President Donald Trump’s use of the U.S. military to kill persons on speed boats in international waters, or in territorial waters claimed by other sovereign nations — all 1,500 miles from the U.S. — has posed grave issues of due process. The Constitution’s guarantee of due process requires it for every person, not just Americans. The operative language of the Fifth Amendment is that “No person … shall be deprived of life, liberty, or property without due process of law.”

The Trump administration has claimed that it can kill whomever it designates as an unlawful enemy combatant and the due process it provides is the intelligence gathered by American spies and the White House analysis of that intelligence. This secret analysis, the government’s argument goes, satisfies the president that the folks he has ordered killed are engaging in serious and harmful criminal behavior, and somehow is a lawful and constitutional substitute for the jury trial and its attendant procedural protections that the Constitution commands.

To be fair, I am offering an educated guess as to the administration’s argument. The reason we don’t know the argument precisely is that the Department of Justice calls it classified. How could a legal argument possibly be secret in light of well-settled First Amendment jurisprudence? It can’t. The Supreme Court has ruled consistently that there are no secret laws or secret rationales for employing the laws. Moreover, it has ruled that the First Amendment assures a public window on government behavior whenever it seeks to take life, liberty or property.

The last time we went through efforts to obtain the government’s legal argument for presidential targeted killing was during the Obama administration. When President Barack Obama ordered the CIA to kill Anwar al-Awlaki and his son — both natural-born American citizens — it, too, claimed a secret legal rationale.

Al-Awlaki was not engaged in any violent acts. He had been followed by 12 intelligence agents during his final 48 hours of life. Those agents couldn’t legally arrest him, because he hadn’t been charged with a crime, but in the Obama logic, they could legally kill him.

When those of us who monitor the government’s infidelity to the Constitution publicly pointed out the flaws in the Obama argument, it reverted to the argument that secret internal deliberations are a constitutionally adequate substitution for traditional due process.

As to the Trump administration and its murdering persons on the high seas, the stated public reason for doing so is that it is better to kill these folks before the drugs they are carrying reach their willing American buyers.

But these killings are premised on success, so that there are no survivors to bring a cause of action against the president and the government. On Oct. 17, the Department of Defense announced that in one of the attacks, it failed to kill all the passengers, and two survivors were “rescued” and arrested by the U.S. Navy.

Surely the administration did not expect this legal quagmire. An arrest can only be based on probable cause of crime. What probable cause did the Navy have to arrest the survivors after it had destroyed their boat and any evidence in the boat?

This is not a matter of trusting Trump or not, or of approving of his goals or not. It is a matter of complying with due process procedures as old as the republic. The sine qua non of due process is a fair, transparent and indifferent evaluation of evidence by a neutral judicial officer before guilt can be established and punishment administered. Channeling Justice Felix Frankfurter, the history of human freedom is paying careful attention to the procedures the government employs.

Now the administration has on its hands that which it most feared — living plaintiffs with standing to challenge the president’s authority in a federal court. They have claims for attempted murder and kidnapping. Those of us who believe that the Constitution means what it says welcome this challenge.

Judge Andrew P. Napolitano, the youngest life-tenured Superior Court judge in the history of New Jersey, is senior judicial analyst for Fox News. He lectures nationally on the U.S. Constitution, the rule of law, civil liberties in wartime, and human freedom.

https://www.dailypress.com/2025/10/26/column-trumps-boat-strikes-raise-due-process-questions/