Privacy SOS

Due process and the Constitution: goodbye to all that

Thank you, Steven Colbert for giving voice to what should be a collective sense of outrage at Attorney General Holder’s novel interpretation of constitutional due process being divorced from any judicial process when the government decides which Americans to assassinate.  

“Trial by jury, trial by fire, rock, paper, scissors, who cares! Due process just means there is a process you do!" said Colbert. "The current process is the President meets with his advisors and decides whom he should kill–and then he kills them."

OK, so the Administration says it is perfectly constitutional to kill Americans abroad who have never been charged with any crime. How about at home?

Surely this is a no brainer – after all, the Fifth Amendment spells out in detail the judicial process required for a “capital, or otherwise infamous crime.”  

FBI director Robert Mueller, for one, wasn’t sure. When he was asked by Rep. Tom Graves (R-GA) whether the same rules applied to Americans within the US he did not say (indignantly) ‘Of course not!’ Instead, he hemmed and hedged and finally replied, “I’m going to defer that to others in the Department of Justice.” 

That’s the same Justice Department that is refusing to release any legal memoranda underpinning its justification for so-called “targeted killings” – a term that is to “assassination” as “enhanced interrogation techniques” is to “torture” (SAT analogy material perhaps?)  

In fact, it has not quite admitted that such a legal memo even exists – a matter that led to a jovial exchange of chuckles between Judiciary Committee chair Patrick Leahy (D-VT) and the Attorney General, according to the New York Times Charlie Savage. 

Of course, we are not supposed to look backward, just forward. But surely a little reflection is in order.  

On his first day in office President Obama, once a constitutional scholar, announced that he was signing an executive order committing his Administration to “an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation and collaboration. Openness will strengthen our democracy.” 

Not only that.  Declaring that “Americans deserve a government that operates with transparency and openness,” Attorney General Eric Holder on March 2, 2009 declassified nine Justice Department legal memos penned by John Yoo when he was deputy attorney general in the Bush Administration’s Office of Legal Counsel.  

They gave the Bush White House the power to override First Amendment freedoms (including the freedom of the press), to allow the imposition for martial law, to disregard a federal law banning torture, to hand over prisoners to countries where they could be tortured, to set up roadblocks and deploy high-tech surveillance against US citizens. They also gave a ‘legal’ justification for deploying the military within the US on ‘anti-terrorist operations,’ giving it the green light to attack apartment buildings and office complexes where terrorists were suspected to be.

The memos were released after being sought in a lawsuit filed by lawyers for Jose Padilla, a US citizen held for years within the US as an ‘enemy combatant.’ On the same day, the Attorney General revealed that the CIA had destroyed 92 videotapes of interrogations.

That seems now like ancient history. In just three years the Obama Administration has sent the CIA on an expanded killing spree, slammed the door on openness in government and adopted, in the words of George Washington University law professor Jonathan Turley, “a model of an imperial presidency that would have made Richard Nixon blush.” 

Where’s the outrage?

© 2021 ACLU of Massachusetts.