Obama echoes Eric Holder: no judicial process in Constitution

    By PeraclesPlease on Sun, 09/09/2012 - 11:05am |

    Here's our #1 lawyer in the country last March: 

    "Due process and judicial process are not one and the same, particularly when it comes to national security," Holder said then. "The Constitution guarantees due process, it does not guarantee judicial process."

    I suppose Eric Holder got hold of the abridged version of the Bill of Rights, the one with only 5 Amendments (where the term "due process" comes up)

    Obama backs him up with his big concern: 

    "It's very important for the president and the entire culture of our national security team to continually ask tough questions about, are we doing the right thing, are we abiding by rule of law, are we abiding by due process"

    Seems the judiciary  was missing in these guys' law curriculum.

    Try these:

    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 defence.
    In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.
    Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted

    Scary stuff. I guess you can get an LLD anywhere these days. No wonder the Constitution's in shambles. Hey Barack, here's a big new idea for your next term - stand up for judicial process, for the whole Constitution. Costs nothing, just a couple stones.

    PS - a federal judge just ruled that Gitmo detainees get habeas rights. And the feds can't restrict their lawyers. 3 1/2 years into Obama's presidency, 11 years after we started putting people there, stacking their judicial deck against them, it's about time we do the right thing. Any chance we will?

    Comments

    Good work.


    by Flavius on Sun, 09/09/2012 - 11:25am

    Nice work, good links PP.

    As I understand what you're asserting, is that it's silly or worse for Holder and Obama to express concerns for due process when: (1) the toothpaste is already out of the tube in the sense that we've already targeted a lot of people with drones and so we should've considered due process way back when; and (2) the answer is simple and without dispute because the Bill of Rights require trial by jury and protects against 

    But I think we (i.e. we as a country) have never been able to reconcile with precision the need to protect individual liberties, including due process with national security.  But the he Constitution is, like it has always been, imperfect at resolving this tension.  Indeed, to further complicate matters constitutionally, there is and has been no consensus on what requires a congressional declaration of war.

     


    by Bruce Levine on Sun, 09/09/2012 - 3:36pm

    Thanks - however....

    The Constitution may be imperfect, but it's not vague. It's clear about the limits of waging war, who should have the upper hand, and the rights of the accused. I'm more concerned about judicial process here, the process that Obama & Holder simply erase as "doesn't exist". Mr. Obama likes bragging about his grandfather in Europe, but we held war crimes trials in Nuremberg - we didn't put on flawed show trials like that we oversaw against Hussein. We've let "national security" trump all concerns about liberty, right to privacy, right to life liberty and happiness. Where is "national security" enshrined as the holiest of holies in the Constitution? If it was so essential to the founding fathers, why no mention in the Bill of Rights, where they discuss bearing arms to resist a tyranny of "national security" tyrants?

    [the President swears to defend the Constitution, not "the country" or "national security"]

    Whether Congress got bullied into surrendering its duty to declare or deny war, there's little doubt that Congress holds the power for extended military engagements - i.e. attacks on foreign territories & foreign persons. Sure we can debate whether a rapid response needs approval in the name of swift security response, but after 5 or more years of drone attacks in Yemen and Pakistan, I'm not going to get sucked into that irrelevant sideline. Congress abandoned its duty. Firing missiles from drones in foreign territory is running a war, whether condoned by the foreign power or not, and the Constitution is clear. Just because lawyers learned how to lie and make black-and-white seem gray doesn't mean I've grown colorblind.

    We couldn't leave Iraq for how many years because "chaos" would ensue - and then after we've left we still have the burning chaos, the inter-ethnic killing. What was the charade about? We're always trying to "help" the world from the barrel of a gun - what % of time are we successful? What % of time aren't we just cynically lying to ourselves & others?


    by PeraclesPlease on Sun, 09/09/2012 - 4:34pm

    "It's very important for the president and the entire culture of our national security team to continually ask tough questions about, are we doing the right thing, are we abiding by rule of law, are we abiding by due process," Obama said in an interview with CNN first aired on Monday. "And then set up structures and institutional checks, so that, you know, you avoid any kind of slippery slope into a place where we're not being true to who we are."

