There is a principle the founders held that the contemporary American government has substantially abandoned. The principle is that the state cannot kill without due process. Due process takes specific forms in specific contexts. Operations that occur outside the recognized forms are not legitimate exercises of state authority. They are something else, and the something else needs to be named accurately.
The Fifth Amendment to the Constitution states that no person shall be deprived of life without due process of law. The text does not say no citizen. The text does not say no American. The text does not say no person within United States territorial jurisdiction. The text says no person. The universality was deliberate. The founders understood the principle as universal because the principle derived from natural rights that did not depend on political status.
The Article I assignment of the war power to Congress operates as the constitutional mechanism for establishing the form of due process that applies in warfare. When Congress declares war, the framework of armed conflict becomes operative. The persons engaged in combat on both sides have legal status as combatants. The civilian protections that apply to non-combatants are specified. The proportionality and necessity requirements operate within a framework that has been formally established through constitutional process. The declaration is the due process that makes the subsequent operations legally cognizable as warfare rather than as the killings they would otherwise be.
The founders did not assign the war power to the executive because they had specific historical reasons for not doing so. They had recently broken from a monarchy whose use of military force without constitutional constraint they identified as one of the central features of tyranny. The Declaration’s grievances against George III included specific complaints about the king’s military operations conducted without proper authorization, the quartering of troops, the suspension of civilian procedures, and the deprivation of trial by jury. The constitutional structure they designed was specifically intended to prevent the American executive from exercising the kind of authority the British monarch had exercised.
Hamilton wrote in Federalist 23 through 29 about federal defense authority within the framework of legislative authorization. Madison in Federalist 41 emphasized the legislative process requirement. Jefferson in his 1789 letter to Madison expressed concern that the constitutional text had been ambiguous enough to permit executive war-making in ways that the framework was supposed to prevent. The founders understood the requirement of congressional authorization. They wrote it into the Constitution. They defended it in the public arguments that produced ratification. They warned about its erosion in their private correspondence and public writings.
What the Framework Permits
The framework is not pacifist. It permits legitimate uses of state lethal force. The permission has specific conditions.
The framework permits civilian law enforcement that may, in narrow circumstances, involve lethal force. The use of force must be in response to imminent threats. The force must be necessary to prevent serious harm. The force must be proportionate. The procedural protections that apply after the fact include investigation, judicial review, and accountability for excesses.
The framework permits military operations within properly declared wars. Congress must issue the declaration. The operations must be conducted against the enemy specified in the declaration. The operations must comply with the laws of war that govern conduct within armed conflict. The combatants on both sides must be treated as combatants with the legal protections that status confers. The civilians must be protected through the proportionality and necessity assessments that the laws of war require.
The framework permits genuine self-defense, both individual and national. The conditions at the national level are stringent. Article 51 of the UN Charter codifies the modern international law framework, but the customary international law framework predates the Charter and reflects principles the founders would have recognized. Self-defense permits a response to an actual armed attack or to an imminent attack in narrowly specified circumstances. The response must be necessary and proportionate. The response must be reported to the UN Security Council, which then has authority to address the broader situation.
These are the conditions under which legitimate use of state lethal force occurs. The framework is comprehensive enough to permit defense of the nation and enforcement of legitimate law. The framework is restrictive enough to constrain the use of lethal force to the specific contexts in which it is genuinely necessary and properly authorized. The framework reflects the principles that distinguish legitimate states from tyrannies.
What the Contemporary Practice Has Abandoned
Congress has not declared war since 1942. In the eighty-three years since, the United States has conducted military operations in Korea, Vietnam, Cambodia, Laos, Lebanon, Grenada, Panama, Iraq during the Gulf War, Somalia, Haiti, Yugoslavia, Afghanistan, Iraq during the second Iraq War, Libya, Syria, Yemen, Pakistan, and numerous other locations. None of these operations was conducted under a formal declaration of war. The Authorizations for Use of Military Force passed in 2001 and 2002 are statutory grants of authority but they are not declarations of war in the constitutional sense, and they have been stretched to cover operations against organizations and individuals that did not exist when the authorizations were passed and that have no clear connection to the original purposes.
The executive has progressively asserted authority to conduct military operations without any congressional authorization at all. The War Powers Resolution of 1973 attempted to constrain this authority but has been substantially evaded by presidents of both parties. Operations have been conducted under claimed inherent executive authority, under expansive interpretations of statutory authorizations, and under various other doctrines that the framing generation would not have recognized as legitimate.
