Why Leaking Is a Lesser Crime Than Waging Unconstitutional Wars

And how base our culture has become when the hunt for truth tellers is more compelling than the cessation of unlawful government killing.

If you are still listening to those in the political class who are falling over each other to condemn leaks from the government to the media, you'd think the leaks had revealed private information in which the public has no legitimate interest, or perhaps a planned secret government mission to rescue innocents. Neither is the case.

Republicans and Democrats in Congress, most of them from the House and Senate intelligence committees, have blasted the White House for leaking to The New York Times and others the existence of President Obama's secret kill list and his cyber-warfare against Iran. According to those doing the blasting, the leaks were made in order to bolster the president's war-on-terror credentials with voters in anticipation of an onslaught against those credentials by Gov. Mitt Romney in the coming fall presidential campaign.

So, who has violated the Constitution and federal law, who has caused more harm and who has performed more of a disservice to the nation: those who leaked the truth to the media, or the president, who caused death and destruction among those he hates and fears?

We already know the basic facts, as the White House has denied none of this. The president meets every Tuesday morning with a select group of military, intelligence, national security and, occasionally, political advisers and reviews the background and photos of persons in foreign countries whom he hates or fears, some of whom are Americans. He then personally decides whom among them to kill. Then he dispatches civilian agents of the government, no doubt the CIA, to do the killing using drones. He uses the CIA to do this because if he used the military, federal law requires public reporting of that use and, eventually, congressional approval. Some of the killings have taken place in Yemen, a country that has welcomed them, and some in Pakistan, a country that has condemned them. We are at war with neither.

We also know that the president has directed the CIA to use technology to disrupt the workings of computers in Iran on a grand scale. The government of Iran consists of a gaggle of religious fanatics and crackpots who have threatened the U.S. and Israel until they are blue in the face, but these misguided authoritarians have not harmed the U.S. or any of our allies. And of course, we are not at war with Iran.

Nevertheless, the president, with the knowledge of certain members of Congress but without the consent of the House and the Senate as the law requires, destabilized and caused physical harm and financial loss to millions of innocent people in Iran -- physicians, hospital administrators, businesspeople, academics, pro-Western students, shopkeepers -- when major computer servers there were immobilized. Just imagine the chaos -- and the political reaction -- should Iranian agents cause all that computer damage here.

The president is evading federal law on the use of the military by having the now-paramilitary CIA kill people in foreign countries with drones and disrupt a foreign population with a cyber-war. And he is violating the Constitution and federal law by starting wars on his own. But the loudest and most sanctimonious of politicians are not demanding that the president follow the Constitution and the laws he has sworn to uphold. Rather, they are demanding to know who told the media about the president's war making.

Which is ultimately more harmful to freedom: that the president on his own kills and maims and destroys, or that some people in our own government who have greater fidelity to the Constitution than loyalty to an out-of-control presidency -- and who are protected by law when they reveal government crimes -- tell us what the president is up to? What kind of politicians complain about truthful revelations of unconstitutional behavior by the government, but not about death and destruction, and, let's face it, criminal abuse of power by the president? Only cynical power-hungry politicians who have disdain for the Constitution they have sworn to uphold could do this with a straight face.

The president's use of drones and cyber-warfare to kill people and to destabilize a foreign population, without a formal declaration of war, is the moral equivalent of an illegal war. When President Nixon started a war on his own in Cambodia, Congress enacted legislation over his veto to prevent that from happening again. Yet, the members of Congress who are demanding to know who told the truth to the media about President Obama's war making apparently agree with his unlawful use of the war-making power he has stolen from them.

How base our culture has become when the hunt for truth tellers is more compelling than the cessation of unlawful government killing. If the president can fight private wars and start public ones on his own, and the public is induced to focus on those who have told us what he is doing and not on his misdeeds themselves, and Congress remains a potted plant or willing dupe, the president can get away with anything.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written six books on the U.S. Constitution. The most recent is It Is Dangerous To Be Right When the Government Is Wrong: The Case for Personal Freedom.

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  • Scruffy Nerfherder||

    How base our culture has become when the hunt for truth tellers is more compelling than the cessation of unlawful government killing.

    Summed up perfectly. Should have been the last sentence.

  • Fist of Etiquette||

    They should put the Judge on television somewhere.

  • Whiterun Guard||

    He could maybe be a guest lawyer on Mock Trial with J. Reinhold.

