- - Wednesday, July 6, 2016

Proponents of the Second Amendment right to keep and bear arms are invoking constitutional due process to defeat legislation that would prohibit persons on the government’s terrorist watch or no-fly lists from purchasing firearms. Due process, however, was crucified on a national security cross long ago.

Since 9/11, our multi-trillion dollar military-industrial-counterterrorism complex cultivated a risk-free mentality incompatible with due process. Illustrative were the “One Percent Doctrine” of former Vice President Richard Cheney, and surveilling the “not-yet-guilty” as related by Michael Hayden, who formerly served as Director of the National Security Agency and the Central Intelligence Agency, respectively.

Due process died from three specific post-9/11 wounds. First, the president was endowed with limitless authority to play prosecutor, judge, jury, and executioner to kill any person anywhere on the planet that he decreed was an imminent danger to national security based on secret, uncorroborated evidence provided by an error-prone intelligence community, including the falsehood that Iraq possessed weapons of mass destruction. These assassination victims were denied notice of the standards used to compile the White House’s “kill list,” an opportunity to respond, or an impartial decision-maker to decide whether they should live.

In other words, the executive branch is judge in its own cases in deciding on presidential assassinations, a violation of due process since Dr. Bonham’s Case in Great Britain more than four centuries ago. Moreover, there is no post-assassination opportunity for redress by the deceased’s family or estate in cases of mistake because the president invokes the state secrets doctrine to thwart judicial review.

The Constitution, of course, is not a suicide pact. If it were shown that unreviewable presidential assassinations were necessary for national survival, due process would bow. As President Abraham Lincoln rhetorically asked during the Civil War in defending his suspension of the writ of habeas corpus, “[A]re all the laws, but one, to go unexecuted, and the government go to pieces lest that one be violated.” But credible evidence that presidential assassinations have arrested or diminished the international terrorism threat is lacking. Indeed, they seemingly augment the threat by creating more terrorists than they kill because the president’s chronic targeting errors are exploited by Al Qaida and Islamic State to recruit new adherents.

Second, the president’s Terrorist Surveillance Program enlisted the military to conduct electronic surveillance against American citizens in violation of their Fourth Amendment rights to be let alone absent probable cause and a judicial warrant. Under the TSP, the surveillance targets were never notified, and the president invoked the state secrets doctrine to thwart any after-the-fact judicial redress for the government’s constitutional violations. After the TSP was abandoned, the president continued warrantless spying on citizens for foreign intelligence purposes under Executive Order 12333 with no expectation that the targets will ever be notified.

Third, the president imprisoned “enemy combatants” indefinitely without accusation or trial at Guantanamo Bay. But as Justice Antonin Scalia elaborated in Hamdi v. Rumsfeld: “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”

In sum, due process was killed in 2001 with overwhelming popular support, including liberals and conservatives, young and old, men and women, Republicans and Democrats. If the president can kill you on his say-so alone, it seems absurd to contend that he cannot prevent you from buying a gun by placing you on a terrorist watch or no-fly list on his say-so alone. The greater power includes the lesser.

The military-industrial-counterterrorism complex teaches that it is better to inflict massive injustice than to take a measured risk of being the victim of injustice. Until that teaching is defeated, due process has no chance of resurrection.

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