Thursday, March 8, 2012

Targeted Killings And The Death Of Due Process

Attorney General Eric Holder's speech on Monday sought to explain and justify our government's policy of secretly targeting American citizens for assassination:
Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack. In that case, our government has the clear authority to defend the United States with lethal force.
 Charlie Savage wrote in The New York Times that "it was notable for the nation’s top law enforcement official to declare that it is constitutional for the government to kill citizens without any judicial review under certain circumstances."   Notable indeed.

Holder rejected the notion that "the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of Al Qaeda or associated forces.”  He contended that "'due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security."  According to Holder, "the Constitution guarantees due process, not judicial process.”

I better go polish off my old law books because I sure don't remember that distinction when I was in law school.  How can Holder seriously argue that a citizen of this country can be killed as long as the government thinks he or she is a threat and the President gives approval in secrecy -- without charging them with a crime, notifying them of the government's case or providing any opportunity to defend themselves?

Eric Holder says, "this is an indicator of our times, not a departure from our laws and our values."  I agree instead with Charles Pierce, who says, this "is a monumental pile of crap that should embarrass every Democrat who ever said an unkind word about John Yoo. This policy is a vast departure from our laws and an interplanetary probe away from our values."

The ACLU, which has doggedly but unsuccessfully, so far, attempted to get information about the targeted killing program from the Justice Department and CIA through a Freedom of Information Act lawsuit (click here for petition urging release of secret memos), had this to say about Holder's speech:
While the speech is a gesture towards additional transparency, it is ultimately a defense of the government’s chillingly broad claimed authority to conduct targeted killings of civilians, including American citizens, far from any battlefield without judicial review or public scrutiny.  Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact.
With all the deserved condemnation heaped on the Bush Administration for its expansion of Executive branch powers in the service of the War on Terror, its warrantless wiretapping and extraordinary rendition, it is striking how muted the criticism is of Obama.  As Glenn Greenwald writes:
How can anyone who vocally decried Bush’s mere eavesdropping and detention powers without judicial review possibly justify Obama’s executions without judicial review? How can the former (far more mild powers) have been such an assault on Everything We Stand For while the latter is a tolerable and acceptable assertion of war powers?"
It is hard to disagree with Greenwald's assessment "that the same Party and political faction that endlessly shrieked about Bush’s eavesdropping and detention programs now tolerate Obama’s execution program is one of the most extreme and craven acts of dishonesty we’ve seen in quite some time."

And, as the ACLU points out, "anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power."

What would President Romney do?

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