Imaginary Due Process

According to the Attorney General of the United States, the United States Constitution Bill of Rights, specifically the due process requirements, no longer applies to some American citizens if the president arbitrarily chooses to suspend them.

In short, the president can have you assassinated if he thinks it’s a good idea.

Under questioning by House of Representatives members, FBI Director Robert Mueller wasn’t exactly sure whether such presidential authority was limited solely to Americans located outside the United States. He didn’t know whether his boss’s legal “criteria” for such targeted murder allows the president to snuff out Americans on U.S. soil, saying he’d have to go back and check with the DOJ on that detail.

"I have to go back. Uh, I'm not certain whether that was addressed or not," Mueller said. When pressed as to whether the government can kill U.S. citizens at home, he deflected: "I'm going to defer that to others in the Department of Justice," He’s the head of the FBI and he doesn’t know.

Last week, Attorney General, Eric Holder, gave a speech at Northwestern University in which he defended his legal opinion that the president can kill U.S. citizens under circumstances that I can only describe as imaginary due process, and the “criteria” did not explicitly exclude the targeting of Americans at home.

"Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack. In that case, our government has the clear authority to defend the United States with lethal force," he said.

These are his “criteria:” "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."

Note especially the fact that the determination under the first criteria would be entirely secret; no laws; no rules; no regulations; no settled fair procedure; no indictment; no notice; no information; no charges; no trial; no judge; no impartial jury; no right to confront witnesses; no compulsory process; no attorney; just a total deprivation of life, liberty and property without any semblance whatsoever of due process under the Fifth and Sixth Amendments of the United States Constitution.

Note that under the second criteria the determination as to whether capture of the individual is feasible or not is also entirely secret, and made without the benefit of any laws or other proper authority. Feasibility would be "fact-specific and potentially time-sensitive," says Holder, which means essentially that there really are no settled rules.

Finally, under the third criteria, it appears that the operation would be conducted by the military as though a war had been secretly declared against a private individual – not another nation.

"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," Holder declared, despite the fact that there is clearly no legal precedent for this theory.

There, you see; Eric Holder has magically redefined the meaning of the Bill of Rights. Due process is what he says it is – a secret process with no rules -- not what the Fifth Amendment provides, and judicial process is not guaranteed by the Constitution despite what the Sixth Amendment provides.

Now let’s look at how this new definition of the Constitution worked in the case of presumed terrorist American, Anwar al-Awlaki, his sixteen year-old son, and their driver. All were summarily assassinated in Yemen while driving peacefully along in the remote desert by a U.S. operated unmanned drone.  

Though no charges of any kind were ever filed against Mr. Awlaki, the U.S. government apparently believed that he helped plot the foiled Christmas Day bombing of Northwest Flight 253; and that he in some unspecified way inspired the Fort Hood shooting.

These were all events which took place in the distant past. There was no public evidence to back up those claims, and clearly no evidence that Awlaki was an imminent danger to, or threat of conducting an imminent violent attack, against the United States. He was ten thousand miles away from U.S. shores when the president had him snuffed out.

Awlaki’s 16 year-old son and their driver were entirely innocent of any wrongdoing, a fact which is readily admitted by Attorney General Holder and the U.S. government. Incredibly, these two innocent human beings were considered by the U.S. government to be “collateral damage.”

How in the name of reason and justice does Attorney General Holder’s “criteria” apply to them? Where is the “collateral damage” criterion? If it can happen to them, it can happen to you, and the Constitution of the United States of America is no longer a barrier.

It’s new; it’s scary; it’s imaginary due process.