When Presidents Kill

During the past six weeks, President Donald Trump has ordered U.S. troops to attack and destroy four speed boats in the Caribbean Sea, 1,500 miles from the United States. The president revealed that the attacks were conducted without warning, were intended not to stop but to kill all persons on the boats, and succeeded in their missions.

​Trump has claimed that his victims are “narco-terrorists” who were planning to deliver illegal drugs to willing American buyers. He apparently believes that because these folks are presumably foreigners, they have no rights that he must honor and he may freely kill them. As far as we know, none of these nameless faceless persons was charged or convicted of any federal crime. We don’t know if any were Americans. But we do know that all were just extrajudicially executed.

​Can the president legally do this? In a word: NO. Here is the backstory.

​The Constitution was ratified to establish federal powers and to limit them. Congress is established to write the laws and to declare war. The president is established to enforce the laws that Congress has written and to be commander-in-chief of the armed forces. Restraints are imposed on both. Congress may only enact legislation in the 16 discrete areas of governance articulated in the Constitution — and it may only legislate subject to all persons’ natural rights identified and articulated in the Bill of Rights.

​The president may only enforce the laws that Congress has written — he cannot craft his own. And he may employ the military only in defense of a real imminent military-style attack or to fight wars that Congress has declared. The Constitution prohibits the president from fighting undeclared wars, and federal law prohibits him from employing the military for law enforcement purposes.

​The Fifth Amendment — in tandem with the 14th, which restrains the states — assures that no person’s life, liberty or property may be taken without due process of law. Because the drafters of the amendment used the word “person” instead of “citizen,” the courts have ruled consistently that this due process requirement is applicable to all human beings. Basically, wherever the government goes, it is subject to constitutional restraints.

​Traditionally, due process means a trial. In the case of a civilian, it means a jury trial, with the full panoply of attendant protections required by the Constitution. In the case of enemy combatants, it means a fair neutral tribunal.

​The tribunal requirement came about in an odd and terrifying way. In 1942, four Nazi troops arrived via submarine at Amagansett Beach, New York, and exchanged their uniforms for civilian garb. At nearly the same time, four other Nazi troops arrived via submarine at Ponte Vedra Beach, Florida, and also donned civilian clothing. All eight set about their assigned task of destroying American munitions factories. After one of them went to the FBI, all eight were arrested.

​President Franklin Roosevelt panicked and ordered all eight summarily executed. When two of the eight protested in perfect English that they were born in the U.S., and their protests proved accurate, FDR decided to appoint counsel for all of them and to hold a trial.

​At trial, all eight were convicted of attempted sabotage behind enemy lines — a war crime. The Supreme Court quickly returned to Washington from its summer vacation and unanimously upheld the convictions. By the time the court issued its formal opinion, six of the eight had been executed. The two Americans were sentenced to life in prison. Their sentences were commuted five years later by President Harry Truman.

​The linchpin to all this was FDR’s decision to appoint counsel and have a trial. The Supreme Court made it clear that even unlawful enemy combatants — those out of uniform and not on a recognized battlefield — are entitled to due process; and, but for the trial afforded to the Nazi saboteurs, it would not have permitted their executions.

​This jurisprudence was essentially followed in three Supreme Court cases involving foreign persons whom the George W. Bush administration had arrested and characterized as enemy combatants detained at the U.S. Naval Base in Guantanamo Bay, Cuba.

​In wartime, U.S. troops can lawfully kill enemy troops that are engaged in violence against them. But, pursuant to these Supreme Court cases, the United Nations Charter — a treaty that the U.S. wrote — as well the International Covenant on Civil and Political Rights — another treaty that the U.S. wrote — if combatants are not engaged in violence, they may not be harmed, but only arrested. All this presumes that Congress has in fact declared war on the country or group from which the combatants come. That hasn’t happened since Dec. 8, 1941.

​Now, back to Trump ordering the military to kill foreigners in the Caribbean. International law provides for stopping ships engaged in violence in international waters. It also provides for stopping and searching ships — with probable cause for the search — in U.S. territorial waters. But no law permits, and the prevailing judicial jurisprudence deriving from the Constitution and federal statutes absolutely prohibits, the summary murders of folks not engaged in violence — on the high seas or anywhere else.

​The Attorney General has reluctantly revealed the existence of a legal memorandum purporting to justify Trump’s orders and the military’s killings — but she insisted the memorandum is classified. That is a non sequitur. A legal memorandum can only be based on public laws enacted by Congress and interpreted by the courts. There are no secret laws, and there can be no classified rationale for killing the legally innocent.

​If the memorandum purports to permit the president to declare non-violent enemy combatants on a whim and kill them, it is in defiance of 80 years of consistent jurisprudence, and its drafters and executors have engaged in serious criminality. Where will these extrajudicial killings go next — to Chicago?