Due Process

Don't Abandon Due Process, Not Even For Terrorism

Sacrificing liberty in times of fear will not keep citizens safe.


Rights are not earned.
Richard B. Levine/Newscom

"No person shall…be deprived of life, liberty, or property, without due process of law…" — Fifth Amendment to the U.S. Constitution

The clash in American history between liberty and safety is as old as the republic itself. As far back as 1798, notwithstanding the lofty goals and individualistic values of the Declaration of Independence and the Constitution, the same generation — in some cases the same human beings — that wrote in the First Amendment that "Congress shall make no law…abridging the freedom of speech" enacted the Alien and Sedition Acts, which punished speech critical of the government.

Similarly, the Fifth Amendment's guarantee of due process has been ignored by those in government charged with enforcing it when they deal with a criminal defendant whom they perceive the public hates or fears. So it should come as no surprise that no sooner had the suspect in the recent New Jersey and New York City bombings been arrested than public calls came to strip him of his rights, send him to Gitmo and extract information from him. This is more Vladimir Putin than James Madison.

I have often argued that it is in times of fear — whether generated by outside forces or by the government itself — when we need to be most vigilant about protecting our liberties. I make this argument because when people are afraid, it is human nature for them to accept curtailment of their liberties — whether it be speech or travel or privacy or due process — if they become convinced that the curtailment will keep them safe. But these liberties are natural rights, integral to all rational people and not subject to the government's whim.

I can sacrifice my liberties, and you can sacrifice yours, but I cannot sacrifice yours; neither can a majority in Congress sacrifice yours or mine.

The idea that sacrificing liberty actually enhances safety enjoys widespread acceptance but is erroneous. The Fort Hood massacre, the Boston Marathon killings, the slaughters in San Bernardino and Orlando, and now the bombings in New Jersey and New York all demonstrate that the loss of liberty does not bring about more safety.

The loss of liberty gives folks the false impression that the government is doing something — anything — to keep us safe. That impression is a false one because in fact it is making us less safe, since a government intent on monitoring our every move and communication loses sight of the moves and communications of the bad guys. As well, liberty lost is rarely returned. The Patriot Act, which permits federal agents to bypass the courts and issue their own search warrants, has had three sunsets since 2001, only to be re-enacted just prior to the onset of each — and re-enacted in a more oppressive version, giving the government more power to interfere with liberty, and for a longer period of time each time.

We know from the Edward Snowden revelations and the National Security Agency's own admissions that the NSA has the digital versions — in real time — of all telephone calls, text messages and emails made, sent or received in the U.S. So if the right person is under arrest for the bombings last weekend, why didn't the feds catch this radicalized U.S. citizen and longtime New Jersey resident before he set off his homemade bombs? Because the government suffers from, among other ailments, information overload. It is spread too thin. It is more concerned with gathering everything it can about everyone — "collect it all," one NSA email instructed agents — than it is with focusing on potential evildoers as the Fourth Amendment requires.

Why do we have constitutional guarantees of liberty?

The Constitution both establishes the federal government and confines it. It presents intentional obstacles in the path of the government. Without those obstacles, we might be safe from domestic harm, but who would keep us safe from the government? Who would want to live here if we had no meaningful, enforceable guarantees of personal liberties? When our liberties are subject to the needs of the police, we will end up in a police state. What does a police state look like? It looks like the Holocaust and communism.

Everyone who works in government has taken an oath to uphold the Constitution. Hence, it is distressing to hear lawmakers calling for the abolition of due process for certain hateful and hurtful defendants. Due process — fairness from the government, the right to silence, the right to counsel and the right to a jury trial with the full panoply of constitutional requirements and protections — is vital to our personal liberties and to our free society as we have known it.

If anyone who appears to have been motivated to attack Americans or American values based on some alleged or even proven foreign motivation could be denied the rights guaranteed to him under the Constitution by a government determination before trial, then no one's rights are safe.

