A Legal Way to Kill?

By Andrew P. Napolitano

April 24, 2014

When President Obama decided sometime during his first term that he wanted to be able to use unmanned aerial drones in foreign lands to kill people — including Americans — he instructed Attorney General Eric Holder to find a way to make it legal, despite the absolute prohibition on governmental extra-judicial killing in federal and state laws and in the Constitution itself.

What they hear:
Obama, right away after becoming president started killing people, not Muslims and turban wearers, but people in foreign lands - and not necessarily French people, just folks. He's killing Americans. How dare he!!!!!! This is against the Constitution which we have all grown to love and cherish, a lot like we love Jesus and semi-automatic weapons. DAG NAB IT!@!@!@!

The Strategy:
Obama has taken away our meme. We're in the business of telling America we kill "terrorists". True, we've been too incompetent to kill them in the past. But it's hard to multi-task, and we were busy stealing the U.S. treasury.
Now we have to have a distraction, lest the "black guy" comes up looking tougher than us. The solution is to create hysteria. We need to convince people that Obama is REALLY thinking about killing AMERICANS, not terrorists.

“Judicial killing” connotes a lawful execution after an indictment, a jury trial, an appeal and all of the due process protections that the Constitution guarantees defendants. “Extra-judicial killing” is a targeted killing of a victim by someone in the executive branch without due process. The president wanted the latter, and he wanted it in secret.

He must have hoped his killing would never come to light, because the Fifth Amendment to the Constitution could not be more direct: “No person shall be … deprived of life, liberty or property without due process of law.”

Due process has a few prongs. The first is substantive, meaning the outcome must be fair. In a capital murder case, for example, the defendant must not only be found guilty by a jury, but he also must truly be guilty.

What they hear:
There's two ways to kill folks if you're the government: 1) By the law or 2) The Obama way!!!! Where'n he just offs-em. This way they, the gov-ment that is, don't let people have their amendment protections and such. It's just GUILTY and then Obama takes you out.

The Strategy:
The facts and the situation are not relevant. Do not discuss who, what, where, when or why. Instead, convince the base that Obama is using an illegal method of killing U.S. citizens, one he dreamed up and told his cronies to enforce. In the first statement we told them he's killing Americans, and now by discussing two judicial definitions of the way the government is allowed to kill people, we can associate Obama to the illegal way by saying he is denying them due process.

NOTE: The fact that Bonny and Clyde were not given due process was based on the fact they were TRYING TO KILL THE COPS ARRESTING THEM!  But I digress. This is about propaganda, not truth.

The second prong of due process is procedural. Thus, the defendant must be charged with a crime and tried before a neutral jury. He is entitled to a lawyer, to confront the witnesses against him and to remain silent. The trial must be presided over by a neutral judge, and in the case of a conviction, the defendant is entitled to an appeal before a panel of three neutral judges.

The third prong of due process means that the defendant is entitled to the procedures “of law,” that is, in the federal system, as Congress has enacted.

There are numerous additional aspects of due process, the basics of which emanate from the Constitution itself. Yet, the “of law” modifier of the constitutional phrase “due process” gives Congress, not the president, the ability to add to the due process tools available to a defendant. Congress may subtract what it has added, but neither Congress nor the president may remove any of the tools available to the defendant under the Constitution.

What they hear:
Bla, bla, bla, bla, bla, bla, Ginger. Bla, bla, bla, bla Ginger. Hey! Wait a dog gone second. This here is good scholarly type stuff. I'm starten' to feel all lawyerly and such. I might just have to go out to the cement pond and think this over.

The Strategy:
By dodging the argument, i.e. did Bonny and Clyde have the right to due process when they were trying to kill people, or to put it another way, does the executive branch have the right to kill people outside the country who are trying to harm the U.S. (which is a legitimate debate), we can drone (no pun intended) on and on talking in legal loops. This distracts the base reader but adds legitimacy to hating Obama and adding fear that Obama is obviously breaking the law. 

Until now.

