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.”