NAPOLITANO: Searching for monsters

Thomas Paine warned that the passion to punish is dangerous to liberty, even the liberty of those doing the punishing

BY JUDGE ANDREW NAPOLITANO

In the middle of his term as Secretary of State, the future president John Quincy Adams requested permission to address a joint session of Congress. Such a request is unheard of in modern times. What was on his mind?

The United States had just fought Great Britain to a draw in the War of 1812. It was fought almost entirely in Canada. Some historians believe the British began this war to win back their former colonies. Some believe the U.S. began it to seize Canada from Britain. Adams was worried that the cancer of war was spreading yet again throughout the Washington establishment, and he wanted to squelch it.

He did so successfully with his argument that offensive foreign wars don't spread liberty; they spread violence.

Fast forward to 1992, when the U.S. was waging another fruitless foreign war, this one using the CIA and the Drug Enforcement Administration — to avoid the statutes that require reporting military conflicts to Congress and the need of a congressional declaration of war. This was the drug war the U.S. was waging against the Mexican government and Mexican civilians.

In the midst of that war, the George H.W. Bush administration decided to kidnap foreigners who had violated American laws elsewhere and hold them accountable here. The theory behind this imperialistic hubris was that these folks had harmed Americans in Mexico by resisting America's violent drug wars, and in the U.S. by causing drugs to end up here.

Never mind that drugs are purchased and taken voluntarily, and never mind that the Supreme Court had already ruled that we each own our bodies and what we do to them in private is not a matter of federal regulatory interest.

All this came to a head at the Supreme Court in 1992 when a Mexican physician challenged his violent kidnapping from his medical office in Mexico, which had been orchestrated and financed by the Bush DEA.

The Supreme Court ruled that the kidnapping was lawful because the courts do not concern themselves with how the defendant was brought to the courtroom; they only concern themselves with what happens afterward. Moreover, since the U.S./Mexico extradition treaty is silent on government kidnapping, it is therefore lawful.

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This twisted understanding of first principles, among which is that government must comply with the laws that it enforces, has led to the use of FBI, CIA and DEA operatives to kidnap foreigners in foreign countries who allegedly harmed American persons or property.

As horrific as all this is, U.S. law has always required an American harm nexus, which mandated that government kidnapping could only be justified as an initial step toward redressing criminal harm actually caused by the kidnapped person to an American person or property.

Then, in 2022, Congress extended the authority of federal courts to cover crimes committed in foreign countries against foreign persons or property. By removing the American harm nexus, Congress has permitted the feds to charge whomever they please for foreign crimes committed in foreign countries against foreign victims, and it has directed federal courts to hear these cases.

This led to more U.S. government kidnappings and an expansion of presidential power to seize political or journalistic adversaries abroad just to silence them. It also gives American presidents another tool for war below the radar, as they can now legally — but not constitutionally — send small armies of federal agents dressed in military garb and possessing military gear into any countries the presidents choose in order to extract someone the presidents hate or fear.

This is not the rule of law. This is the rule of brute force. And because no American need be harmed and no American law need be broken, the president can target literally any foreigner he chooses. Lest one think my warnings are fanciful, this has already happened.

When former President Barack Obama dispatched drones to kill Americans and their foreign companions in Yemen in 2011 — none of whom had been charged with an American crime, and all of whom were surrounded by U.S. agents during the final 48 hours of their lives — he justified his murders by arguing that he killed fewer folks by his drones than those folks might have killed had they lived.

This tortuous and perverse rationale is a complete rejection of natural law principles and due process, which absolutely prohibit the first use of aggression against others and require jury trials before punishment.

Last week, Gen. Hugo Carvajal, the former head of military intelligence for Venezuela, pleaded guilty in federal court in New York City to drug trafficking in Venezuela. He had been kidnapped in Spain, where he was living in retirement, until U.S. agents whisked him away. What information will he trade for his freedom?

If it is lawful for the U.S. government to enter a foreign country and kidnap a foreign person, is it lawful for the Chinese government to enter Hawaii and kidnap an American tech executive or politician? Can the U.S. kidnap a Russian soldier who killed a Ukrainian civilian and try him here? Under the 1992 Supreme Court decision, and the 2022 legislation: YES.

Thomas Paine warned that the passion to punish is dangerous to liberty, even the liberty of those doing the punishing. It often leads to such twisted interpretations of laws as to make them unrecognizable. "He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself."

We still haven't learned the lesson of 9/11. The problem with searching the world for monsters to destroy is that they have a way of following you home.

To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.