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Undoing Due Process

By Tyler VanValkenburg

It's right there in the Declaration of Independence. It's right there in the Bill of Rights. It's right there in the head of every sensible American citizen: We have a right to life.

And nobody, including the president himself, can deny us of that right—at least not without granting us due process first, not without a trial and not without a jury. The point being, even the president of the United States does not—and cannot be allowed to—have the power to order U.S. citizens killed at his own discretion. He cannot have this power, arguably the most quintessential of all tyrannical powers, because it would render null the most basic checks and balances placed on him, would let him act as judge, jury, and executioner all in one, and would directly defy the Fifth Amendment, which guarantees that no person “be deprived of life, liberty, or property, without due process of law.” Yet it is this exact power, the power to kill U.S. citizens, which the Obama administration now claims the president possesses.

A few weeks ago, Attorney General Eric H. Holder stated that, in an “extraordinary circumstance,” he could see the president being authorized to use lethal force, such as a drone strike, against a U.S. citizen without first awarding them the traditional due process. That should be allowed to sink in for a moment. The president of the United States, the leader of the free world, is now having his administration claim that he can execute any citizen who he sees as a viable and imminent threat, without judge or jury involved. To justify this, Obama’s Justice Department has disturbingly declared that the Fifth Amendment’s due process can be wholly satisfied by, to quote the New York Times, “internal deliberations in the executive branch.” Forget having to prove in court that a person is guilty of any crimes. Now, apparently, the executive branch can simply decree a citizen a present danger to society, and, in turn, can assassinate that person at will.

Holder qualified his statement the following day, explaining that drones will never be used against Americans not engaged in active combat. However, this reassurance comes from the Attorney General of the same administration that considers all military-age males caught in drone strikes overseas to be active militants. So not the most reliable of sources on who is and who isn’t actually engaged in combat. This also comes from the same Holder who last March stated that Obama’s targeted killings are not assassinations because “assassinations are unlawful,” implying that when Obama sentences someone to death, say by drone strike, that death is innately lawful, and thus simply couldn’t be an assassination. This is possibly Holder’s most Orwellian justification of Obama’s “targeted killings”—or assassinations, as they’re known by the dictionary and everybody else in the world—because it upholds these killings’ legality by insinuating that such legality is inherent in the president’s command. Holder’s statement more than calls to mind Nixon’s infamous explanation that, “When the president does it, that means it is not illegal.”

To call this most recent expansion of executive power truly frightening is not alarmist in the least. It doesn't matter what you think of President Obama or whether you trust him to be circumspect when using this lethal power. If you give one president the ability to end someone's life, you give all following presidents the ability to do so as well. So to all the loyal Democrats defending Obama’s authority to kill, keep in mind that the next president to grab hold of that lethal authority might be more of the George W. Bush breed. Obama has already proven, when he had American-born Anwar Al-Awaki killed by a drone strike in 2011, that the president can assassinate U.S. citizens abroad. Now, if he has his way and makes such strikes legal here at home, a future president could feasibly commit a similar assassination within an American city or town.

I’m not implying that Obama is about to rain down drone hellfire on you anytime soon—just that he and all the presidents that follow him now have the power to do so. They do not have to prove to the public or to a judge that you are guilty of any crimes. They just have to decide, behind the White House’s closed doors, that you are a current threat. And with that decision they can end your life.

This newly claimed assassination power is only the most recent (and most egregious) in a series of executive overreaches committed in the name of fighting terror. Compared to those that came before it, though, this most recent assault on liberty strikes a bit closer to home—literally.

Tyler VanValkenburg ’16, a Crimson editorial writer, lives in Canaday Hall.

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