The whole purpose of the guarantee of due process is to insulate our liberties from subjective government interference by requiring it in all instances when the government wants life, liberty, or property — hence the clear language of the Fifth Amendment. The star chamber suggested by those who misunderstand the concept of guaranteed rights is reminiscent of what King George III did to the colonists, which was expressly condemned in the Declaration of Independence and which sparked the American Revolution.

Supreme Court Justice Felix Frankfurter once wrote that the history of American freedom is, in no small measure, following fair procedures — which means enforcing the guarantee of due process. Without due process for those we hate and fear — even those whose guilt is obvious — we will all lose our freedoms.


NEXT: What Should We Do About Suspicious Muslims?

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  1. Good stuff. Trump’s appeal is that he will eviscerate Constitutional protections – he has obviously given a lot of thought to how to systematically attack every part of it. Clinton is not as bad. The difference will be obvious after the first debate. If Trump is elected, this will be interpreted by many as a mandate to take away our rights. That is why they get so excited at his rallies. The key is to elect Clinton along with principled conservatives and ensure gridlock until the presidency can be handed over to its rightful heir – Rand Paul (or Austin Peterson?).

    1. Also I would add that the BLM style protests actually reinforce Americans’ appreciation for basic rights – free speech and assembly. If Clinton is listening – this is an opportunity for you.

      Jill Stein reluctantly approves this message.

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      2. you need to have someone pinch you hard where it hurts, to wake you up to reality. BLM style protests reinforcing Americans’ appreciation for basic rights? Perhaps by suffering from their removal more and more are appreciating the rights now gone… like the business owners whose places have been trashed and/or burned to the ground…. CVA in Baltimore, the hair salon in Ferguson.. both having been denied the ability to protect their property by the incompetent/corrupt “lw enforcement” personnel who stood idly by doing nothing ,or wilfully chose to stand down and do nothing. This is the direct result of government officials, having sworn their oaths to protect/defend the Constitution, wilfully choosing to violate that oath of office. They should all be charged with perjury in malfeasance of oath. With all due process rights retained, mind you. The mayoress of Baltimore deciding to let them have their space to destroy…..

    2. Trump’s appeal is that he will eviscerate Constitutional protections… Clinton is not as bad.

      Holy fuck.

      1. I have different primary concerns about Trump and Clinton. I see Trump as more likely to make ostentatious display’s of executive power grabs over whatever short term issue catches his fancy. Clinton I see doing those things more quietly but also appointing judges who are likely to eviscerate the first amendment, second amendment etc. This whole thing is like a premise for a dark comedy.

        1. Clinton will also be assisted and enabled by a compliant media and entrenched bureaucracies as well as by congress. Trump will be opposed by all of these.

          1. True. The flip side of that is I do think Trump is more likely to do something completely off the wall.


          2. Trump seems to have law enforcement bureaucracies on his side.

        2. I don’t really see how Trump can be trusted to appoint judges who will protect constitutional amendments. He’s taken stances shitting on almost every amendment in the bill of rights. The one where he’s probably most clearly better than Clinton (the 2nd), he’s still supported the watchlist ban, denying a constitutional right without due process or even being charged with any crime.

    3. Clinton is not as bad.

      Every time I think, “This sock puppet couldn’t possibly dream up anything stupider to troll with,” it proves me wrong.

    4. In discussing “reasonable gun control” and the second amendment right to keep and bear arms, Hillary Clinton stated ” . . . if there is such a right, it, like the whole constitution, is subject to reasonable regulation . . “. Most terrifying and explicit statement of her imperial ambitions I ever heard. Totally ignored by the media. A few commented on it regarding the 2nd amendment, but NOBODY on her feeling that the whole constitution is subject to her definition of “reasonable regulations”.

      1. I quoted that “regulation” utterance to an H supporter and she just smiled. Fucking chilling.

        1. I did the same. While he pointed out “well regulated” in the 2nd Amendment (and then refused to say that those words had meant in 1791), he ignored the main point.

