There’s a sense in which it’s good that Attorney General Eric Holder explained today why the government has decided it has the power to kill American citizens suspected of being terrorists without judicial review. There’s value in the government making these arguments explicit.
That is the only positive thing anyone who cares even slightly about liberty can say about this speech. Responding to the Fifth Amendment’s fundamental stipulation that the government must provide due process of law before depriving a citizen of life, liberty or property, Holder comes up with a legal novelty: a Hellfire missile is due process of law.
No, really. “‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security,” Holder contended. “The Constitution guarantees due process, not judicial process.” So the government comes up with its own, internal process to judge whether to kill someone it considers a threat, and considers it sufficient.
I’m not a lawyer. But consider the extremism of that statement. The lawyers say there is no right without a remedy. There is no remedy for a drone strike. Now consider the extremism of the implications of that argument: the government is claiming the right to decide, unilaterally, what counts as due process of law for an execution of a U.S. citizen. Oh, and the government is also unilaterally deciding what amounts to evidence that someone poses a sufficient threat to merit killing; and unilaterally deciding that non-lethal measures will fail. Holder says this only applies to U.S. citizens when they’re overseas; I don’t understand, from the logic of his argument, why that should be.
If you were to tell me any of this applies a non-U.S. person who is a member of al-Qaida, I wouldn’t have as great a problem with it. But a U.S. citizen is a much, much different category of individual. (So maybe a more accurate thing to say is that I would give the government a greater benefit of doubt for killing a non-U.S. person: if the government kills, say, non-American children in the name of fighting al-Qaida, I would obviously have a problem with that; there are surely other cases I’m not immediately thinking of as well.) The Constitution creates unique privileges for citizenship. Violating the most fundamental of those privileges, the right for the government not to kill you without an opportunity to contest the case against you, is the most profound act the government can take. It simply must require more protections for a citizen’s rights than the blithe, trust-us assurances that Eric Holder provided.
I have a fuller wrap at Danger Room that I’m trying not to recapitulate here. But I’m going to borrow one quote from it, since it’s from a U.S. senator.
“The government should explain exactly how much evidence the president needs in order to decide that a particular American is part of a terrorist group,” says Sen. Ron Wyden, an Oregon Democrat who sits on the Senate’s intelligence committee. “It is also unclear to me whether individual Americans must be given the opportunity to surrender before lethal force is used against them. And I’m particularly concerned that the geographic boundaries of this authority have not been clearly laid out. And based on what I’ve heard so far, I can’t tell whether or not the Justice Department’s legal arguments would allow the President to order intelligence agencies to kill an American inside the United States.”
Also be sure to read Adam Serwer and Marcy Wheeler, who provide typically excellent analysis.
2012.03.05
The word “citizen” does not appear in the 5th amendment. You should read it. General Grant’s army executed 10s of thousands of US citizens without judicial process – because the 5th amendment does not confer rights on an enemy soldier. Being a US citizen does not protect you from US military action if you take up arms against the United States. We live in a country where poor people are being sent effectively to debtors prison and the big scandal among the “progressives” is that some violent misogynistic religious fanatic who took up arms against the USA died in war. This is really ridiculous.
2012.03.06
Being a US citizen doesn’t protect you from the electric chair either, if it’s proved in a court of law that you murdered someone. The point is that the government first has to prove that they are electrocuting the right person!
Maybe drone strikes would be justified against “misogynistic religious fanatic[s] who took up arms against the USA” and maybe they wouldn’t. But where is the process to make sure that only the “right” people get killed? If there is no process, or a bad process, mistakes & abuses are inevitable. This is not a small problem.
2012.03.05
And the progressives thought the Bush Administration was radical in its denial of foreign terrorists and enemy combatants criminal “due process”.
Where is the outrage from the left? From the media?
Oh, the current administration has the “right intentions” and party affiliation.
2012.03.05
As an American who spent 16 years of my life overseas, this bothers me A LOT!
2012.03.05
You are SO right. You are not a lawyer.
I read the whole speech and he paints a pretty thorough distinction between due process and judicial process. When I thought about it for about, oh, at least a few seconds, it made sense that there were circumstances (such as pointing a loaded gun at another person) that would create a distinction between due process and judicial process.
I’m not being sarcastic and hostile because I disagree with your basic premise that there is government overreach occurring here. I’m being hostile and sarcastic because you took the quotation out of context, grossly oversimplified both the concept and the speech as a whole, and ignored the fact that he repeatedly cites Supreme Court precedent. Which means it isn’t unilateral, nor even unilateral unilateral unilateral.
I think there is a point here to be argued or articulated against Holder’s position, but I also think you are doing a weak job of it. Cheerio.
2012.03.05
“If you were to tell me any of this applies a non-U.S. person who is a member of al-Qaida, I wouldn’t have as great a problem with it”
Cool. No need for anything annoying like proof. The
PresidentEmperor can simply declare a person to be a member of al-Qaida based on secret evidence that he refuses to share, and so long as the person in question isn’t a US Citizen, you’re fine with the remote-controlled immolation of that person and any other people unfortunate enough to be located nearby. Oh, as long as those other people aren’t children. Wow.2012.03.07
I does not matter what the INTENTION of a law is, not at all! What matters is the use its put to. Today its used to stop terrorists but it will prove very usefull for many other things over time, like stopping political rivals, stopping criminal investigations stopping business compeditors and silencing any form of critisism. If I hand someone a gun who claims its for self protection they are still free to use it for any perpose including murder robbery kidnaping, anything. Claimed intention has no bearing what so ever, you must assume the worst. A heroin addict may claim its for medical use, and a first it might be but we all know what will happen given the wrong person and enough time.
2012.03.08
Holder is a creep. The argument that the AUMF does not and should not make distinction between citizens and non-citizens holds water….. there has been a very clear process of authorization
and judicial pre-approval is no more a requirement here than it was prior to firing musket balls into Confederate encampments in Georgia