Who would have believed it? Constitutional “due process” is now under debate across the United States.

The latest lively debate regarding the president’s right to assassinate American citizens without due process was on Friday’s Real Time with Bill Maher. Glenn Greenwald and Professor Wendy Schiller were at odds with blogger Andrew Sullivan and Maher.

Greenwald outlines his thoughts on the session in a post on Salon.

It’s a difficult forum to make serious points that aren’t often heard – time is short, the environment is comic and raucous, there’s a vocal live audience, you’re competing with multiple people even for the limited time allotted – but I thought the Awlaki discussion was actually quite good given those constraints. Of course there’s a lot more I wish I could have said, but I felt like there was actual evolution even among Andrew and Maher in how they talked about the topic as we went on (it seemed like that was true of the live audience as well), and that doesn’t often happen.

I think it had the capacity to make people whose only previous thought was I’m-glad-The-Terrorist-Is-Dead see that there are many more implications than that.

First, The Powers That Be made torture a debatable point, and now, due process. It’s scary to think of what the next “debatable point” will be.

In a recent speech given at Northwestern University Law School, Attorney General Eric Holder sought to provide legal justification for the controversial practice of “targeted killings” of US citizens suspected of terrorism. In a widely reported drone attack, the Obama administration executed Anwar al-Awlaki along with another US citizen last September in Yemen. “Targeted killings” have been criticized for violating an executive order banning assassinations, a federal law against murder, the protections of the Bill of Rights including the Fifth Amendment right to due process, and various principles of international laws of war.

While it is widely known that the Justice Department’s Office of Legal Counsel has authored a memo asserting this power, the Obama administration still refuses to make it public.

AG holder said killing of an American citizen who is associated with al Qaeda is permitted when the US government has determined that “the individual poses an imminent threat,” capture is not feasible, and the operation would be conducted “in a manner consistent with applicable law of war principles.”

The due process clause of the Fifth Amendment, however, requires that an individual facing the deprivation of life, liberty, or property be given notice and a hearing before an impartial judge where he or she can challenge the basis for that deprivation.

Holder argued that certain individuals facing death need not be provided with an opportunity to challenge that decision in court.  He drew an odd distinction between “due process” and “judicial process” saying that they “are not one and the same, particularly when it comes to national security” and that “the Constitution guarantees due process, not judicial process.” Essentially, he argued that the decision to end the life of US citizen can rest entirely with the executive branch of our government with no judicial review whatsoever because the Constitution “does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a US citizen.”

Holder’s justification for targeted killings raises many worrying questions. For instance, are targeted killings limited to foreign countries or can they be used domestically under certain circumstances? What procedures does our government follow before taking the decision to execute a US citizen? And how does the government define “operative of a foreign terrorist organization that is at war with the US”?

Writing for the NY Review of Books, Constitutional law scholar and Bill of Rights Defense Committee advisory board member David Cole noted that the risk of error in targeted killings is too great. He explained,

But [Holder] paid far too little attention to the risk of error or the burden of providing further procedural guarantees. The risk of error where the executive acts as prosecutor, judge, jury, and executioner, in secret, could hardly be greater. One need only look at the over 600 men once condemned as the “worst of the worst” but now released from Guantanamo to see that the executive can make mistakes. Holder provides no assurance that a demanding review process is undertaken, or of how it is constructed to minimize risk of error, or even what standard of proof is employed.

At this morning’s Senate Judiciary Committee hearing on the Due Process Guarantee Act, Senator Al Franken (D-MN) did for the first time what prosecutors, courts, and the president have never done: question one of the Justice Department attorneys who authorized torture under the Bush administration.

Stephen Bradbury, former head of the Office of Legal Council and one of the authors of the legal documents commonly known as torture memos, appeared as a witness at the hearing, where he argued against the Due Process Guarantee Act introduced by Senator Dianne Feinstein (D-CA). He claims that the law would place too many limits on the president’s ability to detain people suspected of connections to terrorism.

As reported by Talking Points Memo,

Sen. Al Franken (D-MN) said he was disappointed that Bradbury was a witness at the hearing given his history.

“It’s very difficult for me, frankly, to rely on your legal opinion today if the Office of Professional Responsibility questions your objectivity and reasonableness then I think we on the panel should as well,” Franken said before adding the OPR report on Bradbury’s involvement with the torture memos into the record.

Adam Serwer, who writes for Mother Jones, perhaps put it best:

Franken dressing down Bradbury is the worst consequence any torture architect has ever faced: Mild embarrassment.

