Searching for Monsters

August 29, 2024

Public acceptance of U.S. foreign excess — searching for monsters to destroy — leads to acceptance of war, and to acceptance of war by other means, writes Andrew P. Napolitano.

President George H.W. Bush displaying what he said was a bag of crack cocaine during a 1989 speech promoting his “war on drugs.” (C-span still)

Andrew P. Napolitano

“America goes not abroad in search of monsters to destroy …

She might become the dictatress of the world,

But she would no longer be the ruler of her own spirit.”

— John Quincy Adams (1767-1848)

In the middle of his term as secretary of state, the future president John Quincy Adams addressed a joint session of Congress. What prompted this unusual event?

The United States had just fought 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, but only for about 20 years, 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 C.I.A. and the Drug Enforcement Administration (D.E.A.) — to avoid the statutes that required 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 American agents in Mexico by resisting America’s violent drug wars, and in the U.S. by exporting drugs to America.

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 none of the federal government’s business.

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

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.

Green Light for Violent Kidnappings

U.S. Supreme Court Building. (Christina B Castro, CC BY-NC 2.0)

This twisted understanding of first principles, among which is that government must comply with its own laws, has led to the use of F.B.I., C.I.A. and D.E.A. operatives to kidnap foreigners in foreign countries who allegedly harmed Americans by violating U.S. laws. This is violent kidnapping, often directing the victim to a Third World country for torture and then to the U.S. for trial.

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 harm caused by the kidnapped person to an American victim.

Until, that is, President Joe Biden joined hands with congressional Republicans to show how tough they are.

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

This will open the floodgates to more U.S. government kidnappings and expand radically the power of American presidents to seize political or journalist 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 president chooses in order to extract someone the president hates or fears.

And if the kidnapped person is eventually acquitted here in a criminal trial, because of the Supreme Court’s recent intellectually dishonest presidential immunity ruling, he cannot sue the president for authorizing his abduction.

Rule of Brute Force

U.S. Department of Justice headquarters in Washington, D.C. (M.V. Jantzen, Flickr, CC BY-NC-SA 2.0)

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 12 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, perverse and authoritarian 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.

Yet, public acceptance of American foreign excess — searching for monsters to destroy — leads to acceptance of war, and to acceptance of war by other means.

If it is lawful for the U.S. government to enter Mexico and kidnap a Mexican physician for prescribing drugs, is it lawful for the Chinese government to enter Hawaii and kidnap an American tech executive for bribing Chinese officials? 

Can the U.S. kidnap Benjamin Netanyahu and try him here for murder and genocide committed in Gaza? Yes, but don’t hold your breath. He’s America’s monster.

Thomas Paine warned that the passion to punish is dangerous to liberty, even the liberty of those doing the punishing. It often makes the law 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.”

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.

Published by permission of the author.

COPYRIGHT 2024 ANDREW P. NAPOLITANO 

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