Tag Archives: due process

RIP Due Process

During my tenure as a college professor, I taught graduate and undergraduate classes in Law and Public Policy through what I called a “Constitutional lens.” I was convinced–and remain convinced–that policy decisions unconnected or antagonistic to the country’s underlying legal framework are illegitimate, and that the public affairs students who would become police officers, public managers or legislators needed an education grounded in the Constitution and Bill of Rights.

When we came to the 4th and 5th (and 14th) Amendments, the lessons revolved around the purpose and definition of “due process.” I used to introduce that discussion by drawing two circles on the blackboard (or later, the whiteboard..)–one large circle, which I labeled “the 500 pound gorilla” and a much smaller one labeled “the individual.” As I would proceed to explain, due process guarantees were intended to level, to the extent possible, the mismatch between the power of the 500 pound gorilla (the government), and the resources of far less powerful individual citizens–to require the government to prove its right to deprive a citizen of either  liberty or property.

The Fourth Amendment is considered one of the due process Amendments. It requires that the government have probable cause to arrest a citizen. The courts have (until now) defined probable cause as sufficient, reasonable, articulable grounds to believe that a crime has been committed, is being committed, or will be committed, in order to justify an arrest, search, or issuance of a warrant. Hunches or suspicions aren’t sufficient–and until this year, arresting someone solely on the basis of their identity would constitute a clear violation of the Fourth Amendment.

There are three kinds of due process recognized in American jurisprudence: criminal due process, civil due process, and substantive due process. I have written extensively about the current attack on substantive due process, which limits the areas of our lives in which government can properly intervene. When it comes to criminal due process, legal scholars frequently use the phrase “fundamental fairness” to summarize the elements intended to provide an accused person with a fair hearing, including a trial overseen by an impartial judicial officer, the right to an attorney, the right to present evidence and argument orally, the chance to examine all materials relied upon by the prosecution, the right to confront and cross-examine adverse witnesses, and the right to appeal an adverse result.

In my undergraduate classes, I sometimes used a tape from an episode of “Star Trek: Deep Space Nine” (yes, I’m a nerd) to introduce due process. In that episode,  Miles O’Brien, the station’s Chief Engineer, is arrested by Cardassians (the series’ aliens) while on a vacation. The Cardassian system is the mirror opposite of ours–O’Brien isn’t told what he was accused of, his lawyer is appointed by the state to “make the case” for his eventual execution (which was scheduled before the trial began), the Judge was also the prosecutor, and so forth. My students would be reliably outraged at the obvious unfairness of that system, and that outrage led to thoughtful and productive discussions about what a truly fair trial would look like and the reasons for the multiple requirements of “due process of law.”

The current, corrupt Supreme Court is allowing the Trump administration to eviscerate those constitutional guarantees. In Noem v. Vasquez, the Court lifted a lower court injunction against patently unconstitutional arrests of people believed to be non-citizens, essentially holding that ‘looking like an immigrant’ can now be considered probable cause for stop, arrest, and detention.

It isn’t just Supreme Court rulings diametrically opposed to years of precedent.

The Prospect, among other sources,  has reported that ICE deliberately uses bureaucratic excuses and location transfers to isolate detainees both from their families and from their lawyers. Only 23 percent of defendants in immigration court even have an attorney in court to represent them. (Unlike in criminal courts, defendants in immigration court aren’t entitled to representation.) But those who do have attorneys are struggling to connect with them. The Prospect report documents the impediments ICE has intentionally constructed to keep these detainees in situations the report describes as “punitive and desperate” and to deprive them of due process.

So here we are. We have a Supreme Court untethered to long-standing constitutional guarantees, and a federal agency committed to denying their indiscriminate targets anything resembling fundamental fairness.

We’ve unleashed the 500-pound gorilla. I’m glad I’m no longer teaching….

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The Embarrassingly Ignorant Micah Beckwith

I’m not sure Micah Beckwith knows what “due process” means. In fact, I’m pretty sure he doesn’t.

