by Wilmer J. Leon III, Ph.D.
The first Black president and first Black attorney general have so twisted the Constitutional guarantees of due process of law, that “not only can American citizens be indefinitely detained, they can also be assassinated by their own government at the will and whim of their President.” Eric Holder’s interpretation of the nation’s basic law is both sinister and incompetent. “Holder sounds a lot like former Bush administration counsel John Yoo, the author of the opinion justifying torture.”
Attorney General Eric Holder: Wrong on the Law, the Politics, and on the Wrong Side of History
by Wilmer J. Leon III, Ph.D.
“Even a first year law student would be banished to the law library if they made such a ridiculous argument.”
During a speech at Northwestern University’s Law School, Attorney General Eric Holder explained that the American government can kill American citizens abroad under the following conditions: ”First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.”
There’s one small problem with Holder’s analysis. It’s called the Constitution. Holder is wrong on the law, wrong on the politics, and on the wrong side of history.
Section 1 of the 14th Amendment of the US Constitution says in part, “No State shall…deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Holder went on to explain that when it comes to national security ‘Due process’ and ‘judicial process’ are not one and the same. First, this distinction is not made in the Constitution and second, the Constitution guarantees “due process of law” not just due process.
Black’s Law Dictionary 5th Edition defines “due process of law” as “Law in its regular course of administration through courts of justice.” It also states, “…no person shall be deprived of life…unless matter involved first shall have been adjudicated against him upon trial…” For Holder to state due process of law does not involve judicial process conflicts directly with established law. As a graduate of Columbia Law School he knows better. Even a first year law student would be banished to the law library if they made such a ridiculous argument.
“For Holder to state due process of law does not involve judicial process conflicts directly with established law.”
Even more basic than the 14th Amendment argument is the Article 1, Section 9 argument. It states, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder…shall be passed.” A Bill of Attainder is a government declaration that a person is guilty of a crime that carries the death penalty without the benefit of a trial. What else is a government determination to kill an American citizen without any judicial proceedings other than a Bill of Attainder?
As the Obama administration spokesperson for the Justice Department, Holder is wrong on the politics. Senator and candidate Obama characterized the national security policies of the Bush administration as “draconian,” “ineffective” and “counter to the values of the United States.” Candidate Obama railed against his predecessor’s counterterrorism techniques such as domestic warrantless wiretapping, waterboarding, military tribunals, and indefinite detention at Guantanamo Bay. Making these assertions, Holder sounds a lot like former Bush administration counsel John Yoo, the author of the opinion justifying torture. Candidate Obama promised the American people “change we can believe in.” The more these policies change, the more they look like the Bush administration, and the more they appear to have been politically motivated.
During his speech at Northwestern Holder said, “…the operation would be conducted in a manner consistent with applicable law of war principles.” The problem with this rational is that America is not at war so what war principles is he referring to? The Constitution divides war powers between the Congress and the President. Article 1, Section 8 of the Constitution states, “The Congress shall have Power: To declare War…” If Holder was referring to The “War on Terror” that is just a marketing scheme devised by the Bush administration to convince Americans that the powers of the Executive Branch post 9-11 needed to be expanded. Congress has authorized military action but has not formally declared war.
“By signing the 2012 DAA President Obama reaffirmed Bush’s suspension of habeas corpus instead of overturning it.”
Holder’s comments are even more disturbing when considered in the context of President Obama signing the 2012 Defense Authorization Act (DAA). Section 1021 of the Act allows for the indefinite detention of American citizens and/or anyone who commits a "belligerent act" against the U.S. As stated above, Article 1, Section 9 states, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” By signing the 2012 DAA President Obama reaffirmed Bush’s suspension of habeas corpus instead of overturning it. So now, not only can American citizens be indefinitely detained, they can also be assassinated by their own government at the will and whim of their President.
The framers of the Constitution endorsed these protections to insure that a president could not act like a monarch or dictator and unilaterally violate a citizens civil rights and liberties. In the 1960’s FBI Director Hoover spied upon and disrupted the efforts of those involved in the Civil Rights Movement by creating the Counter Intelligence Program or COINTELPRO. Hoover’s misguided fears, personal bigotry, and sense that members of the movement were “enemy combatants” engaged in “belligerent acts” against the United States resulted in the harassment and false imprisonment of conscience citizens, and many believe the assassinations of Dr. King, Malcolm X, and others fighting for equality in America. Holder is on the wrong side of history.
Benjamin Franklin is credited with saying, “those who will sacrifice liberty for security deserve neither.” If a US President can order the assassination of an American citizen without judicial approval he has become no better than the dictators that we have invested invaluable time, blood, and treasure to overthrow. With these pronouncements we have met the enemy and the enemy is us.
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