Due process sure ain’t what it used to be

| March 6, 2012 | 4 Replies

Attorney General Eric Holder gave a speech this week, a speech which is the only known public justification for the administration’s policy of assassinations of American citizens.  The speech may be read in its entirety here.   The real justifications are too secret to tell you about, so Holder had to summarize the complex legal arguments and distill them down to their legal essence.

For those of you who don’t have the time to read the whole speech, allow me to distill the arguments further.  Holder’s weighty legal analysis boils down to this: “we can do whatever we want, and nobody can tell us otherwise.”

Here’s the “due process” money quote from Holder’s speech:

“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.

Due process is what I say it is. Image via Wikipedia (commons).

The due process to which Holder is referring is that granted by the 5th Amendment to the Constitution.  If your Bill of Rights are a bit fuzzy, here’s the relevant portion of text: “No person shall. . . be deprived of life, liberty, or property, without due process of law.”  But Holder has to spin that last bit, because avoiding due process of law is exactly what this whole thing is about.  When the state decides to kill someone, after affording them due process, it’s termed an “execution.”  That should be distinct in your mind from an “assassination”, which is what Holder, Obama, et al. are asserting the right to do when they fire missiles from a drone to murder an American citizen and whomever else is nearby without a shred of evidence or due process.

Thought experiment: imagine that America were conquered by our worst enemies: terrorists!  (Obligatory “GASP!”).  Suppose our new terrorist overlords announced a package of sweeping reforms intended to destroy the freedom and soul of the American people.

Firstly, they would want to be able to keep track of dissidents and others who might wish to challenge their power.  They might implement some system in which all of your telephone communication, web traffic,  emails, etc.. . are searched for evidence of disloyalty. They might use any of the information gleaned to build dossiers on you.  Their sophisticated super-computers may even be able to predict what you may do in the future.  You may be arrested for actions which you have not even taken, similar to the concept of “pre-crime” from the Tom Cruise movie Minority Report.  They might create new laws in secret, or interpret laws in new and secret ways.  Such measures are pure intimidation, of course, but what else can we expect from terrorists?  They might attempt to develop software or other systems capable of tracking one’s every move, or of reviewing every purchase one might make.

Second, these dastardly conquerors might assert that their powers are out of reach of any type of oversight, including by a court system.  Their word is law, so we may as well dispense with the legal charade.  Whenever a pretense of impartiality is desired, they may trot out military tribunals or other sorts of show trials.

Third, to keep their hands on the reins of power, they might assert the right to have anyone killed, at any time, and in any place.  This is, in fact, a terrorist policy.  Imagine how you might feel once you realize that any of your neighbors, or even yourself, may not be there tomorrow.  Remember, there is no court to which you may appeal.  Perhaps some sort of covert star chamber will be convened which will decide who merits execution, but all of the information that secret group has is utterly classified, nobody may know if there is any actual evidence or not.

Even if they decide not to kill you, they might disappear you or your loved ones into an eternal prison sentence, never to be heard from again.  They might euphemistically call such a thing “indefinite detention”, but everyone would know what it really was.

To enforce all of this, some sort of giant police bureaucracy would have to be implemented.  It would have to be integrated at all levels in order to be effective.  It would probably function much the same was as the Stasi did, operating mostly in secret and without bothering to justify its actions much at all.  It might attempt to lure those unhappy with the new regime in with plots aimed at attacking our new overlords, but since factions of the secret police are running the plots, it would be a simple matter to stop them before they do any damage.  Such plots against the terrorist overlords would also provide a handy justification for the secret police’s own existence.

Of course, freedom of the press would have to be severely curtailed.  Perhaps arresting and intimidating journalists would serve to keep most of them in line, but there’s also your kangaroo courts or trumped-up charges for the recalcitrant.  The secret police organization would likely maintain a network of informants and spin masters at news organizations in order to influence the news in ways favorable to the regime. The terrorist regime would probably also restrict access to the independent media, choosing instead to create their own propaganda stories and spin.

Lastly, they would probably take all of these actions while mouthing justifications (purely for public-relations purposes, of course) about how it is for our own good, or that such measures are necessary in our wartime environment. Perhaps a general state of emergency would be declared, which would serve to keep everyone in a frightened state while simultaneously allowing these terrorist masterminds to assert new levels of authority.

Perhaps I’ve tipped my hand, and clever readers will already understand where I’m leading them.  This is the America we live in.  It’s not the America that we once knew,  it’s a new, oppressive, and totalitarian place in which to live.  Below, I’m reproducing the several paragraphs about life under a totalitarian terrorist regime from above, but adding hyperlinks to stories about those exact things occurring in America today.

Firstly, they would want to be able to keep track of dissidents and others who might wish to challenge their power.  They might implement some system in which all of your communication, web traffic,  emails, etc.. . are searched for evidence of disloyalty. They might use any of the information gleaned to build dossiers on you.  Their sophisticated super-computers may even be able to predict what you may do in the future.  You may be arrested for actions which you have not even taken, similar to the concept of “pre-crime” from the Tom Cruise movie Minority Report (see also here and here).  They might create new laws in secret, or interpret laws in new and secret ways.  Such measures are pure intimidation, of course, but what else can we expect from terrorists?  They might attempt to develop software or other systems capable of tracking one’s every move, or of reviewing every purchase one might make.

Second, these dastardly conquerors might assert that their powers are out of reach of any type of oversight, including by a court system.  Their word is law, so we may as well dispense with the legal charade.  Whenever a pretense of impartiality is desired, they may trot out military tribunals or other sorts of show trials.

