A common understanding among citizens of the United States is that before their liberty or even their life can be legally taken from them there must be due process, which basically consists of a trial, the right to know the charges against you and the right to face an accuser. When it comes to those designated as terrorists, however, Attorney General Eric Holder has unveiled a curious interpretation of due process. Speaking at Northwestern Law School on March 5, Holder said: “‘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.” What Holder seems to be saying is that those elements which we thought were essential protections are not really in the Constitution, at least not for anyone who gets designated as a terrorist. We know from bitter experience of the past decade that U.S. citizens can and do get designated as terrorists.
What makes Holder’s interpretation of the Constitution a particularly serious matter is that President Obama has assumed the power to order the assassination of U.S. citizens. Reuters has said that the decision to assassinate would be based on information in a “kill or capture list” drawn up by a “secretive panel of senior government officials.” The U.S. Justice Department has responded to an ACLU request for information about the assassination program by neither confirming nor denying the existence of any records.
The operative definition of who is a terrorist is someone “who is a senior operational leader of Al Qaeda or associated forces.” The Obama administration has adopted this definition originated in the preceding Bush administration. The president can secretly deem someone to be a terrorist without proving it with any evidence. The president and senior underlings thus become judge, jury and even executioner wrapped up in one.
Barack Obama had a much more stringent conception of due process protections when he was a U.S. senator from Illinois. On the Senate floor, Obama lamented of the detainees being held at Guantanamo Bay, that “a perfectly innocent individual could be held and could not rebut the Government’s case and has no way of proving his innocence.”; also, he mocked the right-wing claim “that judicial inquiry is an antique, trivial and dispensable luxury.”