Furthermore, what holds the Executive in check is the combined vigilance of Congress and the Judiciary.
The Judiciary must show reasonable deference to Congress when it comes to defining such things as "due process". If Congress chooses to create a due process in which it seems very easy for the Executive to get its way (e.g. the FISA court), on what legal basis is a sitting judge supposed to stand in the way? Unless it is completely obvious by existing legal precedent, a federal judge might rightly suppose it is the job of the Appellate and SCOTUS to define any new yardsticks.
FISA courts, PRISM, NSA, drone assassinations,... Congress holds in their hands the power to define the terms of the debate. That they choose not to is simply because the minority and majority leadership in both houses of Congress more greatly fear having to explain their own position to the American people, than they fear any particular arguable abuse by this president.
The Judiciary must show reasonable deference to Congress when it comes to defining such things as "due process". If Congress chooses to create a due process in which it seems very easy for the Executive to get its way (e.g. the FISA court), on what legal basis is a sitting judge supposed to stand in the way? Unless it is completely obvious by existing legal precedent, a federal judge might rightly suppose it is the job of the Appellate and SCOTUS to define any new yardsticks.
FISA courts, PRISM, NSA, drone assassinations,... Congress holds in their hands the power to define the terms of the debate. That they choose not to is simply because the minority and majority leadership in both houses of Congress more greatly fear having to explain their own position to the American people, than they fear any particular arguable abuse by this president.