CIA agents were ordered to kill an American and his teenage son and the sonís American friend while they were in a desert in Yemen in 2011. He says he did so because the adult had encouraged folks to wage war on the United States and the children were just ďcollateral damage.Ē He says further that heíll do this again when he is convinced that killing Americans will keep America safe. He says he knows the adult encouraged evil, and his encouragement caused the deaths of innocents. The adult was never charged with a crime or indicted by a grand jury; he was just targeted for death by the president himself and executed by a CIA drone.
International law and the law of war, to both of which the United States is bound by treaty, as well as federal law and the Judeo-Christian values that underlie the Declaration of Independence (which guarantees the right to live) and the Constitution (which permits governmental interference with that right only after a congressional declaration of war or individual due process) all provide that the certainty of the identity of a human target, the sincerity of the wish for his death, the perception of his guilt and imminent danger are insufficient to justify the governmentís use of lethal force against him. The president may only lawfully kill after due process, in self-defense or under a declaration of war.
The reasons for the constitutional requirement of a congressional declaration of war are to provide a check on the presidentís lust for war by forcing him to obtain formal congressional approval, to isolate and identify the object of war so the president cannot kill whomever he pleases, to confine the warfare to the places where the objectís military forces are located so the president cannot invade wherever he wishes, and to assure termination of the hostilities when the object of the war surrenders so the president cannot wage war without end.
When war is waged, however, only belligerents may be targeted, and advocating violence against the United States is not an act of wartime violence and does not make one a belligerent. Were this not so, then nothing would lawfully prevent the United States from killing Americans who spoke out in favor of al Qaeda, and then killing Americans who spoke out against war and killing, and then killing Americans whose words became an obstacle to killing.
Thatís the reason the enabling federal legislation enacted in support of the 2001 Authorization for Use of Military Force specifically exempts expressive conduct from the ambit of prohibited criminal or warlike behavior that can provide the basis for any government prosecution or military belligerence. So, the feds can shoot at a guy with a bomb in his hands when he is about to explode it, but not at a guy with a megaphone in his hands when he is about to speak through it.