    Just one more example among so many. After a while who 'we' are starts to become evident if the rest of 'we' are willing to look.

    http://www.harpers.org/archive/2012/09/hbc-90008850

    http://www.guardian.co.uk/commentisfree/2012/sep/09/america-refusal-extr...


    by A Guy Called LULU on Sun, 09/09/2012 - 10:30pm

    Unfortunately,  if the decision comes to appeal, recent decisions have generally favored the government position.


    by rmrd0000 on Mon, 09/10/2012 - 8:19am

    Yes, the judicial branch has become most obsequious to the overreach of the domineering executive branch.

    That's why it's incumbent on us to demand the asshole-in-chief uphold the constitution, whatever party he's from. Because if the President tells the government to stand down in these cases, it will. We saw that with DADT and didn't see that with medical marijuana.* But if the government's overreach is greeted as ho-hum from the President's own party, well, it's already rigged - many of these judges & DAs already came out of the Karl Rove/Alberto Gonzales conservative-litmus-test-approval-program. 

    *And as Empty Wheel notes, remember when Obama noted FISA was imperfect, stating he would have written it differently? Well that was then, this is now - seems it's perfect or as good as it's going to get. And how about that "listen to your concerns" and "ask you to play your part"? Campaign boiler plate it seems. Can't be seen to be soft on eavesdropping, can we? What would the neighbors say? (oh wait, we know, because we have that recording over here in section 14D3 on Bellweather Drive)


    by PeraclesPlease on Tue, 09/11/2012 - 4:45am

    Change comes from the people, not the parties. It took pressure from the electorate to get the DOJ up to speed on voter suppression. It is taking ongoing voter education to make sure voters have the necessary documents in those states with intact voter ID laws to make sure the target population can vote. Democracy is not easy. On election day, we still have to combat voter intimidation by vigilantes from "True The Vote".

    The electorate has to act. Name-calling the President, Democrats, Republicans, etc.on a blog may be a pressure relief, but in the end does nothing. If you're angry, organize. There are others who share your concerns. What form of protest are they mounting? The media cannot be expected to carry the message.

    Turn anger and words into action.


    by rmrd0000 on Tue, 09/11/2012 - 8:50am

    The same type of forces that are putting money into voter suppression and intimidation are putting money into state judiciary races. Courts that decide that voter ID laws to prevent "voter fraud"can be enacted even in the absence of a single documented case of voter fraud (Indiana) often are the pool of jurists who will be candidates for Federal courts. The money in the judicial races results in biased jurists getting elected. 

     


    by rmrd0000 on Tue, 09/11/2012 - 9:08am

    Somehow I thought we elected politicians to do/change something.

    I thought being angry/organizing was to get someone elected so they would.... do something.

    So why bother voting at all? Just protest/organize against whoever's in office until the asshole does what you want. All that ballot box stuff? Just a waste of time & energy. #Occupy Their Corridor.


    by PeraclesPlease on Tue, 09/11/2012 - 11:40am

    Voting is just the first step in participating in a Democracy. Politicians can't read minds. Drone attacks are argued to put fewer troops at risk. Others argue that drones kill innocent people. Families with relatives in the military might support using drones. Others who support the military might argue that the drones do more harm by killing civilians. In a democracy both sides have to argue what is  right. The politicians should respond to the public will. 

    Women demanding the right to vote did not wait for politicians. Workers demanding appropriate wages and workplace safety did not wait for politicians.

    You can argue that the GOPNis so crazy because they openly appealed to crazy voters. The wingnuts in Congress were sent by wingnut voters. If you want a voice in a democracy, you better stop just relying on politicians to do the right thing and bow to your will.

    It is more likely that a generic Democrat will support stronger foreclosure protection, but you have to yell in their ear to get it done. They are hearing from a myriad of voices telling them what the " right thing to do" might be.


    by rmrd0000 on Tue, 09/11/2012 - 12:30pm

    Can't read minds? Obama apologized for voting for FISA July 2008. He ran on closing Gitmo. Medical marijuana is the law in many states. 