  • ||

    SHUT UP AND TAKE MY MONEY!

  • Matrix||

    it's sad when people are more outraged that someone leaked information about war crimes than the actual war crimes themselves... I hate American politics.

  • Almanian's Evil Twin||

    I am outraged at your outrage

  • Cytotoxic||

    What war crimes?

  • James Anderson Merritt||

    Did you not see Napolitano's use of the phrase "moral equivalent of illegal war"? That means actions taken in such operations are the moral equivalent of war crimes. And if they are the moral equivalent of war crimes, I'll bet that some of them are ACTUAL war crimes. We should look into this in court.

  • box_man||

    How base our culture has become when the hunt for truth tellers is more compelling than the cessation of unlawful government killing.

    Actually, the hunt for truth tellers isn't the compelling notion for congress here. It's more compelling for congressman to hold their office and for the parties to gain advantages over each other. It was ok to use war for Bush to win re-election, and as usual per the playbook, it won't be ok for anybody else to do so. It was somewhat surprising that a nobel peace prize winner was and is so eager to wage war for political advantage, and that I would agree is a reflection of how base our culture has become.

  • Auric Demonocles||

    Well he used war to win the Peace Prize in the first place.

  • Tejicano||

    If there really were UFO's being flown by sentient life observing all this I can imagine that this would be reason enough to not want to land here.

  • Almanian's Evil Twin||

    Sure, Judge N - why don't we just fork over our defense plans to the Nazis Soviets Sandinistas Chi Comms rat-fucking Tea Baggers and let anarchy reign?! Let's just give Iran the blueprints ProE files to our drone technology and let them use it on US!

    The Constitution is a living document - NOT A SUICIDE PACT!!11 We face an existential threat EVERY DAY! The Dept of Hopeful Insecurity tells me EVERY CONSTANTLY, with a helpful COLOR CHART of teh MOOZLUM DANGERS!!!

    Also, Executive Privilege, general welfare, general disarray, massteria, protect and defend, teh childrenz, and I BLAME BUSH!!11!

  • Almanian's Evil Twin||

    Oh, also, FUCK YOU, THAT'S WHY!!11!

  • Scruffy Nerfherder||

    Dept of Hopeful Insecurity

    I like that.

  • sarcasmic||

    You forgot "Commerce Clause" and "Necessary and Proper".

  • Nyarlathotep||

    Whither Cindy Sheehan?

  • db||

    If ever a picture wailed in the darkness of neglect for alt-text...

  • Scruffy Nerfherder||

    The Select Committee of the Un-Intelligent Frowns On Your Shenanigans

  • Auric Demonocles||

    We should put Napolitano on trial.

  • Rich||

    "That Andrew Napolitano is droning on again about something. Droning ... Hmmmmm."

  • Mo' $parky||

    "Go ahead and say something bad about the USA. We DARE you."

  • ||

    Judge Napolitano, I read through your argument carefully and it is clear to me that you are a racist.

  • Mo' $parky||

    The president is evading federal law on the use of the military by having the now-paramilitary CIA kill people in foreign countries with drones and disrupt a foreign population with a cyber-war. And he is violating the Constitution and federal law by starting wars on his own.

    Obviously the Judge is an idiot and has no idea what he's talking about. All of this killing is perfectly legal, John told me so.

  • UNODIR||

    I am disappointed Judge attempts to lump these topics together like they are all the same when the facts are very different. I would have liked to see a formal declaration of war against the Taliban/Al Qaeda but Pres Bush certainly received Congressional authorization for the use of force (unlike in Libya). Anyone who is in Al Qaeda or who materially supports them are enemy combatants. Yemen and Pakistan are not neutral states; they have by their actions if not formally by treaty entered into a coalition with the US/NATO. Use of force in Yemen is no more an act of war against Yemen than the use of fighter aircraft over England to attack German bombers. Pakistan is more complicated; it is neither living up to its responsibilities as a coalition partner nor up to the responsibilities of a neutral state. It would be easier if they were a neutral state, law of armed conflict allows a belligerent to enter a neutral state either in hot pursuit or if the neutral is unable or unwilling to enforce its own neutrality. An example of this would be the pursuit of Rommel across North Africa – they didn’t stop at any nation’s borders to get permission to enter. Use of cyber-warfare against Iran is much messier, has little precedence and is something few know much about. We are subjected to similar attempts every day. I have to say I am uncomfortable with the attacks against Iran but I am even more uncomfortable with attribution.