What they hear:
OMG!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! IT'S ARMAGEDDON! HIDE THE WOMEN FOLK!!!!!!!!!!!!!!!!!!!!!!!!!!!

The Strategy:

Freak them out. It's never happened before.

Now, we have a president whose principal law enforcement and intelligence officers have boasted that the president relies on a legal way to kill people without the time, trouble and cost of due process. The president himself, as well as the attorney general, boasted of this, as did the director of national intelligence and the director of the CIA. Yet, when asked by reporters for The New York Times for this legal rationale, Holder declined to provide it. He argued that the legal rationale for the presidential use of extra-judicial killings was a state secret, and he dispatched Department of Justice (DoJ) lawyers to court, where they succeeded in persuading a federal judge in New York City to deny the Times’ application to order the government’s legal rationale revealed.

How can a legal rationale possibly be a state secret? The facts upon which it is based could be secret, but the laws are public, the judicial opinions interpreting those laws are public, and there are no secret non-public parts of the Constitution. Yet notwithstanding the above observations, the Times lost.

The judge who dismissed the case obviously was uncomfortable doing so. She wrote: “The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself struck by a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules — a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reason for their conclusion a secret.”

Two weeks after Judge Colleen McMahon begrudgingly dismissed that case, the feds decided to gloat, and so they leaked a 16-page summary of their “secrets” to a reporter at NBC News. To the federal appeals court to which the Times appealed, that was the last straw. It is one thing, the appellate court ruled, for the president and his team to boast that they know how to kill legally by finding a secret “adequate substitute” for due process and keeping the secret a secret, but it’s quite another for them to reveal a summary of their secrets to their favorite reporters.

Thus, earlier this week, a three-judge panel of the U.S. Court of Appeals for the Second Circuit unanimously ordered the DoJ to reveal publicly its heretofore secret rationale for extra-judicial killing.

Welcome to the strange new world of Barack Obama’s war on terror, in which there are no declarations of war against countries that foment or harbor enemy activities, as the Constitution authorizes, and in which the president claims the powers of a king by killing whomever he wishes under a rationale that his lawyers wrote for him and that he has desperately tried to keep secret.

What they hear:
Obama and his attorney general boasted and leaked secrets and the Judge was uncomfortable with the outcome, but what could she do? Obama and his jack booted thugs control the judges! And in Obama world there is no declaration of war. It's all secrets. But Obama  leaked enough to let us patriots know we'd better watch out, cause he's comin' and when he does, good bye second amendment!

The Strategy:
Remember the idea is to demonstrate to the reader that Obama is rouge, not legitimate and to drive up tension and paranoia. The government has indeed kept some documents under wraps and kept secret some of the legal documents that describe reasons the CIA believes drone strikes are legal. These would be internal memos with both arguments, the pro side and the con side.Considering the way Obama is always blathering about considering all sides of an argument (because he's an idiot in our eyes, unlike Bush who only saw things from his side), who knows what kind of jewels we can pull out of a document where Obama may be criticizing his own policy. We smell blood in the water. We won't need to fix up any more birth certificates after we get these memos! 

The Obama administration is probably right to fear the revelation of this so-called legal way to kill. The appellate court decision is a profound and sweeping rejection of the Obama administration’s passion for hiding behind a veil of secrecy.

What they hear:
But Obama's actually scared of you, 'cause you got guns, ammo and you know how to use them. In fact, it seems like a good time to go down to Billy Bob Gun's and Ammo Exchange, fire a few rounds and maybe pick up that second AR15 before they raise the price on it again.

The Strategy:
Show the prepers that they have Obama on the run.

But it is not a decision on the merits: It does not address whether the president may kill, and it only lifts a small corner of his veil.

We already know that behind Obama’s veil lies a disingenuous president who claims he can secretly kill fellow Americans. Who knows what else we will find?

What they hear:

The Strategy:
Make them hate Obama. Get them riled up. Foster a mob mentality. In chaos we can steal. At the worse we'll sell a lot of guns. At the most, we'll steal the treasury yet again.


Reprinted with OUT the author’s permission.