Judge Andrew Napolitano

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.


Judge Andrew Napolitano

Judge Andrew P. Napolitano is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. He sat on the bench from 1987 to 1995, during which time he presided over 150 jury trials and thousands of motions, sentencings and hearings. He taught constitutional law at Seton Hall Law School for 11 years, and he returned to private practice in 1995. Judge Napolitano began television work in the same year.