The targeted killing program has explicitly operated outside the framework of civilian due process. Persons identified as targets are killed without charge, without trial, and without any judicial process. The legal frameworks invoked to justify the program characterize the targets as combatants under the law of war, but the underlying conflicts within which the combatant status is supposed to apply have not been properly declared. The framework of armed conflict is invoked as the basis for treating persons as combatants when the constitutional predicate for the framework has not been established.
The civilian deaths from operations conducted under these various authorities have been categorized as collateral damage within the framework of armed conflict, when the framework of armed conflict was never legitimately established for the operations in question. The civilian protections that would have applied within properly declared wars have not applied because the operations were not conducted within properly declared wars, but the civilian deaths have been treated as if they were collateral damage from legitimate military operations rather than as what they are under the founding framework, which is killings without due process.
Specific Cases
The strikes on Iranian nuclear facilities and on Iran-aligned forces during 2025 and 2026. Congress has not declared war on Iran. The civilian deaths from these operations, including the children killed in the school strike that has been documented in independent reporting, occurred in operations conducted without the constitutional predicate that would have brought the laws of armed conflict into operation. Under the founding framework, these civilian deaths are killings without due process. The political characterization of the operations as defensive responses does not change the analysis, because the defensive response framework has specific conditions about imminence and necessity that the operations do not meet, and even if they did, the procedural requirement of congressional authorization for sustained military operations was not satisfied.
The strikes on Venezuelan civilian vessels in the Caribbean. The current administration has authorized strikes on civilian vessels that killed identified persons on those vessels. The persons killed had not been charged with any crime. They had not been tried. They had not been convicted. The killing was performed without any of the procedural protections that the Fifth Amendment requires. The administration characterizes the operations as counter-narcotics enforcement, but counter-narcotics enforcement does not include extrajudicial killing as an authorized procedure. The administration characterizes the operations as military action, but Congress has not declared war on Venezuela or on drug traffickers. Under the founding framework, these are killings without due process.
The targeted killings of persons characterized as ISIS members, Al-Qaeda members, or terrorists more generally. The American practice of killing persons characterized as terrorists in countries where Congress has not declared war operates outside the constitutional framework for warfare. The persons killed have typically not been charged with any crime in any tribunal with jurisdiction over them. They have not been tried. They have not been convicted. Under the founding framework, these are also killings without due process. The persons killed may have been engaged in conduct that would justify their prosecution and punishment under proper legal frameworks. But the legal frameworks that would have produced legitimate punishment for that conduct were not employed.
The targeted killing of Anwar al-Awlaki, an American citizen, in Yemen in 2011 under the Obama administration. The targeted killing of his sixteen-year-old son Abdulrahman al-Awlaki two weeks later, also an American citizen, also in Yemen, also under Obama administration authorization. These were killings of American citizens by the American government without any judicial process. The legal memoranda that authorized the killings have been substantially released. The reasoning they contain does not satisfy the founding framework. The reasoning relies on expansive interpretations of executive authority that the framers specifically rejected when they wrote the Constitution.
The drone strike program more generally. The thousands of drone strikes conducted across multiple administrations have killed identified persons in countries where Congress has not declared war. The persons killed have generally not been charged or tried. The civilian casualties include persons who were not even the targets of the strikes, persons whose deaths were characterized as collateral damage. Under the founding framework, the targeted killings are extrajudicial killings of the named persons. The civilian casualties are deaths produced by operations that lacked legal basis from the outset, because the framework of armed conflict that would have governed the proportionality and necessity assessments was not legally operative absent a declaration of war.
The broader operations across multiple administrations. The Iraq War, the operations in Afghanistan, the operations in Libya, the operations in Syria, the operations in Yemen, the operations in Somalia, and the various other military activities of the past sixty years have produced civilian deaths in the hundreds of thousands. None of these operations was conducted under a declaration of war. The civilian deaths are, under the founding framework, killings without due process. The doctrinal frameworks that have been invoked to characterize them as collateral damage from legitimate military operations operate within frameworks that were never legitimately established for the operations in question.
