Rehabilitating the Star Chamber

So, Eric Holder gave a speech yesterday, justifying the administration’s policy of targeted killings. The speech is full of gems, but this is perhaps the best part:

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces.  This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.

So, due process can be met by secret deliberations with no right to confront one’s accuser, no right of appeal or judicial review, and no opportunity to introduce exculpatory evidence? It does not require any public notice as far as I can tell, and people on the death list might not even know they are on it or why. No one seems to have standing to challenge these decisions, except perhaps the targeted person, but since they don’t even need to be charged with a crime or indicted, I am not sure what they would be challenging.

You may recall the Star Chamber:

Court sessions were held in secret, with no indictments, no right of appeal, no juries, and no witnesses. Evidence was presented in writing. Over time it evolved into a political weapon, a symbol of the misuse and abuse of power by the English monarchy and courts.

How is our current scheme for targeted killings any different? State murder of political enemies on the basis of secret memos. That is the very essence of the Star Chamber, and the precise reason why that practice became a symbol of tyranny.

Look, I get that there are bad guys out there. And indeed, we may need to kill them on occasion. But why not have a public process? Why not require indictments and trials in absentia. Why not have judicial review?

Yes, the Star Chamber model is quicker. But since when is that the determinative principle on issues that confront fundamental questions of democratic governance and civil liberties?

I’ll say it again. If you support this, this rationalization of political murder, then you can’t complain about torture, indefinite detention, presidential war, and all the other post-9/11 abuses of power in the name of security. Because once you’ve accepted that the president can order the execution of even American citizens without any of the niceties of due process or other constitutional protections, then you’ve essentially accepted that national security concerns trump all else.

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