Holder’s arguments, made during a speech at Northwestern University School of Law, were the first public glimpse at the White House’s legal rationale for an act that it has already engaged in with the targeted killing of Anwar al-Awlaki last September and President Obama‘s White House serving as judge, jury, and executioner.
Critics are calling the president’s newly-assumed power unconstitutional, saying that it violates the Fifth Amendment right of all U.S. citizens to due process of law before they are deprived of life, liberty, or property for committing a crime. The attorney general’s response?
“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.”
So in other words, Eric Holder is saying that Anwar al-Awlaki got his due process. It just all happened secretly in the executive branch, only on the advice of an unelected panel of national security advisers whose existence and proper operating rules are not established by any legislature or overseen by any court. That’s the fascist-style “due process” that the nation’s attorney general is guaranteeing that you have as a U.S. citizen in Obama’s America. Even Bush’s demolition job of civil liberties never went so far.
Under Holder’s brand of due process, being a “senior operational leader of Al Qaeda or associated forces” means nothing more than simply being accused by the president of being a “senior operational leader of Al Qaeda or associated forces” without oversight, without transparency, and without the need to provide proof of the accusation or offer the accused the opportunity to defend themselves against it. This “due process” is nothing like that of a constitutional republic; it’s the kind of “due process” exercised by absolute monarchs. It would have been no hyperbole if headlines last week read, “Holder Crowns Obama King.”
While it should be clear to anyone left of Ghengis Khan that Holder’s due process is anything but, the argument against the White House’s chilling new precedent is even stronger. The Constitution does more than guarantee due process. It explicitly guarantees “judicial process.” Therefore, divorcing the two and claiming the former is still being provided by the White House does not satisfy the law. The law actually requires the latter as well. I was shocked to see this part of the Constitution neglected during the debate over Holder’s speech, even by Constitutional and civil rights lawyer-turned progressive blogger, Glenn Greenwald (whose column on this issue I cannot more highly recommend you read from top to bottom).
While the Fifth Amendment guarantees U.S. citizens due process of law, Article III, Section 3– subtitled Treason– specifically deals with U.S. citizens who wage open war on the United States or give comfort and aid to their enemies, and it guarantees them a judicial process. It says:
“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”
Not only does the Constitution guarantee a trial for those U.S. citizens accused of levying war against the United States, but it even requires either a confession by the accused or the testimony of two witnesses to the same overt act of treason in open Court in order to make a conviction. Furthermore, the punishment for treason is not to be decided by the White House and meted out from above via drone, but “The Congress shall have power to declare the Punishment” for it. See how all the other branches of government are involved in the process, and not just one? That’s how the government works in a free country.
As for the last clause that states “no Attainder of Treason shall work Corruption of Blood,” it makes the White House’s killing of Anwar al-Awlaki’s 16-year-old son two weeks after his father’s death tragically poetic. The teenager, a U.S. citizen born in Denver in 1995, was killed in a CIA drone strike in Yemen after he ran away from home to try to find his father. That last clause in Article III, Section 3 guarantees that the descendants of someone convicted of treason will not be held responsible for their family’s crime. It’s as if the Obama Administration was pathologically determined to uproot every single provision of the section in the Constitution pertaining to its actions in this case, leaving no clause unviolated, no law unbroken.
Not bad work for a Constitutional scholar and Nobel Peace Prize laureate.