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The Tyranny of One Man's Opinion
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Thomas Cromwell was the principal behind-the-scenes fixer for much of the reign of King Henry VIII. He engineered the interrogations, convictions and executions of many whom Henry needed out of the way, including his two predecessors as fixer and even the king’s second wife, Queen Anne.

When Cromwell’s son, Gregory, who became sickened as he watched his father devolving from counselor to monster, learned that an executioner for the queen had been sent for from France a week before her conviction, he asked his father what the purpose of her trial was if the king had preordained the queen’s guilt and prepaid the executioner. Cromwell replied that the king needed a jury to give legitimacy to her conviction and prevent the public perception of “the tyranny of one man’s opinion.”

In America, we have a Constitution not only to prevent the perception but also to prevent the reality of the tyranny of one man’s opinion. The Constitution’s Fifth Amendment makes clear that if the government wants life, liberty or property, it cannot take it by legislation or executive command; it can do so only by due process — a fair jury trial and all its constitutional protections.

The constitutional insistence upon due process was the result of not only the Colonial revulsion at the behavior of Henry and his successors but also the recognition of the natural individual right to fairness from the government. If one man in the government becomes prosecutor, judge and jury, there can be no fairness, no matter who that man is or what his intentions may be. That is at least the theory underlying the requirements for due process.

President Barack Obama has rejected not only the theory but also the practice of due process by his use of drones launched by the CIA to kill Americans and others overseas. The use of the CIA to do the killing is particularly troubling and has aroused the criticism of senators as disparate in their views as Rand Paul and John McCain, both of whom have argued that the CIA’s job is to steal and keep secrets and the military’s job is to further national security by using force; and their roles should not be confused or conflated, because the laws governing each are different.

Theirs is not an academic argument. The president’s use of the CIA is essentially unlimited as long as he receives the secret consent of a majority of the members of the House and Senate intelligence committees. The secret use of these 37 senators and representatives constituting the two committees as a Congress-within-the Congress is profoundly unconstitutional because Congress cannot delegate its war-making powers to any committee or group without effectively disenfranchising the voters whose congressional representatives are not in the group.

ORDER IT NOW

Moreover, the War Powers Resolution regulates the president’s use of the military and essentially precludes secret wars. It requires the public consent of a majority of the full Congress for all offensive military action greater than 90 days. That, in turn, brings about transparency and requires a national political will to use military force.

President Obama has formulated rules — agreed to by a majority of the 37, but not by a majority in Congress — that permit him to kill Americans and others overseas when he believes they are engaging in acts that pose an imminent threat to our national security, when their arrest would be impracticable and when personally authorized by the president. This is not federal law, just rules Obama wrote for himself. Yet none of the Americans he has killed fits any of those rules.

Last week, the White House revealed that in January, the government launched its 446th drone into a foreign land, and this one killed three Americans and an Italian, none of whom had been targeted or posed a threat to national security at the time of his murder. The drone, which was dispatched by a computer in Virginia, was aimed at a house in Pakistan and was sent on its lethal way without the approval of the Pakistani government or the knowledge of President Obama.

The use of drones is not only constitutionally impermissible but also contraindicated by the rules of war. Drones pose no threat and little danger to those doing the killing. Except when the intelligence is bad — as it was in the January case revealed last week — deploying drones is a low-risk endeavor for the country doing so. But Obama’s wars by robots produce more killing than is necessary. War should be dangerous for all sides so as to limit its lethality to only those venues that are worth the risk — those that are vital for national security.

If war is not dangerous, it will become commonplace. By one measure — the absence of personal involvement by decision-makers — it has become commonplace already. A mere three years after his self-written rules for the deployment of drones were promulgated, the president has delegated the authority to order drone killings to his staff, and the members of the congressional intelligence committees have delegated their authority to consent to their staffs.

Obama apparently doesn’t care about the Constitution he swore to uphold, but he should care about the deaths of innocents. Obama’s drones have killed more non-targeted innocents in foreign lands than were targeted and killed in the U.S. on 9/11.

And the world is vastly less stable now than it was on 9/11. The president’s flying robots of death have spawned the Islamic State group — a monstrosity far exceeding even Henry VIII and Thomas Cromwell in barbarity.

