

Eric Holder’s speech–which starts with a defense of civilian trials and ends with dead American citizens–fails to achieve its impossible task. Granted, Holder frames his defense of civilian trials in efficacy, not rule of law (in language that really should have been a cornerstone of the NDAA debate). But ultimately, Holder claims to be upholding due process, and that’s where his case for killing Anwar al-Awlaki falls apart.

Close to the beginning of his speech, Holder promises the counterterrorism powers of the government would be subject to checks and balances.

We must – and will continue to – use the intelligence-gathering capabilities that Congress has provided to collect information that can save and protect American lives.  At the same time, these tools must be subject to appropriate checks and balances – including oversight by Congress and the courts, as well as within the Executive Branch – to protect the privacy and civil rights of innocent individuals.

Holder offers the use of the FISA Court as example of all three branches exercising such checks and balances.



Never mind that Holder exaggerates the statutory authority given to FISC. He still uses it as a robust example of the value of three branches exercising oversight. The court–even one operating in secret, Holder claims–provides an important check and balance.

Apparently, such checks and balances are not what the Constitution has in mind when it talks about due process for American citizens.






Unfortunately (for Holder and for the rule of law), his argument falls apart here. That bolded language explicitly invokes Hamdi (though interestingly, not by name). And here’s what Hamdi has to say about what due process entails.








That is, Hamdi–which Holder invokes for premise that “due process takes into account the realities of combat”–specifically says “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.” Hamdi permits for balancing–for the use of things like hearsay, for example. But it explicitly says that the realities of combat don’t obviate a citizen’s right to an impartial adjudicator.

You know. Like a judge.

As I’ll show in a later post, Holder’s claim that the Awlaki killing had proper Congressional oversight is just as false. But in his efforts to dismiss the necessity of courts to provide checks and balances, he invokes a SCOTUS case that requires an independent reviewer to provide just such a check.

7 replies
  1. earlofhuntingdon says:

    When the US Attorney General lauds the FISA court system, which involves unilateral, unopposed presentations by the executive to a secret court, as an example of the due process [sic] that he has in mind, he disavows his oath of office and tramples on the Bill of Rights.

    Mr. Holder’s logic is an undergraduate exercise in resuscitating the arguments successive colonial governments used in keeping Indians, Kenyans, Algerians, Vietnamese, Congolese and Filipinos in harness, submissively working for the betterment of their colonial masters. It seems a pity that filmmakers Merchant and Ivory are no longer among us. They could produce a marvelous period piece starring Messrs. Obama and Holder, if only Messrs. Orwell and Forster were also around to script it.

  2. MadDog says:

    I find much to disagree with in AG Holder’s weak arguments for the killing of al-Awlaki. Particularly his argument regarding “due process”.

    In sum, AG Holder defines “due process” as being so elastic and mutable that merely uttering the magic words “due process” is apparently sufficient to the US government’s claim that the 5th Amendment has been upheld.

    Their rationalization knows no bounds!

  3. Teddy Partridge says:

    He was actually speaking about Do Process: “We do, you process.” Sort of a twitter-based update on that Bush official quote about them being the movers and shakers, and we’re just the observers and documenters of their actions.

  4. rugger9 says:

    One would think that they would be tired of trying out all of these contortions, because they simultaneously need to absolve the ones who killed detainees and raped under Rummy’s orders. Those were human rights issues too.

    As noted above, an impossible task. God help us all.

  5. Mike D. says:

    Just so I’m clear, the counter notion here is that there’s a possibility that a judge would say to the government, yeah okay, go ahead and kill this person.

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