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Trump cut down the laws to get to the Devil

Judge Andrew P. Napolitano on

"America ... goes not abroad in search of monsters to destroy." -- President John Quincy Adams (1767-1848)

Last week, President Donald Trump ordered the U.S. military to invade a then-friendly country without the knowledge or consent of its government and assassinate a visiting foreign government official. The victim was the head of Iran's military and intelligence. The formerly friendly country is Iraq. The killing of the general and his companions was carried out by the use of an unmanned drone. The general was not engaged in an act of violence at the time he was killed, nor were any of his companions. They were driving on a public highway in a van.

The president's supporters have argued that the general's death was revenge for Americans and others killed by the general's troops and surrogates. Trump has argued, more importantly, that he ordered the general's death because of what evil the general might order his own troops and surrogates to do in the future.

Can the president legally kill a person not engaged in an act of violence because of what the person might do in the future? In a word: No.

Here is the backstory.

The president has taken an oath to uphold the Constitution. The Constitution provides only two means for the federal government to kill a human being. The first is pursuant to a declaration of war, which only Congress can do. That permits the president to use the military to kill the troops of the government of the country against which war has been declared. Congress has not declared war on Iran.

 

The second way that the Constitution permits federal government killings is pursuant to due process. That means that the person to be killed is lawfully in custody, has been properly charged, lawfully tried and fairly convicted of a capital crime, and the conviction has been upheld on appeal.

Can the president kill foreign military personnel and claim the justification of self-defense? The laws of war permit him to do that, but self-defense -- actually, defense of the country -- only comes into play when the foreign military personnel are physically engaged in killing Americans or are certainly about to do so. That justification only applies -- the law here is 600 years old and has been consistently applied -- when force is imminent and certain.

Were imminence and certainty not the requirement, then nothing would prevent a president from slaying any monster he chose simply based on a fear that the monster might someday strike. Such a state of affairs is contrary to two presidential executive orders, one issued by President Gerald R. Ford and the other by President Ronald Reagan, and neither negated by Trump. Such a territorial invasion and killing also violate the United Nations Charter -- a treaty that prohibits unlawful invasions and killings of member nations' territories and officials outside of a lawful and U.N. approved declaration of war.

Roaming the world looking for monsters to slay not only violates long-standing principles of American domestic and international law, but also it violates basic Judeo-Christian moral principles, which teach that the end does not justify the means and might does not make right.

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