In October, the New York Times reported that the Justice Department’s Office of Legal Counsel produced a 50-page secret memo in June 2010 authorizing the killing without trial of Anwar al-Awlaki, a US citizen. The New York Times report was based on comments made by people who have read the memo.

Alwaki’s killing was permitted, the memo found, despite an executive order banning assassinations, a federal law against murder, the protections of the Bill of Rights, and various principles of international laws of war.

Awlaki was targeted in a drone strike carried out by the US in September. He was killed along with another US citizen while they were in Yemen. The Obama administration has refused to even admit that it ordered the killing.

In response to a Freedom of Information Act request made by the New York Times, the Project on Government Oversight, and the American Civil Liberties Union, the Department of Justice said it “neither confirms nor denies the existence of the document.”

At a recent Senate Judiciary Committee oversight hearing, Attorney General Eric Holder also refused to address the existence of the memo.

Writing for the Loyal Opposition blog, Andrew Rosenthal points out that such policies belie the Obama administration’s promise for greater transparency.

Prominent national security and constitutional law scholar (and Bill of Rights Defense Committee Advisory Board member) David Cole notes that there is something fundamentally wrong with a democracy that allows its leader to order the execution of citizens and non-citizens without having to defend such action in public.

Had Awlaki been found on the battlefield, Cole explains, neither the laws of war nor the Constitution would have prevented the US military from shooting him. Awlaki, however, was in Yemem and did not belong to al-Qaeda or the Taliban, the two organizations against which Congress authorized the use of military force.

The memo authorized Awlaki’s execution because it found that the organization to which he belonged, al-Qaeda in the Arabian Peninsula, was a “co-belligerent,” and because he himself posed an imminent threat to the US and his capture was not feasible. If true, these assertions may provide sufficient ground for Awlaki’s execution. However, Cole points out, they were never tested in any forum.

He writes,

As American citizens we have a right to know when our own government believes it may execute us (and others) without a trial. In a democracy the state’s power to take the lives of its own citizens, and indeed of any human being, must be subject to democratic deliberation and debate. War of course necessarily involves killing, but it is essential that the state’s power to kill be clearly defined and stated in public—particularly when the definition of the enemy and the lines demarcating war and peace are as murky as they are in the current conflict.

• 8/29, Glenn Greenwald, Salon, The decade’s biggest scam
• 8/29, Barton Gellman, Time Magazine, In New Memoir, Dick Cheney Tries to Rewrite History
• 8/29, Avni Nijhawan, Patch.com, Ten Years After 9/11, Civil Rights Still Under Attack
• 8/26, Philip Giraldi, American Conservative, The Spy Next Door Comes from New York
• 8/26, Steven Aftergood, Secrecy News, Govt Will Not Declassify 2001 Opinion on Surveillance

Every four years each member of the United Nations is required to have their human rights record reviewed under a procedure called the Universal Periodic Review. After the review is complete, the United Nations Human Rights Council (HRC) issues a set of recommendations on how the UN member can fulfill its commitment to protect and promote human rights.

HRC recently completed its periodic review of the United States’ human rights record and has issued a set of recommendations for the United States. Among the recommendations was a strong push by several governments urging the United States to take immediate action to stop racial profiling at the local, state, and federal level. Specifically, the Rights Working Group recommended that the Obama administration take the following actions:

1. The President should issue an executive order prohibiting racial profiling.
2. The Department of Justice (DOJ) should revise its June 2003 guidance on racial profiling to eliminate the loopholes created for national security and border searches, to include religion and national origin as protected classes, to apply the guidance to state and local law enforcement agencies, and to make it enforceable.
3. The 2002 DOJ Office of Legal Counsel (OLC) “inherent authority” memo that reversed historical trends to keep state and local law enforcement out of federal civil immigration work should be rescinded and OLC should issue a new memo clarifying that state and local law enforcement agents may not enforce federal immigration laws absent formal, federal authority.
4. The Department of Homeland Security (DHS) should terminate the 287(g) program. DHS should also suspend the implementation of the Criminal Alien Program, the Secure Communities Initiative and similar programs unless and until meaningful safeguards are put in place whenever collaborating with state and local law enforcement to ensure that racial profiling and other human rights violations are not occurring.
5. DHS should terminate the NSEERS program, repeal related regulations, and provide relief to unfairly impacted individuals.
6. The Obama administration should urge Congress to introduce and pass the End Racial Profiling Act which prohibits profiling on the basis of race, religion, ethnicity and national origin at the local, state and federal levels.