    Should we be like suffragettes and get our heads beaten and be brutally held by the administration to force him to act? Maybe when people see us piled up like at Abu Ghraib, the president will change his mind, evolve on the issue?

    Funny idea of participatory democracy.


    by PeraclesPlease on Tue, 09/11/2012 - 12:42pm

    Oops, another Gitmo inmate dies.

    Shame he was innocent and we overrode a judge's order to release him. "National security" now means protecting us from innocent brown men of the wrong religion. They hate us for our... unreason.


    by PeraclesPlease on Tue, 09/11/2012 - 2:16pm

    We disagree strongly about voters putting some skin in the game. Stop and frisk of innocent citizens requires legal and public resistance. After the shooting in Aurora, Colo,, the mayor of San Francisco thought that Stop and Frisk was a rational response. It was only public protest that halted the program from being started.  The mayor thought that he was doing the right thing.

    Protest is a lot easier today than anything faced by suffragettes. Want certain flags off of government property. Protest. Want to preserve a woman's right to choose? Protest. When challenged stand up like Shirley Sherrod and Sandra Fluke.

    Freedom is not free.

    Because the attack on freedom is multi-layer from due process, to right to choose, to judicial bias, to voter suppression, to voter education, to environmental issues, etc, we need an active citizenry.


    by rmrd0000 on Tue, 09/11/2012 - 2:39pm

    I think that you are in an argument for argument's sake mode. I believe that citizens have remain vigilant about what they want. There is no magic wand that makes things better without struggle. 

    If you think that merely voting ends all other requirements in a democracy, good luck.


    by rmrd0000 on Tue, 09/11/2012 - 3:06pm

    Progressives have continued to protest incarceration without trial at Gitmo, targeted assassinations, raids on medical marijuana facilities, handouts to Wall Street, illegal foreclosures, a variety of other issues. 

    At the same time, if a President and his men can't understand basics like judicial process as noted in the Constitution, it's hard to squeeze justice of him no matter how much you protest.

    My other point was that a lot of people struggled to get this president elected - i.e. didn't just vote. It's one thing to get your legislation past the opposition - it's another thing if you have to struggle to get basic freedoms and rights understood by your own leader.

    But your points seem to be 1) I need to struggle more against Obama to be heard, for him to pay attention to my issues, but 2) I need to stop criticizing Obama because he's doing what he can.


    by PeraclesPlease on Tue, 09/11/2012 - 3:34pm

    My point is to actually get something accomplished.


    by rmrd0000 on Tue, 09/11/2012 - 4:32pm

    Let me clarify. A large part of Black Liberation Theology is that there are always battles to be fought. You assess how to organize and how to effect change. In most cases, you are working against larger and better funded opponents. But you continue the protest. You may have setbacks but you keep going. Despair is for the other guys.

    You can get stuck in the mire of shouting at your opponent or you can fight the needed battle. This is a difference between a John Lewis and a Cornel West. John Lewis talks about actions taken and is working with groups on combating voter suppression. John Lewis inspires. Cornel West talks about plutocrats and oligarchs but where is the lasting action?

    A basic message is "The Struggle Goes On". If you want to spend your effort focused on the failings of Obama, have at it. The opposition to voter suppression arose from the grass roots and grew against odds that should have been insurmountable. Will the GOP succeed in suppressing votes? Yes. Will they know that people protested? Yes.

    Are we depressed and disappointed? No. Too busy fighting and educating.

    You can complain about what you didn't get in the Affordable Care Act., or you can start planning the next step to get to Single Payer the inevitable outcome.