Indiana media has reported on our “Christian” Nationalist Lieutenant Governor’s most recent display of constitutional ignorance–his insistence that people in the U.S. illegally are not entitled to due process–and his ludicrous comparison of those immigrants to the Japanese who bombed Pearl Harbor. (Hey–no one ever accused Beckwith of logic…)

The Constitution clearly grants the right to due process to “all persons” on American soil, so Beckwith’s assertion is flat-out wrong. But his statement hints at an even more egregious ignorance: I’m pretty sure that he couldn’t define “due process” if his life depended on it.

Let me clarify it for Beckwith and his equally ignorant ilk.

Let’s say authorities take a person into custody, in the belief that the person is undocumented. Before that person can be confined or expelled or otherwise sanctioned–due process simply requires the government to demonstrate that the person is, indeed, undocumented, that they’ve got the right guy. The government needs to prove that the arrest was proper–not a mistake. If there is no requirement to demonstrate the lawfulness of an arrest or the accuracy of an identification–if it is simply adequate to accuse any detained person of being “illegal”–or guilty of any other crime–without offering probative evidence that the label is correct, then anyone can be swept up by a fascist government and deported or imprisoned…or “disappeared.”

Even Micah Beckwith.

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Poison Gas

I have repeatedly cited the observation by a noted civil libertarian to the effect that poison gas is a great weapon–until the wind shifts.

In case the clear meaning of that observation eludes anyone, it is a recognition that ignoring the rule of law in order to punish people you dislike is a very dangerous tactic, because when those disliked folks gain power–as they inevitably will– they can turn those same illegal tactics against you.

It is abundantly clear that Trump and his MAGA minions don’t understand the operation of due process guarantees. (Granted, Trump is embarrassingly ignorant of all civil liberties, and indeed, ignorant of how the world works.) That ignorance is shown by the increasing hysteria with which the administration keeps asserting that Abrego Garcia is “a bad dude,” and that bad dudes aren’t entitled to due process.

There is substantial evidence to rebut the administration’s accusations about Garcia, but their probity is totally irrelevant. Giving an accused individual due process requires that the government prove its allegations in a court of law. If Garcia is really a gang member or otherwise unfit to live among us, the state should be able to demonstrate that fact. A grant of due process doesn’t keep authorities from expelling bad guys–but it does require government to provide the evidence upon which they are painting an individual as someone who should be expelled from our shores.

If a mere accusation is poison gas sufficient to justify deportation, none of us is safe. The accusatory finger can be pointed at anyone, for any reason. That’s why Talking Points Memo–among many others–has  editorialized about the extreme importance of this case.

As best we can tell, Abrego Garcia was on the third deportation flight from Texas to El Salvador on March 15. The other two flights contained people deported under the Alien Enemies Act without any judicial review. The AEA deportations were the first to be challenged in court, which led to the big blow up in U.S. District Judge James Boasberg’s court about whether the Trump administration had willfully violated his order blocking them.

It was in the midst of that legal battle that the case of Abrego Garcia’s mistaken deportation emerged, an error the Trump administration admitted, serving as the perfect signifier for why due process is so essential. If Abrego Garcia could be deported in error – and in violation of an existing order by an immigration judge – isn’t that precisely why the law offers procedural protections that all of the deportees that day were entitled to at some level?

TPM noted that the administration’s positions inside the courtroom have been at odds with its public statements. It  has gone from admitting the deportation was in error to the launch of “a full-scale propaganda campaign from the White House on down, sowing misinformation, inventing facts, smearing Abrego Garcia with falsehoods, and furiously trying to muddy the waters to obscure its own malfeasance.”

The editorial quoted Timothy Snyder, a noted scholar of tyranny:

The president defied a Supreme Court ruling to return a man who was mistakenly sent to a gulag in another country, celebrated the suffering of this innocent person, and spoke of sending Americans to foreign concentration camps.

This is the beginning of an American policy of state terror, and it has to be identified as such to be stopped.

Americans who have been following the news are aware that Garcia is only the most prominent example of extra-legal apprehensions and deportations, which have been accelerating under this lawless regime. This reality–among other Trump acts in defiance of the rule of law–has brought us to the current constitutional crisis, as the administration stonewalls and evades, and refuses to submit to court orders.