The US State Department’s legal advisor, Harlod Hongju Koh, issued a response in early November affirming the US government’s commitment to put an end to racial profiling.

In closed-door testimony before the House Judiciary Committee on May 26, former Bush Assistant Attorney General Jay Bybee commented on the highly controversial torture memos that he co-authored.

In a transcript released by House Judiciary Committee Chairman, John Conyers, Bybee informed the committee that the Justice Department did not have full knowledge of the interrogation practices.

The Judiciary Committee released a fact sheet summarizing key revelations from the interview. Some main points include John Yoo’s close relationship with the White House and his disclosure of secret White House “war planning” meetings, Bybee’s inaction to ensure that Yoo preserved his OLC emails when he worked for Bybee, and Bybee’s statement that “in terms of the analysis, I am going to stand by the memo.”

In his testimony, Bybee defended his role in the torture memos and said he was “proud of our opinions” at the Office of Legal Counsel, too, calling them “well researched” and “very carefully written.”

Jameel Jaffer, Deputy Legal Director of the ACLU commented:

Judge Bybee’s testimony underscores what we’ve been saying for a long time: that the Justice Department should be conducting an investigation that encompasses not just low-level interrogators but senior government officials who authorized torture.

Join BORDC in the effort to hold government officials who authorized torture accountable.

• 5/4, Joby Warrick, Peter Finn, and Ellen Nakashima, Washington Post, Times Square bombing attempt reveals limits of video surveillance
• 5/4, Andy Worthington, AlterNet, Obama’s Tragic Guantanamo Legacy: Prosecuting a Child Soldier and Victim of U.S. Torture
• 5/4, Associated Press, UK court rules bars secret evidence in Gitmo suit
• 5/4, Shannon Wolfson, KXAN-TV (Austin, TX), Heated opposition to new fusion center
• 5/4, Jane Sutton and Cynthia Osterman, Reuters, U.S. sends two from Guantanamo to Spain, Bulgaria
• 5/3, Fran Quigley, Indianapolis (IN) Star, Johnsen, Constitution Both Denied Role in Obama Administration

On Friday, my op-ed on Dawn Johnsen’s withdrawal of her nomination to lead the Department of Justice’s Office of Legal Counsel (OLC) was published by Truthout.

Senior executive officials, some of whom still remain in the government, stand accused of being—and appear from unearthed documents and their own public statements to indeed have been—complicit in torture. Yet none of them has faced justice for alleged crimes that, according to experienced interrogators from the Air Force, Army, CIA and FBI, helped cause the deaths of thousands of US servicemembers, as well as untold numbers of Iraqis and Afghanis.

As long as they remain unanswered, these allegations show a disregard for the law at the highest levels of not one, but now two, administrations and continue to undermine the legacy of human rights responsible for our nation’s once vaunted international reputation.

Johnsen’s stance for executive accountability was not merely principled but also the only defensible position to take within the bounds of international law—which the Obama administration continues to violate by overlooking torture and sweeping voluminous evidence of it under the rug. The Convention Against Torture is clear: All credible allegations of torture must be investigated, as a matter of law, without the discretion normally afforded to prosecutors. Investigating officials who authorized torture would represent not an act of political retribution but rather a neutral process compelled by the law. It is the free pass given by the Justice Department to politically connected criminals that reflects the subjugation of law by politics.

In this month’s issue:

• Court rules against warrantless surveillance and state secrets privilege
• BORDC News
  • BORDC raises awareness and recruits supporters around the country
  • Chip Pitts discusses privacy and technology on KERA
  • Sahar Aziz addresses AMA Foundation’s Monthly Policy Forum
• Grassroots News
  • Coalitions launch local campaigns in major cities across the US
  • Illinois Coalition Against Torture promotes anti-torture policy
  • BORDC meets with coalition in Hartford, CT
  • CAIR-LA responds to police harassment cases
  • Get Involved in the People’s Campaign for the Constitution
  • Read the latest news and analysis on our blog
• Law and Policy
  • Inspector General’s report reveals defects of 287(g)
  • Google and AT&T join civil liberties groups in call for increased Internet privacy protections
  • Dawn Johnsen withdraws nomination to OLC
• New Resources and Opportunities
  • April 22: Blueprint for Accountability at the Newseum in DC
  • May 24: Anti-torture protest in Chicago
  • Book Review: How to Break a Terrorist: The U.S. Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq
  • April and May screenings of The Most Dangerous Man in America
  • Petition to stop racial profiling in immigration enforcement