'Due Process' vs. 'Judicial Process'

By Ta-Nehisi Coates
In explaining the administration's reasoning behind assassinating Anwar Al-Awlaki, Eric Holder recently told a group of Northwestern law students the following:

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.
Hair-splitting aside, you always know you're in a field when the argument begins "some have argued." Either way, this is thin. Holder is basically asserting that due process is what we say it is, but we'll decline to tell you what -- specifically -- "it" is.

From Emily Bazelon:

If you want to believe that the government does its grim best to fight terrorists, and you're inclined to think that their dirty tactics justify some ruthlessness on our part, then maybe a few killings of bad guys in faraway lands doesn't bother you much. But there are a couple of unsettling implications here that are so obvious that it's amazing Holder thinks he need not address them. 

The first is that if the Obama administration claims this kind of extra-judicial power for a few cases, what's to stop the next president from expanding upon it--and citing this step as precedent for taking others that Obama wouldn't countenance? 

And the second is that when the executive branch won't release the legal memos that underlie its decision-making, we're blocked from evaluating how strong or weak the arguments are. When the federal government takes a bold and new step like this, testing the boundaries of the Constitution, it's crucial for Holder and his lawyers to explain how and why. Instead, we're being asked to take the wisdom of the president and his national security apparatus for granted. 

That's a precedent that the Bush administration set in the bad old days of Attorney General John Ashcroft. It was this Department of Justice that produced John Yoo's legal memos approving waterboarding and other interrogation techniques that amount to torture, the finding that the Guantanamo detainees weren't prisoners of war protected by the Geneva conventions, and approved of warrantless wiretapping. 

Yoo's legal innovations were dizzying--to put it kindly--and the leaking of his memos in 2004 was the first step toward official Department of Justice repudiation of them. Maybe the Obama administration is standing on more solid legal ground with its targeted assassinations, and maybe not. The point is that this is the fully informed conversation worth having, not the skeleton version Holder is now offering.

Right. The point is, absent any actual information, we are left with "trust us." This is a bad standard, and is almost certain to be abused. As Emily points out, even if you trust Barack Obama with this power--and you should not--why would trust anyone after him? Why would you trust Rick Santorum with power to kill people without anyone, anywhere, at any time? 

This article available online at:

http://www.theatlantic.com/national/archive/2012/03/due-process-vs-judicial-process/254123/