Robert Zaller
A round of patriotic holidays punctuate our calendar: Memorial Day, Flag Day, Independence Day, Columbus Day and Veterans Day. Lately, Sept. 17 has been celebrated as Constitution Day. Make that Constitution Memorial Day, though, because at just short of 225 years, the Constitution was officially pronounced dead March 5, 2012. The occasion was a speech by U.S. Attorney General Eric Holder at the Northwestern University School of Law in Chicago.
Holder had come to publicly defend the principle that the President of the United States has the right to assassinate American citizens. We know that a Justice Department memorandum to that effect has been circulating for some time in the bowels of the executive branch, although all efforts to secure acknowledgment or release of it have been stonewalled. Presumably, that memorandum made arguments for the existence of such a power under the authority of the executive, with appropriate citations and precedents. It is very likely that more than one version of it exists because we know that targeted assassinations of citizens go back at least to 2002.
If Holder were going to defend such assassinations, why not simply release the memo or memos? Because a speech is just a speech, while memoranda — in legal form defining and defending specific actions or classes of actions — are subject to review by the legislative and judicial branches and are dispositive, in legal lingo. Holder’s address to the law school was thus an attempt to make the presumed argument of the still-undisclosed memos in summary form, without conceding their actual existence.
Holder rejected the term “assassination” to describe what George W. Bush and Barack Obama have both been doing for the past decade, if not longer. An assassination, he explained, was a killing carried out without due process, as required by the Fifth Amendment proviso that “No person shall be deprived of life, liberty, or property without due process of law.” Such a requirement, he claimed, was satisfied by “a careful and thorough review of the facts in a case” by competent executive authority, signed off on by presidential warrant. Lest the point be misconstrued, Holder declared, categorically: “‘Due process’ and ‘judicial process’ are not the same. … The Constitution guarantees due process, not judicial process.”
There you have it. Eight hundred years of constitutional thought, development and struggle — the Anglo-American legal tradition — are given the middle finger in a single statement of breathtaking temerity.
In 1215, King John of England promised his barons that he would deny or delay justice to no one and that “no freeman shall be taken or imprisoned, or be disseised of his Freehold, his liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed, nor will we pass upon him, or condemn him, but by lawful judgment of his peers.” This is what we know as trial by jury. It means a publicly stated charge in open court, delivered in person to the accused; a right to secure bail and legal representation, the latter at public charge if need be; the right to confront one’s accusers directly; to see, examine and be offered full opportunity to rebut all evidence presented; and, finally, to be judged on the basis of that evidence and that evidence alone before 12 independent and impartial jurors drawn from the lay community. This is what due process means. It is the only thing due process means. It is the only thing it has ever meant. Due process is judicial process, or it is nothing at all. The Constitution guarantees due process in exactly this sense, or it is nothing at all. Henry de Bracton understood it this way in the 13th century, and Sir Edward Coke in the 17th. Blackstone and Madison understood it this way in the 18th century, and even the Rehnquist Supreme Court, in Hamdi v. Rumsfeld and Boumediene v. Bush, did in the present century.
It is very simple. Insert even a sliver of difference between due process and judicial process, and you convert liberty into tyranny. Holder, sworn to uphold the laws of the United States, is the mouthpiece of that tyranny, and Obama is its self-appointed judge, jury and executioner.
The excuse offered by Holder was that we are at war and that extrajudicial killing is to be applied only against terrorist groups or those “associated” with them where apprehension and trial, be it civilian or military, is impracticable. Of course, all these determinations are to be made by the executive. The persons thus targeted are informed of no charge against them, have no opportunity for defense, and learn of their fates as they are executed.
We are not, however, at war. The war on terror is a legal fiction, a supralegal license to hunt and kill across any border on Earth. Like Nixon’s so-called war on drugs, which was (and is) its prototype, it defines and pursues an enemy that by definition can never be defeated. In this, it fulfills the condition of permanent war that George Orwell identified as the last, best excuse for tyranny in “1984”: a state of “exception” to the laws that is never to be rescinded and so takes the place of the laws themselves. The fact that Congress has supinely acquiesced in these activities over the past several decades, particularly since 9/11, does not justify them. It only means that the branch of government tasked with making law — the critical branch, in the view of the Founding Fathers — has abdicated its own responsibility to ensure that the executive branch remains faithful to its only charge, which is to ensure that the laws that exist (including fundamental constitutional protections) are faithfully observed and executed.
It will be argued that we live in exceptional times. That is untrue. Queen Elizabeth of England survived numerous assassination plots throughout her 45-year-reign in the 16th century. Her successor, James I, was faced shortly after his accession with a plot to blow up the houses of Parliament while the king and his chief justices were attending. These threats were as great as any that face us today, but they were not used as pretexts to suspend the laws or ignore the ordinary jurisdiction of the courts. On the other hand, the country revolted against James’ son and successor, Charles I, when he ignored the precedent. They put him on trial as a tyrant, the charge read, and a traitor to the laws of England.
The legacy of that long-ago struggle is the footing for our Constitution and nation. At this point we have betrayed them both and are in danger of losing them for good. What will remain is a regime governing for a permanent state of emergency. Hosni Mubarak governed Egypt that way for 30 years until his people rose up and overthrew him. Bashar al-Assad did the same in Syria. The ayatollahs do the same thing in Iran, as did the petty despots of Central Asia and the police states of Southeast Asia. These are the models we are following. They are what we have increasingly become.
I would have expected Holder’s Northwestern audience to walk out en masse or hoot him off the stage. I would have expected the American Bar Association to have called for his immediate resignation and for Congress to call for Obama’s resignation. Instead, there was the usual tut-tut editorial in The New York Times and no protest from the legal community except for the American Civil Liberties Union. Even there, the issue soon faded, and the ACLU’s director, Anthony Romero, now suggests that I write to congratulate President Obama for his support of gay marriage.
Sorry, but gay marriage does not console me for the loss of the Bill of Rights.
Ben Franklin said that he and his fellow delegates to the Constitutional Convention had given us a republic — “if you can keep it.” We haven’t. The question is whether we have the will to recover it. I see no sign of it, and it is an issue that seems to have completely bypassed the various Occupy protests, such as they are.
Time and liberty are wasting.
Robert Zaller is a professor of history and can be reached at [email protected].