(Un)Constitutional Murder: Due Process vs. Judicial Process

Ever since Eric Holder’s speech in which he 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.

I’ve been kind of wondering what the difference is. After all, most people equate due process with the right of a citizen to appear before a judge and plead his or her case. Holder is correct in that the 5th Amendment only provides for due process, which simply states that “[N]or shall any person… be deprived of life, liberty, or property, without due process of law….”

Judicial process, or procedural law, is the system of rules in place meant to guarantee that when a defendant comes before a court, he or she will receive fair and equal treatment. Wikipedia does a succinct job of explaining procedural law, and indeed, the things that procedural law accomplish are not central to demonstrating the sheer ludicrousness of Holder’s argument.

If we were baking, and not attempting to create a fair justice system, you might argue that justice is a delicious cake that we want to bake, due process consists of all the ingredients, and judicial process is a method (but not THE method) by which those ingredients are combined. Can we get the same cake, even if we use different methods of combining ingredients? Absolutely. Can we get the same cake if we substitute flour for, say, rocks? Not on your life.

Eric Holder, in his arguments, is saying that because there is a process within the White House for choosing assassination victims, that constitutes due process. He is substituting rocks for flour. In Murray v. Hoboken Land, the US Supreme Court ruled the following:

it was not left to the legislative power to enact any process which might be devised. The [due process] article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process ‘due process of law’ by its mere will.

In other words, none of the three branches of government can arbitrarily create a process and declare it to be due process. Likewise, simply because we’re in an ill-defined “War on Terror” does not abrogate the right of citizens either. The Supreme Court ruled in Hamdi v. Rumsfeld that

the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.

In other words, just because a citizen may not have access to judicial process, in no way does this restrict their right to due process, which cannot be arbitrarily defined by the Obama Administration.

Speaking of President Obama, I think Glenn Greenwald’s words are far more eloquent than mine could be when he says:

The willingness of Democrats to embrace and defend this power is especially reprehensible because of how completely, glaringly and obviously at odds it is with everything they loudly claimed to believe during the Bush years. Recall two of the most significant “scandals” of the Bush War on Terror: his asserted power merely to eavesdrop on and detain accused Terrorists without judicial review of any kind. Remember all that? Progressives endlessly accused Bush of Assaulting Our Values and “shredding the Constitution” simply because Bush officials wanted to listen in on and detain suspected Terrorists — not kill them, just eavesdrop on and detain them — without first going to a court and proving they did anything wrong. Yet here is a Democratic administration asserting not merely the right to surveil or detain citizens without charges or judicial review, but to kill them without any of that: a far more extreme, permanent and irreversible act.

What happened to Senator Obama, who (correctly) stated:

By giving suspects a chance — even one chance — to challenge the terms of their detention in court, to have a judge confirm that the Government has detained the right person for the right suspicions, we could solve this problem without harming our efforts in the war on terror one bit.

Everyone — Democrats, Republicans, Independents, Libertarians, and yes, even apathetic voters — should be outraged by Obama’s departure from advocating for basic human rights. Maybe you’d prefer to vote for him in the next election over Rick Santorum. Totally understandable. BUT (and this is a big but), I want to know exactly how you intend to contact him to let him know that violating the Constitution is not okay. How you intend to keep him accountable. If you want another 4 years of Obama (again, which may or may not be better than 4 years of Romney or Santorum, I don’t know), an extra burden of responsibility lies on your shoulders to make sure that these abuses of our rights as citizens is ended.