The Republicans in the House and Senate could end this crisis. Even if they failed to impeach the mad king, they could assert their powers under the Constitution and take back the authority that Trump has usurped–authority that is rightfully theirs. Their failure to do so–the cowardice preventing them from even publicly protesting Trump’s blatantly illegal, unconstitutional and immoral behaviors–is a betrayal of immense proportions. Assuming we emerge from the current abyss, these Republicans will go down in history as weaklings and traitors whose failure to honor their oaths is a repudiation of the values upon which this country was founded.

It will also be seen as an invitation to turn the poison gas in their direction when Democrats gain control. Of course, if that happens, we really will have lost the Founders’ America.

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Process And Progress

At a recent Town Hall in Indiana, Congresswoman Victoria Spartz responded to a citizen’s question/challenge by asserting that “people who break the law aren’t entitled to due process.” Spartz has a long history of ignorance and bizarre behaviors, but this particular example–while undoubtedly endearing her to an unconstitutional administration–reflected her incredible unfitness for public office.

Why is due process an essential component of the rule of law?

David French recently addressed that question in a New York Times essay,

The defense of civil liberties is hard even under the best of circumstances. Thousands of years of human history tell us that we are not naturally inclined to protect the rights of our opponents, much less the rights of people we believe to be violent and dangerous.

That’s why the defense of the Bill of Rights requires both practical and moral arguments. The practical defense is often the most effective: Protect the rights of others that you would like to exercise yourself. After all, one day you might not be in control.

In other words, poison gas is a great weapon until the wind shifts…

French goes on to argue that the best arguments for due process transcend self-interest–that due process guarantees protect “the inherent dignity and worth of every human being.” 

Americans have provided due process even to the nation’s wartime enemies. French quoted a federal judge for the travesty that Nazis had been given better treatment under the Alien Enemies Act than people suspected of being members of a Venezuelan gang.

Numerous media outlets have reported on the arrest and rendition of Kilmar Abrego Garcia, who was accused of gang membership and sent to prison in El Salvador. Abrego Garcia was in the U.S. legally, and in 2019 a court had barred the government from deporting him to El Salvador. An official of ICE admitted, under oath, that he’d been deported due to “administrative error,” but claimed the government couldn’t get him back “because he is no longer in U.S. jurisdiction.”

The judge found that “there were no legal grounds whatsoever for his arrest, detention, or removal…. [H]is detention appears wholly lawless” and “a clear constitutional violation.” 

If the government can simply assert–without the need to provide even flimsy evidence–that anyone they consider offensive or inconvenient is a “criminal,” then no one is safe.

America’s darker history is instructive: those most aware of the danger posed by lack of due process are the people who remember Jim Crow, when Black Americans in the South received less protection than the Nazis referenced by the judge. 

A guest essay in the New York Times made that point graphically. 

There’s something about this moment that is shocking to many in my orbit. Watching a security camera video of a graduate student — from Tufts, my alma mater — who is legally in the country being picked up in broad daylight by masked government agents and hustled into an unmarked car. Witnessing people lose their jobs with no warning or justification. The presumption underlying these attacks on diversity, equity and inclusion programs that somehow only white men are qualified to do many jobs. Denying lawyers access to federal buildings so they can’t represent their clients properly. Seeing communities from Cincinnati to El Paso live in a state of fear from the police and bands of vigilantes.

“How can this be happening in America?” these people ask. “This is not the country I know, the country of rights and laws and due process.”

Needless to say, these people are almost all white and liberal and are not used to feeling this fear of arbitrary, brutal state authority. But this moment, the one that was explicitly promised by Project 2025 and Donald Trump when he was a candidate, looks a lot like what my grandmother experienced every day for much of her life.

What Indiana’s civically-illiterate Congresswoman fails to understand is that due process for people accused of criminal activities is a foundational concept in the U.S. Constitution. It is a principle of fundamental fairness–a requirement that  government  demonstrate an accused’s guilt with probative evidence before imposing punishment.