    If you think your protest didn't accomplish anything, change tactics and protest some more. Your opposition is not going to give up. Ever. If you are looking for easy victories and opponents who will not fight back against any progress, the other guys have already won.


    by rmrd0000 on Tue, 09/11/2012 - 5:03pm

    Protest is both easier and more difficult then in the suffragette times. When I read books like Jailed For Freedom one thing that struck me was the different interpretation of the right to free assembly. It was seen as a fundamental right that even relatively small groups could protest within sight of the White House such that those coming to do their daily business could see them. Even foreign country ambassadors or high ranking political figures. Now, with time, place, and manner restrictions protesters are simply shunted aside, out of sight out of mind unless the group is too large to be effectively hidden.

    So while there less harassment today and no one arrested need fear the brutal conditions imposed on the suffragettes up to forced feeding, the constraints make protests less effective.


    by ocean-kat on Tue, 09/11/2012 - 3:42pm

    Due process and judicial process are not one and the same

    It is true.  Both active military personnel and civilians are entitled to due process, but the judicial process the two are put through are entirely different.


    by Elusive Trope on Tue, 09/11/2012 - 10:57am

    We luv the troops so much, we've decided we want their court martials and MREs. Just tell me where to move this sand pile and I'll be happier than shit.


    by PeraclesPlease on Tue, 09/11/2012 - 11:41am

    That isn't the point - the point is that two citizens of the US are given entirely different judicial processes because of a difference (in this case it has to do with the fact one is in the military and the other is not), although both were given due process. 


    by Elusive Trope on Tue, 09/11/2012 - 3:34pm

    What due process did Abn Farhan abd al Latif receive?

    (and in this case it has to do with one being a dark-skinned Arab turned in with thinly concocted accusations...

    and then it has to do with "process" being arbitrarily overturned time and time again

    such as his release for being innocent...

    so what are Obama & Holder talking about? what "gough questions" are they asking and what "process" do they think they're abiding by?

    Willard: They told me that you had gone totally insane, and that your methods were unsound. 
    Kurtz: Are my methods unsound? 
    Willard: I don't see any method at all, sir. 


    by PeraclesPlease on Tue, 09/11/2012 - 3:57pm

    If you want to argue that certain individuals did not receive appropriate due process based on the particular judicial process that they received, then make that case.  You seem to want to go the easy route which ends up having trying to say that constitutionally due process and judicial process are somehow equated. 

    Now if you can give me a hard and fast constitutional definition of what "speedy" is when comes to a "speedy trial" then maybe you have a leg to stand on.


    by Elusive Trope on Wed, 09/12/2012 - 4:25pm

    What judicial process did they receive? What "due process" did they receive?

    And no, I didn't equate the two - I said the Bill of Rights starting at #6 talked about judicial process, the parts Obama & Holder omit - did you skip that part of my argument?

    The detainees were told they couldn't contest their detention in court, that habeas didn't apply, that charges didn't have to be filed, that their lawyers weren't allowed to see evidence or talk about their cases, and proscriptions against cruel & unusual punishment didn't apply.

    And if it's over 10 years to get to trial, it's not speedy.

    So explain what "easy route" I'm taking? Is there anything about indefinite detention while denying access to judicial review that bothers you?

    Did you grok that the guy when he did get judicial review, the judge observed he was innocent and that he should be freed, and someone still arbitrarily decided he was too "dangerous" to be released despite the charges being false.


    by PeraclesPlease on Wed, 09/12/2012 - 4:50pm

    Or to quote from your link on the Sixth Admendment

    In cases where excess publicity would serve to undermine the defendant's right to due process, limitations can be put on public access to the proceedings. According to Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986), trials can be closed at the behest of the government on account of there being "an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest."

    What are those higher values?  I would guess you would take the stand that such higher values do not exist, which is probably never see eye to eye.  I believe that society is always balancing the interests of the individual with the interests of the common good.  Neither is supreme, but both have to be taken into consideration.

    What has happened with the GWOT is that the common good has been elevated too high over the individual.


    by Elusive Trope on Wed, 09/12/2012 - 4:32pm

    WHAT TRIALS???? THERE ARE NO TRIALS!!!! THAT'S WHY HE KILLED HIMSELF!!! SIMPLY DETAINED FOREVER.


    by PeraclesPlease on Wed, 09/12/2012 - 4:52pm

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