Judicious Process vs. Due Process

Most people living in the US have heard of due process, and though few of us have probably studied the term, I think most of us have an idea what it means. Or so I thought, before I read Eric Holders speech where he outlines the legal justification behind sanctioned killings of US citizens, bypassing the courts.  I'll get to that a little later because the whole topic made me go back and do some reading, and though much of what I found was written in legaleze, I put the time in to try to figure out what it all said.

I don't think it helped though, because I am right back where I started.  I still think due process just refers to all the rights afforded to everyone.  Free speech, trial by jury, remaining silent, representation, among others.  There are a few different contexts in which the term is used, which can be confusing, but luckily, to address Mr. Holder's use of the term, we only need to look at how it is used in the constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This is, in fact, the entire fifth amendment to the constitution, part of our rights as citizens of the US.  I have bolded the section which references due process of law.  It's odd that the entirety of the amendment is quite explicit and direct, but the question of due process has always been more left to context than explicitly understood.

Now lets look at the meat of what Mr. Holder had said:

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.  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.

Now, first I have to say that this paragraph is but one in a very long speech.  There is some context there.  He talks about the successes we have had in prosecuting terrorists, and all the plots that have been averted, and he even says a few things I agree with (damn few).  But the quote above is something I find very disturbing, and I think deserves a lot more attention than it got.

If you haven't deciphered it yet, he is basically saying that the 5th amendment doesn't guarantee that if you are accused of something serious, say killing someone, you will face a jury, or even get a court hearing.  That is what is meant by Judicious.  Instead, what Mr. Holder is saying is that due process is an abstract idea, that it simply means that some entity has to review it.  I would assume (perhaps hope is a better term) that there is some standard being applied, like that the entity given this power be impartial, at least I think that is being implied.  He goes on to make a historical argument that the president has traditionally been charged with maintaining national security.

THE ABOVE PARAGRAPH SCARES THE SHIT OUT OF ME!  In my mind we're basically being told that now the president has the legal authority to decide which citizens are a threat to our country, and summarily execute them.

To form a more specific rebuttal, I will start by pointing out that the entire 5th amendment is one sentence.  One cannot look at the term "due process of law" without also looking at the first few words, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury".  There is a clear call for an indictment (an instrument of the judiciary), and a Grand Jury.  I think this is probably a foundation for a legal argument that I just don't have the experience to produce.  But I think the implications of Mr. Holders opinion reach so far that we as citizens have an obligation to stand up and oppose it.

Some people may look at this debate and not understand why it matters so much.  They look at the context and think that killing al-qaeda is probably a good thing, and they may be right, but the implications of what Mr. Holder is saying go deeper, in fact they question a fundamental understanding of one of the underpinnings of our society, the need for courts.  This opinion invalidates the idea that accused people are guaranteed the right to a trial in a court and judgement by a jury.  Due process becomes this abstract idea that something somewhere will review the situation to make sure it is all nice and legal.  It's the main ingredient required to form a tyranny.

Since I am not a lawyer, I can't give the eloquent rebuttal that I'm sure Mr. Holder would, I certainly can't cite the precedents.  But I can tell you one thing.  We are having out rights stripped from us by people like Eric Holder, and we the people need to stand up and start making some noise because the deeper we get the harder it's going to be to climb back out.  If we don't fight to preserve the idea that we were founded upon, this incredible American experiment is going to fail.

Tell me why I am wrong!