The right to due process

I disagree with Rand Paul about many things, but his filibuster this month of John Brennan’s nomination as CIA director deserves applause. The senators who did not stand by his side ought to be deeply ashamed, because they have failed in their most important task: defending the rights of citizens.

Paul chose to filibuster Brennan’s nomination because of his links to the strategy of using drones to assassinate terror suspects with Hellfire missiles — a tactic that has become the hallmark of President Barack Obama’s foreign policy. Paul, and some other senators like Ron Wyden, have used the occasion of Brennan’s nomination hearings to raise important questions about the drone program and, in particular, the use of drones against U.S. citizens.

The government has acknowledged the killing of two U.S. citizens in drone strikes so far: Anwar al-Aulaqi and his 16-year old son Abdulrahman.

Anwar al-Aulaqi, born in New Mexico, was an Al Qaeda recruiter, and there is some evidence that he was involved in planning terror attacks. He was killed by a CIA drone strike in Yemen in 2011.

Abdulrahman al-Aulaqi, born in Colorado, was apparently eating in the same restaurant as a senior operative associated with Al Qaeda in the Arab Peninsula some two weeks after his father’s death when that operative was targeted by a CIA drone strike. He was collateral damage.

After those killings, the attorney general’s office – whose primary responsibility during both the Bush and Obama administrations appears to be interpreting the law and Constitution in ridiculously contrived ways to make things that are clearly illegal, like torture and assassination, appear legal – issued the administration’s legal justification for the targeting of a U.S. citizen for assassination by executive fiat.

Attorney General Eric Holder said in the following days that the Constitution guarantees “due process” but not necessarily “judicial process.” This statement is insidious: if “due process” means nothing more than executive branch officials carefully thinking over actions like assassination, then the rule of law is a hollow fiction.

This doctrine is an absolute affront to the Constitution and to civil and human rights. The government is understood to have the power to take many rights from a citizen if he commits a crime, for example, by putting him in prison.

But the right to due process, if it is at all meaningful, is a right which can never be taken away under any circumstances. This is because it is the only right that restricts the government’s ability to suspend a citizen’s rights. Without due process, without trials, without courts, there are no rights at all.

Holder is willing to justify the effective suspension of the right to due process under “extraordinary circumstances,” but the “war on terror” serves as a universal, standing extraordinary circumstance.

The corrosive set of legislation, executive orders, and legal opinions that constitute the “war on terror” bear a non-trivial resemblance to the emergency laws that kept Egyptians under authoritarian rule for decades.

American citizens currently enjoy more freedom than citizens of any other nation, but these have been won only through hard, slow struggle. And it is not inconceivable that the gains made in that struggle could be reversed, if we are not vigilant.

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  1. Pingback: The right to due process | mstmha

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