        2. I quoted that “regulation” utterance to an H supporter and she just smiled. Fucking chilling.

          Those are the people that need to be fucking deported. Send them to Russia, Cuba, Venezuela or N. Korea. After a couple of years, see if they’re still as enthusiastic about the Total State.

    5. That book isn’t going to just magically finish itself, fuckface.

      1. Mikey, serious question – why are you so convinced that AM/dajjal is David Weigel?

      2. Mikey, serious question – why are you so convinced that AM/dajjal is David Weigel?

        1. I guess the squirrels would like to know as well.

        2. He’s his white whale.

          “A gold doubloon for the first man who first spies the acne’d liberal!”

    6. “Pay attention to meee!” the troll explained.

    7. Typical Progressive projection, this. Trump talks about actually USING the legal process to deport criminal non-citizens and exclude questionable refugees and he’s gutting the Constitution. Hillary say (of the Second Amendment) ” . . . if there is such a right, it, like the whole constitution, is subject to reasonable regulation . . “. and nobody on the Left bats an eye.

      Trump won’t be great for Constitutional Liberty, but Hillary in concentrated cyanide.

    8. Trump may be a clown and I do not know what he’s capable of, but Clinton has promised us she will continue the wannabe king’s efforts to eviscerate the Constitution by ignoring the fourth, fifth, and twentieth amendments and striving to pretend the second doesn’t exist.

      1. Also, he’s a freewheeling fraud, like Barnum whereas she’s a purse-lipped pious fraud, like Henry Ward Beecher.

      2. Trump has also promised to ignore many parts of the Constitution himself. I don’t see how that’s a point of difference between the two.

        Also, how are Clinton/Obama ignoring the Twentieth Amendment?

    9. Clinton is not as bad.

      You mean Hillary “all rights are subject to reasonable regulation” Clinton?

      That said, fuck them both (Clintrump and Trumpton) with a rusty chainsaw and then run what’s left through a woodchipper.

    10. What have you been reading? Or smoking? Trump has given no indication he’ll trach the Constitution. On the other hand, Hill has made it a strong point for most of her adult life that she hates the Second, and thinks government is supreme over all, having no restrictions. What SHE wants SHE will get…. she supposes.

      Clinton is diametrically opposed to any principled conservative I’ve ever heard……..

  2. Who would want to live here if we had no meaningful, enforceable guarantees of personal liberties?

    There’s land inside a certain beltway whose occupants seem to think it would be keen.

    But more importantly, a 10MB jpeg? Might be a new record.

    1. Time to admonish the interns for not scaling the pics.

      *grabs riding crop and Hugo Boss outfit*

  3. Everyone who works in government has taken an oath to uphold the Constitution. Hence, it is distressing to hear lawmakers calling for the abolition of due process for certain hateful and hurtful defendants.

    It’s even more distressing to hear such lawmakers are not subjected to due process for violating the oath.

  4. Any politician that firmly supports 2A is more than welcome to entertain any fantasies about the others

  5. Why do we have constitutional guarantees of liberty?

    Promises, not guarantees. Broken, broken promises.

    1. Government grants us those rights to further its purposes. I’ve actually been told that.

      1. I am sure you have heard that the Constitution is just some old piece of paper that is not relevant anymore? I’ve actually been told that.

      2. government GRANTS no rights. They are prior to any government, not dependent upon any government, and not subject to any government. They are OURS by right of our birth.
        Our Constituton merely names some of them, then commands government to protect them, to not encroach upon them, to preserve them. EVERY person who takes up any official position of power swears to perform according to this… protect and defend the Constitution… which names and guarantees those rights equally to all of us.

  6. Everyone who works in government has taken an oath to uphold the Constitution.

    When was the last time any of those clowns took their oath seriously?

    Looking at you, James R. fucking Clapper.