The Castro Indictment
On May 21, 2026, the Trump Justice Department unsealed an indictment against Raul Castro, the 94-year-old former Cuban leader, for the 1996 shootdown of two Brothers to the Rescue civilian aircraft that killed three American citizens and one legal permanent resident. The indictment characterizes the shootdown as a deliberate targeting of identifiable civilians, conducted under Castro’s authorization as Defense Minister, with full knowledge that the targets were civilian and with specific intent to kill the persons on board. The charges include conspiracy to kill US nationals, destruction of aircraft, and murder. The charges could result in life imprisonment or the death penalty.
The standard the indictment applies is part of the framework I have been articulating. Killing without due process is murder. Cuba had not declared war on the United States. The Brothers to the Rescue aircraft were civilian. The pilots had not been charged, tried, or convicted of anything. The killing was authorized by a political leader and executed by military officials acting under that authorization. Under the founding framework, the killing was murder, and the political leader who authorized it bears criminal responsibility for the deaths.
The indictment is correct under the framework. The Brothers to the Rescue pilots were killed without due process. The killings were murders. Castro bears responsibility.
The problem is that the framework, applied consistently, produces the same conclusion about American officials whose authorizations have produced killings without due process at vastly larger scales. The conclusion is uncomfortable because it implicates essentially the entire structure of contemporary American foreign policy. The conclusion is also accurate, because the framework is what it is, and operations outside the framework are operations outside the framework regardless of which government conducts them.
If the Castro indictment is correct under the framework, then Trump’s authorization of the Venezuelan vessel strikes also produces criminal responsibility for the killings that resulted. Trump’s authorization of the Iran operations also produces criminal responsibility for the civilian deaths that resulted, including the children killed at the school. Biden’s authorization of operations during his administration produces criminal responsibility for the killings that resulted. Obama’s authorization of the drone program produces criminal responsibility for the thousands of killings without due process that the program executed. Bush’s authorization of the operations in Iraq and Afghanistan produces criminal responsibility for the hundreds of thousands of civilian deaths from those operations. Clinton’s authorization of the strike on the Al-Shifa pharmaceutical plant produces criminal responsibility for the civilian deaths that resulted from the elimination of medical capacity in Sudan.
These conclusions follow from consistent application of the framework. The framework is the framework the founders articulated. The framework is the principle that legitimate government requires due process for any deprivation of life. The framework does not have exceptions for politically aligned actors. The framework does not have exceptions for operations characterized as defensive when the defensive framework’s conditions are not met. The framework does not have exceptions for operations conducted by powerful states against weaker states. The framework applies universally because it derives from natural rights that the founders understood as universal.
Prosecution of Law and Persecution by Law
The American legal system has not applied the framework to American officials. It has applied the framework, in the Castro indictment, to a politically adversarial foreign leader. It has not applied the framework to American officials whose conduct meets the same description at vastly larger scale.
This is the selectivity that distinguishes persecution by law from prosecution of law. Prosecution of law is the impartial application of legal standards to all similarly situated persons. The law functions as a constraint on all power equally. Persecution by law is the selective application of legal standards based on political alignment. The law functions not as a constraint on power but as an instrument deployed by the holders of power against those they oppose. The selectivity is what distinguishes the persecution from the prosecution.
The Castro indictment, examined in isolation, has the form of prosecution. The Castro indictment, examined in the context of the broader pattern in which the framework is not applied to American officials, is an instance of persecution. The selectivity matters for what the indictment actually accomplishes. The indictment does not enforce the framework. The indictment uses the framework as an instrument against a political adversary while the system that brings the indictment refuses to apply the framework to itself. The legal forms are deployed for political purposes. The framework is invoked when it serves political purposes and abandoned when it would constrain politically aligned actors.
This is not law in the meaningful sense. It is the use of legal forms to accomplish political purposes that the legal forms have been emptied of substance to permit. A legal system that applies its standards consistently has a claim to legitimacy that flows from the consistency. A legal system that applies its standards selectively cannot make this claim. Its persons cannot know what consequences their conduct will produce, because the consequences depend on factors extraneous to the conduct itself.
What the Analysis Does and Does Not Require
The analysis does not claim that the operations producing the killings were all morally equivalent. Some operations involved deliberate targeting of identifiable civilians. Other operations targeted what the executing parties characterized as military objectives and produced civilian deaths characterized as collateral damage. The moral distinctions between these categories are real. The legal framework that would have applied to each, if the operations had been conducted under properly declared wars, would have been different. The analysis does not require collapsing these distinctions.
