I know this is a hot topic, but I'm curious what other attorneys think about Eric Holder's position on the drone killings of American citizens overseas. What is the difference between due process and judicial process?
Holder's analysis in the constitutional context centers around the executive powers of the president under Article II and the war powers of congress specifically and the federal government generally under Article I, Sec. 8. It seems a bit overbroad from my view as it would appear to deny to American citizens due process. This of course begs the question of what process is due when Americans are abroad, is it the same as within the territorial jusridiction of the U.S.? A feature consistent among presidents, irrespective of party has been a tendency to try to expand executive powers, especially in the name of national security.
Due process (which I will abreviate from here as DP) is a group of rights, and a term of art among legal professionals for those rights. They can be divided broadly into two groups; Substantive DP (such as speech, religion, assembly, property [sometimes expressed as privacy], the right to parent etc. . .), and Procedural DP (largely focusing on the criminaly acused but applicable to all who might be called into court, including civil cases). Judicial process is not a term generally used but seems to fit within procedural DP.
I hope this helped.
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Of course, the first thing to remember is that the opinion of an attorney is only an opinion. If a case is brought to court, a judge or judges will decide what is legal, and my opinion will not carry much weight, if any.
That being said, the USG has the constitutional authority to protect national security by use of violence. So, suppose that in 1945, Pres. Truman had known there were some US citizens in Hiroshima. That would not have affected the legality of his decision to bomb.
If the US citizen is the target of a drone raid, that would probably be illegal. If the US citizen is not the target, then the action would probably be legal under US law, even if the action poses a risk to the health or safety of the citizen.
In other words, someone like Osama Bin Laden could not have protected himself from US attack by the expedient of putting a US citizen between Bin Laden and the US military, and subjecting that citizen to the danger of death in case of attack. If that kind of protection were allowed, kidnappings of US citizens would skyrocket, as an effective means of protecting oneself from the US military.
Whether the military action is legal or not might be a subject of debate outside of court, but if someone were to take the matter to court, the court in my view would probably rule that the constitutional authority of the President regarding war does not permit subjecting his decisions in that regard to judicial review. In other words, my opinion is that if someone did take such a matter to court, the court would decide not to decide, and declare that the matter is up to the executive branch of government.
If and when the bombs start falling, the people placed in danger will not get due process, or judicial process, because the USG will not go to court before bombing, and the person placed in danger will have no time to go to court.
Judicial process simply means a procedure where decisions are made in court. Due process means that the court procedures will meet a certain minimum standard of fairness as established by legislation or the courts. If a case goes to court, but the judge is unfair, then the party will have had judicial process, but not due process.
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