Copyright 2015 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Foreign Policy • Tags: Drone War 
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  1. Judge, I have little problem with your characterization of Obama and Congress except for some not so small details;

    1) the system as set up is deliberately engineered to ‘CYA’ or protect the criminals at the top. That Obama or the committee members or the Congress per se, do not pull the trigger is no escape of liability, this much should be clear in any principled structures. The congress authorized the structures and they are as well the criminals. You should use that particular word, “criminals”, noting it is not only a past Republican controlled House or the Obama administration alone, but also a presently Republican controlled congress including Senate. Which brings up my next point:

    2) This assassination regime did not begin with Obama and is by no means limited to drones:

    http://ronaldthomaswest.com/2014/02/24/the-alpha-chronology/

    ^ It’s (in my case) personal and certainly is not ‘the tyranny of [any] one man’s opinion’

  2. Tyranny is when what is legal for the government is illegal for the citizen. Any man who thinks government should operate based on his ideas has ideas that are idiotic.

  3. Hell, none of this should come as a surprise. The officials of the U.S. Government have abandoned whatever fidelity to the law they once had.

    Again, ladies and gentlemen, keep things like nullification and secession in mind, will you? . . .

  4. Anonymous • Disclaimer says:

    OBAMA AND THE CIA AGENTS CAN BE INDICTED IN PAKISTAN.

    I agree with you, Sir. What Obama is doing is illegal, and criminal, to be exact. Because killing people (without due process) is murder, according to American law and Pakistani law.

    Illegal orders to kill are—illegal. So the CIA agents are guilty of murder.

    The Republicans can appoint a special prosecutor to charge Obama and the CIA agents doing the killings. But most are RINO and controlled opposition it seems.

    Since the death occurred in Pakistan (or whatever other countries these deaths occur in), Pakistan has jurisdiction. A Pakistani Prosecutor should file charges against Obama and the rogue CIA agents and an arrest warrant can be issued against them. Pakistan is a member of INTERPOL and a red corner alert will then follow against Obama and the CIA agents doing the killing. Once out of office, he can be extradited to Pakistan and tried. The US courts may (illegally) not extradite him to protect him claiming he has immunity but may extradite the CIA agents.

    Of course, US would then try to stop foreign aid to Pakistan. But other countries not dependent on US aid do have this option.

    In fact, that is exactly what Italy once did–indicted CIA agents who kidnapped a target there.

  5. It’s not just one man, it’s the desires of the few through donorist capture against the interests and rights of the many. It can be described in a word, though: oligarchy.

  6. Anonymous • Disclaimer says:

    And yet, the majority of Americans almost certainly support the drone program (in concept, obviously not in any particular instance). In fact, Obama’s actions in this regard are probably the most broadly popular of anything he’s done in his presidency.

    This program is hardly a secret, even though the process by which it operates is highly so. Americans see the program as primarily addressed at external enemies that we have no particular obligation to. The few American “citizens” deliberately targeted are citizens only legally (that is they were born in this country but raised outside of it) and as such are (rightly in my opinion – birthright citizenship is a relic of an era of more primitive transportation, and should only be granted to those whose parents are at least legal residents) seen as not particularly deserving of any consideration.

    Whether the policy is wise is a different question. But by any reasonably doctrine of agency, Obama is acting on behalf of and with the support of the country. If he is guilty of murder, we all are.

    • Replies: @Ronald Thomas West
  7. @Anonymous

    If he is guilty of murder, we all are

    That’s the view of many, many people exterior to the USA (and especially of those communities whose innocents have been murdered by drone, profiling has led to far too many mistakes because it a very inexact method of determining targets)

  8. Anonymous • Disclaimer says:

    The days when a nation’s army or navy was led by the ruler of that nation have been pretty much dead for a thousand years. Napoléon Bonaparte being the one major exception.

    Personally, I think no President should be able to use military force anywhere in the world without either personally leading it; or by accepting his or her own execution at either the end of hostilities, or the end of his or her term of office. As it currently stands, any President who has never served in the military who exercises military power does so only as a pure and abject coward.

    • Replies: @Kat Grey
  9. Kat Grey says:
    @Anonymous

    Nor do the leaders send their own sons and daughters to fight and die; just those of others, mainly working class tax payers.

  10. Huh. I’d assumed the “one man” referred to in the judge’s headline was going to be Justice Kennedy.

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