Whatever Happened to Due Process?

“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” Benjamin Franklin

I support most of President Barack Obama’s actions and policies.  That does not mean when they violate the fundamental ideas that make me believe in our republic I will blindly follow him.  The recent reports about his use of drones to target Americans trouble me.  If these same policies were announced under George W. Bush’s tenure in the White House I would be furious.  Case in point:  I opposed the Foreign Intelligence Surveillance Act (FISA).  This expands law enforcement’s abilities to spy on its own citizens.  The proudest moment of my career was when I texted my then boss to repeat the above quote on the floor of the House of Representatives before he voted no to its reauthorization and he did.  I was even more appalled when a Bush spokesperson explained away the deaths of some Americans overseas — they were on a bus that had been targeted because there was a terror suspect on board — by saying that; their proximity to the terrorist meant they were equally as guilty, as if they had any idea.

So the revelation that we are using drones, and my feelings on their use in general ranges from just bad policy to being downright evil, disturbs me greatly.

Every US passport reads, “The Secretary of State of the United States of America herby requests all whom it may concern to permit this citizen/national of the United States named herein to pass without delay or hindrance and in case of need to give all lawful aid and protection.”  So, even when outside of the country, the rights bestowed on Americans while inside the US, extend to us when we are outside of it.  It’s why embassies are considered to be part of the country they represent. (If you are wondering how I feel about the policy to hold US citizens indefinitely when suspected of being traitors, I feel exactly the same way).

Our Constitution, the guiding document of our government provides us with certain protections against being signaled out for prosecution and certainly death at the hands of our government.  I am willing to give up some conveniences to be safer.  I take my shoes off and walk through often confusing and less than coordinated policies the TSA has set up when I fly. I accept that on any given day, I am photographed or videotaped countless times as I go about my day to day life.  I am not willing to give up those protections, however and believe both the provisions that allow our federal government to detain or kill anyone because it thinks it has “intelligence” that proves they are terrorists.  Our “intelligence” told us Saddam Hussein was developing weapons of mass destruction.  It has also more recently lead to us using our drones against such dangerous threats as weddings.

Specifically, these provisions violates:

The Fifth Amendment:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The Sixth Amendment:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

The gist of how this policy works is a senior US government official — apparently the president himself, reviews intelligence and decides who lives and who dies.  Notwithstanding the inherent flaws in any intelligence of this sort — even when followed to the letter, our criminal justice system has deep flaws (Look at the number of people removed from death row or the states that have imposed moratoriums on it due to DNA evidence) — we elected a president, not a god or king.

Yes, al Qaeda wants to attack us and yes, the definition of war has changed dramatically how we fight non-nation states.  In the post “24″ and “Zero Dark Thirty” world, maybe we think we need to resort to extreme tactics to keep our citizenry safe.   I do not subscribe to the view that torture produces good intelligence (to quote ‘Reservoir Dogs” – “If you torture someone long enough they will admit to setting the Chicago Fire but that don’t make it so.”) but that’s a point for another day.

I still don’t think tossing due process under the bus is ever a good idea.  I mean, if we destroy the very things that make our nation so special, I guess the terrorists can all go to Disney World because they clearly have won.

Here is that memo as obtained by NBC News.