Monday, March 12, 2012

This is unsettling.

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,” Mr. Holder said. “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.”

I'm getting bad flashbacks of the Bush DOJ. As if we didn't have enough problems with the way that our justice system focuses so much on procedural due process, as opposed to substantive due process, now procedural due process is being gutted. Holder may argue that due process need not be judicial process, but how can there be any kind of meaningful process if there are no external checks or oversight on the President's killing power? "We promise we won't misuse state violence" is not compelling in a post-Iraq world (if it ever was). The pro-torture and invasion arguments had a similar ring. Congress's authorization of the use of force to fight terrorism seems to authorize practically anything. Look where "just trust us" has gotten us.

Holder would do well to remember the lessons of why, in the absence of exigent circumstances, due process requires some form of external oversight. First year law students learn about the problem of excessive cooperation between judges and law enforcement, noting how someone's views of whether a search is justified can be clouded by the competitive process of crime fighting.

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. Crime, even in the privacy of one's own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent. 
 Johnson v. U. S. , 333 U.S. 10 (1948). Analogously, Holder's position seems to make due process a nullity and subject any given person's security against drone strike death to the discretion of the executive.

Yes, President Obama, I know that your intentions are good and that you're just trying to protect us. But when you're engaged in fighting crime or terror, you can put blinders on and not even be aware of whether a given use of state force is justified. That's why we require some kind of external oversight on executive law enforcement. Policing yourself obviously doesn't work, as evidenced by the crimes of the Bush administration and countless years of abusive domestic policing practices. We have a secret memo, which wasn't even turned over to Congress, making any kind of process, judicial or otherwise, somewhat impossible. Ugh.

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