Adherence to due process for everyone is what makes social progress possible. It is what protects Americans against the would-be autocrats who want to run roughshod over the individual liberties of those who oppose them. 

Due Process is mentioned twice in the Constitution — in the Fifth and Fourteenth Amendments, both of which prohibit government officials from depriving an individual of “life, liberty, or property without due process of law.” 

Free speech and due process stand in the way of Project 2025. We need to defend them from MAGA’s ignorance and malevolence. 

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Welcome To The Gulag

A friend of mine recently called to tell me a chilling story. He has a family member who teaches middle-schoolers in our city’s public school system. The students come from a relatively poor area, and are largely Hispanic ten and eleven-year-olds.

And for the past few weeks, his classroom has been visited, sporadically, by ICE.

The ICE officers who come to his classroom have a standard routine; they take a student–a ten or eleven-year-old–out of the classroom and the school for “questioning” of some sort. Sometimes, that student is returned; sometimes–presumably, if it is determined that he or she is undocumented–that student never returns. In the latter case, according to what my friend’s relative has been told, the student, along with his or her parents, has been summarily deported.

My friend was appalled. His relative, the teacher, is infuriated, but helpless.

We don’t know anything more about this invasion of a public school classroom. We don’t know whether the child or the parents are afforded any sort of due process, or whether they have the services of legal counsel. (According to a recent article, routine denial of due process in immigration cases is an intentional part of Trump’s effort to undermine the rule of law.) We don’t know whether they are simply taken, like the widely-reported case of the Massachusetts graduate student with a valid visa who was accosted by plain-clothes ICE officials on a city street, arrested and flown to Louisiana for the “crime” of writing an op-ed with which our current dictator disagreed.

Undocumented immigrants have, by definition, broken the law. They’ve come to the United States without submitting themselves to our incredibly complicated and lengthy legal immigration process. In most cases, that is the only law they’ve broken. The middle-schoolers who are being “disappeared” from the classroom of my friend’s relative are innocent of any intentional lawbreaking, as are the thousands of DACA kids who were brought here as small children.

It is one thing to agree with the administration that undocumented immigrants who have been convicted of crimes while on our soil should be deported; it is another thing entirely to stand by and watch hard-working and otherwise law-abiding people–and their children–being summarily snatched from their lives and their classrooms and taken…where? How?

All my friend really knows is what his teacher/relative is experiencing. His relative doesn’t know any more than the fact that ICE periodically appears in his classroom, takes a child away, and sometimes brings that child back.

And sometimes, doesn’t.

But thanks to the media, we do know about the graduate students (lovingly referred to as “lunatics” by Marco Rubio, our new and especially despicable Secretary of State) who are being rounded up and stripped of their entirely legal residency for the “crime” of expressing opinions with which that our madman President disagrees. Despite assertions to the effect that these students have assisted Hamas and other terrorist organizations, none of them has been credibly accused–indeed, accused at all– of any such activity. No evidence of terrorist support has even been offered. It has become abundantly clear that the only “aid and comfort” offered has come in the form of opinions–the expression of which, at least until the advent of our current fascist regime, has been constitutionally protected.

Is it possible that my friend, his relative, and yours truly are jumping to unwarranted conclusions? All we know, as I’ve said, is that ICE is routinely visiting a largely Hispanic public school classroom, taking individual students out for interrogation, and returning some but not all of them. Perhaps the fact that this is occuring during a time when we are seeing reports of unconstitutional behaviors nationally is making us more suspicious than we would otherwise be.

Perhaps.

Since I have only the information I have shared above, I’m asking any of my readers who might have additional information to share it. (I doubt any ICE personnel read this blog, but if there is such a reader, I would especially welcome a comment correcting any erroneous suppositions. I would be extremely happy to have those suppositions corrected–and the picture I’ve formed of terrified ten-year-olds expunged.)

If, however, the conclusions we’ve reached, based upon what we do know, turn out to be accurate, that would suggest that Trump has taken the U.S. much farther down the path to a fascist autocracy than most of us have thus far recognized.

I hope to see a lot of you at tomorrow’s protest….

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