  • Mo' $parky||

    So you see, this is why we HAVE to chase those dirty fuckers into their mud huts and blow them up. You never know when they could spontaneously develop the worlds largest arsenal and aim it at us.

  • UNODIR||

    or perhaps a couple of commercial aircraft.....or a large natural gas tanker....have you forgotten?

  • Mo' $parky||

    Nope, thankfully we have the TSA keeping us safe from that kind of mischief.

  • UNODIR||

    Funny. I bet you would not think it was humorous if your family had died on 9/11. I bet you would want the Pres to hunt down the enemies responsible and ensure it never happened again.

  • Mo' $parky||

    Sure, and after he did that our mission would be done. But I suppose you think it's better to kill those responsible, anyone who looks like them, and their neighbors. Not only that, we should spend the next 10 years circling their houses just in case anyone else comes along and starts talking smack about the good ole US of A.

  • Cytotoxic||

    Lacking a real argument, the peacenik will proceed to rape strawmen. Those pointing out all the bloody straw will be subject to abuse.

  • Mo' $parky||

    Lacking a real argument, the peacenik will proceed to rape strawmen. Those pointing out all the bloody straw will be subject to abuse.

    I see your rage and bloodthirst is still intact. By calling my argument a strawman I can only assume that you are unaware of the goings-on over in the middle east. Will you next tell me I should be happy to have a supreme military power killing villagers on the other side of the world to keep me safe?

  • Mensan||

    "Anyone who is in Al Qaeda or who materially supports them are enemy combatants."

    According to the Obama administration, anyone who is killed in a drone attack is a combatant

  • UNODIR||

    Judge’s article is about legality of the President’s actions. I do not understand how he contends that engaging in combat operations in Yemen (with Yemen’s approval) is an act of war. Pakistan is admittedly different but there are also numerous historical examples of cross border operations when a country is unwilling or unable to respond itself. What is the alternative? Short of summarily pulling out of Afghanistan who would you have be responsible for the execution of the war? Would you allow ALQ leadership to plan and execute operations with immunity just because they have taken safe haven in PAK/YEM?

  • Mensan||

    Irrelevant to my point. I was simply pointing out that the CIAs drone assassinations only have such high "accuracy" in killing militants rather than civilians, because the administration has decided that any men killed in a drone attack are declared terrorists ex post facto, regardless of whether there is any evidence to support that assertion.

    It's a masterful example of question begging: The President killed those people because they were terrorists, and they were terrorists because the President killed them.

  • ||

    *barf*

  • Cytotoxic||

    ^THIS^. There is a lot of straw-grasping here.

  • Ramjet||

    Alt text should read "No fruit cup for you."

  • TungoZang||

    Yeah that jsut does not make any sense at all dude, None.

    www.Anon-Wares.tk

  • Gadianton||

    I see the lack of calls by Congress to do something about Obama's unconstitutional actions as politicians taking note of the lessons in political reality taught by the impeachment of President Clinton. The simple fact is that any attempt to remove President Obama has to get past Harry Reid -- and it's not going to. Sure, if they had the stones for it, Congress could vote out a bill of impeachment, but it'd be a party line vote, and it'd get just as far in the Senate as the one they voted out against President Clinton. And then we'd be treated to another "I need to get back to work for the American people" pep rally in the Rose Garden.

    Should they do it anyway? Probably. But just keep in mind that without a Senate conviction, it's all PR and symbolism -- and that's just how the left would play it

  • ||

    e already know the basic facts, as the White House has denied none of this. The president meets every Tuesday morning with a select group of military, intelligence, national security and, occasionally, political advisers and reviews the background and photos of persons in foreign countries whom he hates or fears, some of whom are Americans. He then personally decides whom among them to kill. Then he dispatches civilian agents of the government, no doubt the CIA, to do the killing using drones. He uses the CIA to do this because if he used the military, federal law requires public reporting of that use and, eventually, congressional http://www.maillotfr.com/maill.....-3_14.html approval. Some of the killings have taken place in Yemen, a country that has welcomed them, and some in Pakistan, a country that has condemned them. We are at war with neither.

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    According to those doing the blasting, the leaks were made in order to bolster the president's war-on-terror credentials with voters in anticipation of an onslaught against those credentials by Gov. http://www.zonnebrilinnl.com/z.....c-3_7.html Mitt Romney in the coming fall presidential campaign.

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