On March Fifth, President Obama's Attorney General Eric Holder presented a speech at Northwestern University to explain President Obama's approach to targeted assassinations and legal justification for them, including a retroactive justification of the assassination of US citizen Anwar Al-Awlaki.
In the speech, Holder articulated a new standard of due process that President Obama is relying on as a basis for his actions:
Some have argued 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. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.Unfortunately, Mr. Holder did not present any evidence that the process that the administration is providing meets any particular standard other than the "trust us on this" standard.
What does "due process" mean to you? For me it brings to mind things like proper notice of a legal action to be taken against you and the grounds for the action, the right to challenge that action before an unbiased judge and/or jury of your peers, the right to present evidence, the right to know what evidence is being used against you, the right to face and cross-examine adverse witnesses, the opportunity to be represented by counsel, the opportunity to appeal an adverse ruling... American citizens generally have some ideas about what due process is and these sorts of basic ideas about what due process is do not appear to have much in common with Mr. Obama's new "due process."
According to a Reuters report by Mark Hosenball, this is how Mr. Obama's new "due process" works:
American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.Holder asserts that because the administration notifies "the appropriate members of Congress" (doubtless retrospectively) about the administration's actions in order to fill their oversight function, that is a key part of creating a substitute for a full proper process that includes the rightful role of the judicial branch:
There is no public record of the operations or decisions of the panel, which is a subset of the White House's National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate. ...
Several officials said that when Awlaki became the first American put on the target list, Obama was not required personally to approve the targeting of a person. But one official said Obama would be notified of the principals' decision. If he objected, the decision would be nullified, the official said.
A former official said one of the reasons for making senior officials principally responsible for nominating Americans for the target list was to "protect" the president.
That is not to say that the Executive Branch has – or should ever have – the ability to target any such individuals without robust oversight. Which is why, in keeping with the law and our constitutional system of checks and balances, the Executive Branch regularly informs the appropriate members of Congress about our counterterrorism activities, including the legal framework, and would of course follow the same practice where lethal force is used against United States citizens.
In attempting to retrospectively justify the administration's assassination of Anwar Al-Awlaki, Holder (sounding an awful lot like John Yoo) asserts (without providing evidence) that Al-Awlaki was a "senior operational leader of a foreign terrorist organization" which allegedly justifies the assassination:
The conduct and management of national security operations are core functions of the Executive Branch, as courts have recognized throughout our history. Military and civilian officials must often make real-time decisions that balance the need to act, the existence of alternative options, the possibility of collateral damage, and other judgments – all of which depend on expertise and immediate access to information that only the Executive Branch may possess in real time. The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen.Emptywheel presents an excellent analysis demonstrating that the statements that Holder provides to support his claim that Al-Awlaki was a senior operational leader of al-Qaeda are insubstantial, embroidered and conflict with other evidence that DOJ provided last month. It's worth a read.
I never thought that I'd miss the days when George W. Bush was president and Democrats had more firm ideas of what due process meant. I seem to remember a lot of hoopla among Democrats about the victory in Hamdi v. Rumsfeld. Democrats thought that it was a good thing that the Supreme Court smacked down Mr. Bush's abuse of executive power in detaining administration designated "enemy combatants" without appropriate due process.
If you have forgotten what Hamdi vs Rumsfeld was all about click the link, but here's the important part:
The Bush administration claimed that because Hamdi was caught in arms against the U.S., he could be properly detained as an enemy combatant, without any oversight of presidential decision making, or without access to an attorney or the court system. The administration argued that this power was constitutional and necessary to effectively fight the War on Terror, declared by the Congress of the United States in the Authorization for Use of Military Force Act passed after the September 11th terrorist attacks.The Supreme Court overwhelmingly confirmed the rights of US citizens to proper due process rights and corrected the Bush administration's ridiculous assertion that its war powers and the pressing needs of national security meant that the executive branch processes could replace the role of the judicial branch.
Here are some of Justice O'Connors greatest hits in the Hamdi v. Rumsfeld opinion:
We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. See Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985) (“An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case’ ” (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)); Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U.S. 602, 617 (1993) (“due process requires a ‘neutral and detached judge in the first instance’ ” (quoting Ward v. Monroeville, 409 U.S. 57, 61—62 (1972)). “For more than a century the central meaning of procedural due process has been clear: ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.’ It is equally fundamental that the right to notice and an opportunity to be heard ‘must be granted at a meaningful time and in a meaningful manner.’ ” Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quoting Baldwin v. Hale, 1 Wall. 223, 233 (1864); Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (other citations omitted)). These essential constitutional promises may not be eroded.2004 was a great time when Democrats rallied around the principle of due process for US citizens when an overreaching executive branch tried to cut the other branches out of their role while screaming about national security and the imminence of further attacks. How Democrats will react now when another overreaching executive branch is using the same tactics not just to detain US citizens without proper process but to assassinate citizens without proper process remains to be seen. Will Democrats fail to rise to the occasion because the overreaching executive branch baying about national security and the imminence of further attacks is a Democratic administration? One would hope that progressives would stand by their principles and call on this administration to respect the law.
In so holding, we necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Sheet & Tube, 343 U.S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. Mistretta v. United States, 488 U.S. 361, 380 (1989) (it was “the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty”); Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 426 (1934) (The war power “is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties”).
A final note... a couple of days ago I posted a diary that detailed one of the Obama administration's creative interpretations of laws to quell speech and speculated as to whether a bill awaiting Obama's signature might be used similarly. In the comments several lawyers, including the Daily Kos site's official lawyer Adam B went to some effort to explain that the statutory interpretations that were presented by a couple of other lawyers in the diary were indeed incorrect. (Thanks for your efforts at education, Adam B.) Unfortunately, they missed a key point of the diary. Lawyers frequently disagree over statutory interpretation (heck, they get paid to disagree) but what is of great importance is not whether one group of lawyers is correct about an interpretation or not. Often what is important is how close to executive power a lawyer or group of lawyers is and how much damage is done by incorrect statutory interpretations while the executive branch works the levers of power to enforce poor interpretations of law and uses whatever legal trickery they can arrange to avoid review by the judicial branch. We all knew that John Yoo and several of his legal colleagues in the Bush administration were promoting preposterous legal interpretations, but it took a considerable amount of time for the actions of the Bush administration based upon them to come to light and even longer for them to work their way through the system to be challenged and repudiated.
We cannot allow any administration to promote bad policy based upon twisted interpretations of law. If they are allowed to twist the meaning of something as basic as "due process" to support assassinating American citizens, who knows what might come next, if not by this administration, by a successor administration?