What the analysis requires is recognizing that all of the operations, across all the categories, were conducted without the constitutional predicate that would have given them legitimacy as armed conflict. The doctrinal distinctions between deliberate targeting and collateral damage, between proportionality and necessity assessments, between command responsibility standards, all operate within the framework of properly declared armed conflict. When the framework has not been properly established, the doctrinal distinctions evaluate conduct that should not have been occurring at all. The conduct is killing without due process regardless of how the doctrinal distinctions would categorize it within an armed conflict framework that does not legitimately apply.
The analysis also does not mean that legitimate American military operations are impossible. The framework permits them. The conditions are specific. Congress can declare war. The executive can conduct genuine self-defense in narrow circumstances. The legal frameworks for legitimate operations exist and could be invoked. The contemporary practice has abandoned the framework. The contemporary practice could be reformed to align with the framework. The reform would require the political and institutional changes that have been substantially blocked by the coalitions that benefit from the current arrangement.
The Founders Would Have Recognized This
The founders would have recognized contemporary American military practice as exactly the pattern they warned against. The executive conducting extensive military operations without congressional authorization. The killing of persons identified as enemies without due process. The expansion of state lethal force into operations across the world without the constitutional procedures that should govern such operations. The transformation of the republic into the kind of state that conducts operations of empire while maintaining the institutional forms of republican government.
John Quincy Adams predicted this in his 1821 address. He warned that if the United States went abroad in search of monsters to destroy, the fundamental maxims of American policy would change from liberty to force. The United States would become the dictatress of the world but would no longer be the ruler of its own spirit. The transformation has occurred substantially in the way Adams predicted. The contemporary practice that produces killings without due process across the world is the operational form of the transformation.
Madison’s 1792 essay on property articulated the broader framework. The function of legitimate government is to impartially secure persons in their lives, liberties, and properties. Government that takes life selectively, that applies different standards to different persons based on political alignment or any other criterion extraneous to the conduct being judged, fails the principle in the most basic way that government can fail it. The principle of impartial security is what the contemporary American legal system has substantially abandoned. The Castro indictment, in the absence of analogous indictments against American officials, violates the principle on its face.
You cannot believe in liberty if you believe anyone can be killed without due process. The principle is universal. The principle does not have exceptions based on the political identity of the killed or the political alignment of the killer. The principle applies to all state actors who deprive persons of life. The principle requires either civilian due process or military due process within properly declared wars. The principle does not permit the contemporary practice that has substituted bureaucratic and political characterizations for the constitutional procedures the framework requires.
Conclusion
The Castro indictment is the latest instance of a pattern in which the American legal system selectively applies frameworks that the system has substantially abandoned in its own operations. The indictment is correct in characterizing the Brothers to the Rescue killings as murders by political authorization. The indictment is incorrect in its selectivity, because the framework that produces the correct characterization of the Brothers to the Rescue killings would also produce the characterization of many American operations as murders by political authorization, and the American legal system is not bringing those charges.
The recognition of the selectivity is the analytical work. The recognition does not change how the system operates. The recognition changes our capacity to evaluate the system’s actions accurately. Without the recognition, the Castro indictment appears as legitimate legal action against a foreign adversary. With the recognition, the indictment appears as one instance of selective application of a framework that the prosecuting authority refuses to apply to itself.
The founding framework is the framework that any analytical engagement with contemporary American military practice should employ. The framework is what the Constitution requires. The framework is what the founders understood as the principle that distinguishes legitimate government from tyranny. The framework has been substantially abandoned. The recognition of the abandonment is part of the broader project of seeing the contemporary American situation clearly.
The work of maintaining the framework continues even when the institutional environment has abandoned it. The framework was articulated in 1787 through 1791. The framework remains in the constitutional text. The framework can be recovered when political conditions permit. The maintenance of the framework in analytical and intellectual life is the precondition for any future recovery in operational life.
You cannot believe in liberty if you believe anyone can be killed without due process. The principle is correct. The framers held it. The contemporary American government has substantially abandoned it. The recognition of the abandonment is part of what serious thought about the contemporary situation requires. The continuation of the principle as a framework for analysis is part of what makes the eventual recovery of the principle in operational reality possible.
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