    1. Dude, it’s not a suicide pact.

      1. Then why do the people who keep saying that also urge we commit suicide?

        1. I’m sure that’s just a coincidence.

      2. That’s right, It’s not a suicide pact. Agents of the government will kill you to prevent you killing yourself.

        Agents of the government will also kill you to “protect” your rights under the Constitution.

        We are in this sinking ship whether you want to be here or not.

      3. Dude, it’s not a suicide pact.

        Yes, yes it is.

        1. The Civil War cemented that it is a suicide pact. States are not permitted to leave after 1865.

  7. Yeah it’s hard to see how either Clinton or Trump are better when it comes to the Constitution. Each one just wants to eviscerate different parts of it. Moreover, while Clinton is more openly hostile to the whole document, Trump is more openly ignorant of the whole document. Which is worse, shredding the Constitution because you hate it and want it to go away, or shredding the Constitution because you don’t care about it and don’t know the reasons for its existence anyway? Either way, shredding is shredding.

  8. +1. This is Napolitano’s best column in long time.

  9. First of all, I’d like to wish everyone a Happy Asshole Awareness Day! Sorry to crap on your all’s parade, but the Libertarian “party” and the “movement” is like a self-help group for people who don’t do drugs…or atheists, because they don’t believe in anything, or fucktards who finally got tired of spending two hours a day jerking off, 6 hours watching “The News” (a.k.a. same shit, different day), and another 6-10 playing Fallout 4 on the X-Box, so they decide to jerk off for an hour, cut back to 5 hours of news, 4 hours of Fallout, and spend the rest of their waking hours reading and responding to this shit. End result: An even MORE angry, abusive asshole who focuses solely on his “Reason-able life,” unless, of course, he should spend even a portion of his worthless day verbally, financially, and emotionally abusing his formerly nice girlfriend and her child–all since he adopted his “new routine.” Thanks assholes. Try getting jobs. I’d say more, but I actually have to get back to work.

    1. I’m playing Borderlands 2, not Fallout 4. Get it right!!!

      1. That’s funny! Can I get your number?

          1. Please do…maybe I’ll get really lucky and you’ll one-up and throw in a couple ass-beatings!

    2. Don’t do drugs!!? Do you even know who our candidate is?

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  11. If the guy they have in the lockup IS the bomber in view, then due process will allow that to be proven beyond a reasonable doubt, and he can then be administered the appropriate punishment.(my personal take is that charages of treason need to be laid along with the rest of it, and the standard sentence for PROVEN treason is death.

    I’ve read our Constitution many times, and do not recall ANYWHERE in that document where it is stated that “keeping us safe” is the job of government…. with the one exception of “keeping us safe from FOREIGN INVADERS. this case, the San Bernardino shooters, for certain his “wife”, the illegal Mexican invader who shot and killed that woman in San Francisco, the “shoe bomber” and the “panty bomber” were all “foreign invaders” from whom our government FAILED’ to keep us safe. General safety in our streets is NOT the job of FedGov.
    On the other hand, protectingour LIBERTY is clearly and specifically the job of FedGov…. and they’ve failed miserably at that one.

    1. Meanwhile about a dozen honest harmless citizens rot in Portland jail cells, most in solitery confinement, awaiting their “trials” as due process has been tossed out the window and they’ve been falsely accused of various crimes stemming from their standing up to government hooh hahs actively destroying and threatening one of them who has done no harm. One of their number was assasinated in what is quite clearly a well-planned roadside ambush erected for that very purpose. He was murdered, others were put at serious risk of life and limb, being fired upon by government agents with no provocation or grounds.
      The same government charged wiht protecting our rights and liberties deprives men of them at will, the same government charged with “repelling foreign invaders” spends OUR tax money importing them in tens of thousands, forcing small communities to endure large numbers of them being dumped into their midst.

  12. Short version, Robespierre’s Law: The power you give government to do unto others will be used to do unto you.

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  16. Really Nice Post. Thanks for sharing with us.

  17. Judge Nap told us on The Daily Show, for those who had forgotten, that we are born with liberty. We are not born with security. How soon society forgets.

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