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View Diary: Open thread for night owls: Wheeler—Closing Gitmo is not enough (49 comments)

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  •  Obama Makes Slow Progress (6+ / 0-)

    I read the transcript of this speech, and it looks like President Obama is making some motion toward addressing the Bush dictatorship (which should have landed President Bush in jail, along with a bunch of his pals). But he has a long way to go, and we have to help him.

    By help him I don't mean blindly supporting his proposals. I mean taking this opportunity to put this issue on the front page and keep it there until it is resolved.

    The trouble is that he misses some of the key points. The President says,

    Anwar Awlaki ... was continuously trying to kill people.  He helped oversee the 2010 plot to detonate explosive devices on two U.S.-bound cargo planes.  He was involved in planning to blow up an airliner in 2009.  When Farouk Abdulmutallab — the Christmas Day bomber — went to Yemen in 2009, Awlaki hosted him, approved his suicide operation, helped him tape a martyrdom video to be shown after the attack, and his last instructions were to blow up the airplane when it was over American soil.  I would have detained and prosecuted Awlaki if we captured him before he carried out a plot, but we couldn’t.
    We don't know any of this. These are all assertions by the administration, but without actual proof of any kind. It's not as if the government never lies to us. So, we don't know these things, and we don't know it because Awlaki was never put on trial, even by the secret FISA court.

    This isn't just an academic argument. Western civilization has developed standards of proof because there is a fundamental question of legitimacy: How do we know-- with enough confidence--the accused is guilty and it is legitimate to use the power of government to take away their rights, to go so far as to kill them?

    And, as a practical matter, how does the public know this? How does the public know that their government is making the right decision? Not having that confidence undermines the legitimacy of the decision.

    That's at least one reason we have trials. Trials give us confidence that the government is making the right decisions. We can be confident in our knowledge because we expect that:

    (1) One independent power within the government will prove to another independent power
    (2) Through presentation of facts and rational argument
    (3) Subject to competent rebuttal by the accused or someone representing them
    (4) That they've done something that rises to the standard of a crime.

    It isn't necessary that the independent powers be the executive and the judiciary. That's the normal course. But what we need to see is that they have independent chains of command back to the sovereign--the people of the United States.

    This is what was so troubling about Eric Holder's declaration that "due process isn't judicial process". It misses the entire point of why we have "the process". The process is there to provide knowledge. And it has to do that in a way that the public deems satisfying.

    The drone strikes fail this simple western standard of proof. No matter how you slice it, there was never an attempt, even in secret, to follow this unimpeachable procedure.

    The idea of a drone court at least makes an effort to return to the standard. But what about the FISA court itself? Right before Obama took office (and with the complicity of his vote) Congress removed the requirement that the FISA court pre-approve wiretaps.

    We need to demand restoration of full democracy. As I pointed out before, we are rapidly losing every meaningful right guaranteed by the Constitution. This is at least an opening to move things in the other direction. We need to respond forcefully by demanding Congress follow up on what the President alluded to today.

    •  What does Holder mean when he makes a distinction (2+ / 0-)
      Recommended by:
      JeffW, Liberal Thinking

      Eric Holder's declaration that "due process isn't judicial process"
      ianal but what other process could he be referring to if indeed he's talking about making a judgment about difference.


       Because I've taken extrajudicial to mean outside of normal legal proceeding  (iow's NO normal court process at all) and isn't that the core of the problem?

      Seems like it to me

      •  There's such a thing as administrative due process (2+ / 0-)
        Recommended by:
        Eric Nelson, Liberal Thinking

        The due process in certain situations may not require a hearing.  If it requires a hearing, that hearing may not necessarily have to be a judicial hearing.

        The argument here is that using drone strikes on suspected terrorists outside the US is analogous to using drone strikes on enemy solders from a country at war with us, and the due process in that case does not require a judicial hearing to approve every military action.

        •  Yes (0+ / 0-)

          This is why I think they should move all drone strikes to the military and why Congress should establish the geographical limits to the war zones. By doing that, they move the program from the status of an illegal loose cannon to a much more defensible position. It comes back under control of the American people.

          I got the strong impression from the speech that the Administration views it this way. The President made a distinction between the tribal areas of Pakistan, where "the writ of the Pakistani government" doesn't apply and other areas where we can expect the relevant government to apprehend and turn over people we show are trying to harm the U.S.

          We ought to follow up on this concept. We need to get some bounds on where the government can secretly operate a drone and use it to kill people (whether our citizens or not). Or, as I say here, no bombing Colorado, okay?

      •  It's a Legal Argument (1+ / 0-)
        Recommended by:
        Eric Nelson

        In essence, Holder's argument is that you don't have to have a court hearing before killing these people because what the Administration is doing is "due process". The Constitution doesn't call for a court trial in criminal cases (probably because the founders never expected the government to act so blatantly as to kill people without a trial). It puts limits on trials that do occur.

        Their argument is that their deliberations within the executive branch (and now they've thrown in consultation with Congress in that they inform the relevant committees) constitutes due process. I assume they mean that it protects the rights of the accused, in the sense that they only take action when they believe the person is planning something that will cause immediate harm to our country.

        The problem with this argument is that it doesn't provide "knowledge". No matter how convinced someone is that they've got it right they can make mistakes. It's the process of proving this to an independent party that gives you the necessary degree of certainty.

        Establishing the truth through this process is important because, (1) you get it right (in cases where you otherwise wouldn't), (2) you maintain the legal rights of the accused (which are our rights, BTW, the rights of us as humans), and (3) you provide legitimacy to whatever actions you then take. For example, when the Bush Administration put people in Guantanamo prison and kept them there without trial, they were violating our rights and the public rightly called into question the legitimacy of what they were doing.

        You don't have to have the judicial branch involved in every decision in order to get due process. For example, in the impeachment process you have the House acting as the prosecutor and the Senate as the independent party hearing the case. Each of these houses has an independent chain of command back to the people. We elect representatives in each house independently. So, in a technical sense, "due process isn't judicial process". But, come on, Holder! What are you, a lawyer?

        We need to think about the principles involved. Western civilization has developed standards for determining guilt and assessing crime. When you bypass some part of that, which is what they've been doing with drone strikes and other parts of the Bush dictatorship, you give up legitimacy and you increase the risk of getting it wrong.

    •  great comment (2+ / 0-)
      Recommended by:
      JeffW, Liberal Thinking

      summarizes the issues

      if the citizens realized this, many things would change quickly

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