Third, to keep their hands on the reins of power, they might assert the right to have anyone killed, at any time, and in any place.  This is, in fact, a terrorist policy.  Imagine how you might feel once you realize that any of your neighbors, or even yourself, may not be there tomorrow.  Remember, there is no court to which you may appeal.  Perhaps some sort of covert star chamber will be convened which will decide who merits assassination, but all of the information that secret group has is utterly secret, nobody may know if there is any actual evidence or not.

Even if they decide not to kill you, they might disappear you or your loved ones into an eternal prison sentence, never to be heard from again.  They might euphemistically call such a thing “indefinite detention”, but everyone would know what it really was (see here also).

To enforce all of this, some sort of giant police bureaucracy would have to be implemented.  It would have to be integrated at all levels in order to be effective.  It would probably function much the same was as the Stasi did, operating mostly in secret and without bothering to justify its actions much at all.  It might attempt to lure those unhappy with the new regime with plots aimed at attacking our new overlords, but since factions of the secret police are running the plots, it would be a simple matter to stop them before they do any damage.  Such plots against the terrorist overlords would also provide a handy justification for the secret police’s own existence.

Of course, freedom of the press would have to be severely curtailed.  Perhaps arresting and intimidating journalists would serve to keep most of them in line, but there’s also your kangaroo courts or trumped-up charges for the recalcitrant.  The secret police organization would likely maintain a network of informants and spin masters at news organizations in order to influence the news in ways favorable to the regime. The terrorist regime would probably also restrict access to the independent media, choosing instead to create their own propaganda stories and spin.

Lastly, they would probably take all of these actions while mouthing justifications (purely for public-relations purposes, of course) about how it is for our own good, or that such measures are necessary in our wartime environment. Perhaps a general state of emergency would be declared, which would serve to keep everyone in a frightened state while simultaneously allowing these terrorist masterminds to assert new levels of authority.

Don’t worry though, I’m sure it’s only for the duration of the war on terror. Once we defeat that abstract emotion with our vast military might we should be in for smooth sailing.

Holder justifies the trillions of dollars spent, thousands of lives lost, and disappearing civil liberties thusly:

“…our nation today confronts grave national security threats that demand our constant attention and steadfast commitment. It is clear that, once again, we have reached an “hour of danger.”

We are a nation at war. And, in this war, we face a nimble and determined enemy that cannot be underestimated.

He might actually be telling the literal truth:  it’s impossible to underestimate the strength of al-Qaeda.  That is, there are so few of them left that their capacity to inflict damage is almost nil.  Even administration officials agree that we’re talking less than two dozen of these bogeymen left.    There’s so few of them, we haven’t even been able to find one to kill in Afghanistan for almost a year.

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Category: Current Events, Media, Orwellian, Secrecy

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is a full-time wage slave and part-time philosopher, writing and living just outside Omaha with his lovely wife and two feline roommates.

Comments (4)

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  1. Adam Herman says:

    I’m not really sure they even need a legal justification. If an American has publicly joined Al Qaeda and are currently engaged in making war on America, they are belligerents and subject to military action. If a right-wing militia took up arms and started doing guerilla attacks on US military bases, they would be taken out the same way.

    To me, the bigger problem is that many well-meaning Americans are allowing Al Qaeda to benefit from breaking the laws of war.

  2. Brynn Jacobs says:

    Adam-

    Thanks for your comments.

    Beyond the specifics in this instance, let’s look at the principles involved. We are a nation that presumably stands for the rule of law. No man should be above the law, at least in our idealized version of the way the system should work. Yet here we have the president asserting the authority to kill a citizen of this country, with no oversight or appeal possible. He justifies his decision with no evidence at all, simply his assertion that the man is a terrorist. Doesn’t that strike you as a dangerous precedent to set?

    So are we a nation of laws, with even our government subject to those laws? Or should we declare ourselves a democratic empire, with the leader chosen by democratic means but with dictatorial powers vested in him once he attains the rank of president?

    I’m confused what you mean in your last sentence, can you clarify?

  3. Adam Herman says:

    I agree that there should be laws governing this. However, Americans have joined the other side and been killed in military action before. This war is not unique, nearly every war has had people do that, and America being the melting pot it is, anytime we go to war with a nation there will be a few former citizens of that nation who will join up to fight us. It was just assumed that they were belligerents who had given up all their rights of citizenship even if they hadn’t formally done so and they were considered to be on the other side(which they were).

    It’s one of those powers that the President has had that could be horribly abused, but for whatever reason it hasn’t yet. Which is why Congress has seen no urgency to pass laws governing when the President may assassinate US citizens.

    My last comment was simply that Al Qaeda and the Taliban violate the laws of warfare by making it impossible to distinguish between fighters and civilians. They seek to confuse people into giving them special privileges which would not be available to them if they wore a uniform and carried arms openly. When we took out Admiral Yamamoto, was that an assassination, or was it legitimate combat operations? It was pretty obvious, since he wore the uniform and was in fact the head of the Japanese navy. But doing the same thing to high level al qaeda members is viewed by many as an assassination even though they are also clearly belligerents under the laws of war.

  4. Erich Vieth says:

    Brynn:

    I would paraphrase Holder’s speech a bit differently:

    Terrorist . . . plots . . . [blah blah blah] . . . foreign intelligence . . . [blah blah blah] . . . our hour of danger . . . distant countries . . . murder Americans . . . [blah blah blah] . . . analysts . . . surveillance . . . lethal . . . al Qaeda . . . [blah blah blah] . . . capture . . . attacks . . . war . . . threat . . . collateral damage . . . safer . . . sacred . . . beacon . . . America. . . We can do whatever we want, and nobody can tell us otherwise.

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