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Due process vs. judicial process

By Walt Braun

U.S. Attorney General Eric Holder and the Obama administration have more explaining to do about the killing of American citizens in other countries.

Mr. Holder apparently thinks he dealt with this ugly business during a speech Monday at Northwestern University. He didn’t — unless he expects Americans to trust the president to decide which American citizens are enemies of the state and ought to be executed.

The most conspicuous enemy of the state born in this country was Anwar al-Awlaki. He was an influential al-Qaida leader who won’t likely be missed by anyone other than his family and fellow terrorists. To be fair, the world, or at least the United States, is probably safer now that he’s dead. He was killed last September in a U.S. drone attack in Yemen, allowed if not directly ordered, by President Obama after U.S. officials decided to dispense with evidence and the judicial system.

Mr. Holder’s curious justification for that? “The Constitution guarantees due process, not judicial process.”

He acknowledged that the decision to kill a U.S. citizen is “among the gravest that government leaders can face,” and argued that it is both legal and sometimes necessary.

He explained that the government uses a three-part test to determine when a targeted killing of a U.S. citizen — he said the word “assassination” was a “loaded term” — is legal. First, the citizen must pose an imminent threat of violent attack against this country; second, capturing the citizen is not a realistic option, and third, the killing would be consistent with the laws of war.

What Mr. Holder didn’t say is that stripped of the rationalizations, the president and perhaps some close advisors can decide to have someone killed for reasons they — and they alone — consider justified and legal.

As for the specific reasons they consider such an act legal, Mr. Holder isn’t elaborating. Efforts are under way by news organizations and the American Civil Liberties Union to force the government through Freedom of Information requests to make public any memos providing legal justification.

The ACLU’s Hina Shamsi summed up the situation superbly: “Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact. Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power.”

Despots who decide what the law is might have such power. But centuries ago, Americans chose another way, opting for a system that, among other things, limited the president’s authority over life and death.

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