclear weapons and is an American ally?

Last week, the Obama administration not only acknowledged the use of the drones; it also revealed that it has plans to increase the frequency and ferocity of the attacks. White House counterterrorism adviser John O. Brennan argued that these attacks are “in full accordance with the law” and are not likely to be stopped anytime soon.

Brennan declined to say how many people were killed or just where the killings took place or who is doing it. But we know that Obama has a morbid fascination with his plastic killing machines, and we know that these machines are among the favored tools of the CIA. We also know that if the president had been using the military to do this, he’d be legally compelled to reveal it to Congress and eventually to seek permission.

We know about the need to tell Congress and ask for permission because of the War Powers Act. This law, enacted in 1973 over President Nixon’s veto, permits the president to use the military for 90 days before telling Congress and for 180 days before he needs congressional authorization. Obama must believe that he can bypass this law by using civilian CIA agents, rather than uniformed military, to do his killing.

The Constitution limits the presidential use of war powers to those necessary for an immediate defense of the United States or those exercised pursuant to a valid congressional declaration of war. In this case of Pakistan, the president has neither. And international law prohibits entering a sovereign country without its consent. But Brennan argued that the Authorization for Use of Military Force (AUMF), which Congress enacted in 2001 in the aftermath of 9/11 to enable President Bush to pursue the perpetrators of 9/11, is essentially carte blanche for any president to kill whomever he wants, and that the use of drones, rather than the military or rather than arresting those the government believes have conspired to harm us, is a “surgical” technique that safeguards the innocent.

Attorney General Eric Holder made a similar unconstitutional argument a few months ago when he stated in defense of the president’s using drones to kill Americans in Yemen that the AUMF, plus the careful consideration that the White House gives to the dimensions of each killing and the culpability of each person killed, somehow satisfied the Constitution’s requirements for due process.

What monstrous nonsense all this is.

These killings 10,000 miles from here hardly constitute self-defense and are not in pursuit of a declaration of war. So, what has Congress done about this? Nothing. And what have the courts done about this? Nothing.

Prior to the president’s ordering the killing of the New Mexico-born and unindicted and uncharged Anwar al-Awlaki, al-Awlaki’s American father sued the president in federal district court and asked a judge to prevent the president from murdering his son in Yemen. After the judge dismissed the case, a CIA-fired drone killed al-Awlaki and his American companion and his 16-year-old American son.

In his three-plus years in office, Obama has launched 254 drones toward persons in Pakistan, and they collectively have killed 1,277 persons there. The New America Foundation, a Washington think tank that monitors the presidential use of drones in Pakistan, estimates that between 11 and 17 percent of the drone victims are innocent Pakistani civilians. So much for Brennan’s surgical strikes. So much for Holder’s due process.

The president is waging a private war against private persons — even Americans — whose deaths he obviously believes will keep America safe. But he is doing so without congressional authorization, in violation of the Constitution, and in a manner that jeopardizes our freedom.

Who will keep us safe from a president who wants to use drones here? How long will it be before local American governments — 313 of which already possess drones — use them to kill here because they are surgical and a substitute for due process? Can you imagine the outcry if Cuba or China launched drones at their dissidents in Florida or California and used Obama’s behavior in Pakistan as a justification?

How long will it be before even the semblance of our Constitution is gone?

Reprinted with the author’s permission.

Andrew P. Napolitano [send him mail], a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written six books on the U.S. Constitution. The most recent is It Is Dangerous To Be Right When the Government Is Wrong: The Case for Personal Freedom. To find out more about Judge Napolitano and to read features by other Creators Syndicate writers and cartoonists, visit creators.com.

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