Due Process Is Fading Away. Thank the National Security State

From Jose Padilla, to Anwar al-Awlaki, to tens of thousands on the no-fly list, the impulse of the national security state is to institute the principle that accusation equals guilt

Read Scott Horton's new book Fool's Errand: Time to End the War in Afghanistan

Equating mere allegations of misconduct with definitive evidence is a growing habit in the United States. That tendency is most prevalent regarding national security matters, and the trend has been building since the onset of the so-called war on terror following the 9-11 attacks. Conservatives are especially prone to assert that “terrorists” are not entitled to constitutional rights, even if they are American citizens. The obvious problem with that argument is that until a fair and impartial trial is held, the individuals in question are merely accused terrorists. The whole point of due process is to determine whether a defendant is guilty or not.

Alarmingly, George W. Bush’s administration asserted the authority to jail suspected terrorists without trial or even a hearing before an independent tribunal.  In the case of Jose Padilla, an American citizen apprehended at Chicago’s O’Hare International Airport, the government designated him an “enemy combatant” and held him (as well as inflicted torture) for nearly four years at a military prison in South Carolina before bringing charges to a grand jury. Even then, the administration’s belated application of due process occurred only in response to the U.S. Supreme Court’s prodding.

It would be a mistake, though, to assume that only right-wing leaders embrace the notion that accusation equals guilt. The Obama administration escalated its predecessor’s contempt for due process. President Bush merely asserted his alleged authority to imprison American citizens without trial. President Barack Obama asserted an authority to execute such people without trial. That point was underscored when he authorized a September 2011 drone strike that killed radical Islamic cleric Anwar al-Awlaki, an American citizen, in Yemen. A separate strike the following month killed Alwaki’s 16-year-old son.

There is little doubt that the elder Awlaki was a committed terrorist. (The indications regarding his son are less clear.) But that’s really not the point. Giving the president of the United States the power to execute an American citizen based on nothing more than his determination (or more accurately, a determination by bureaucratic appointees) that the individual is guilty of terrorism sets a horrifying precedent. It is the ultimate in the accusation-equals-guilt thesis, with devastating consequences. An American’s right to life would then be wholly dependent not only on the reasonableness, but the infallibility, of U.S. leaders. The republic’s founders knew better than to rely on such factors for guaranteeing liberty.

The erosion of due process in the name of national security continues to spread. People are placed on the arbitrary terrorist watch list, and its subset, the “no-fly” list, based on the most opaque criteria. Most cannot even discover through legal proceedings how or why they were marked for scrutiny and restrictions. And it is a list riddled with errors. Individuals prevented from flying have included several pre-teen children and California Republican State Senator (now U.S. Representative) Tom McClintock.  Even the late U.S. Senator Ted Kennedy was repeatedly flagged for additional screening because of faulty information.

Proponents of the accusation-equals-guilt thesis apparently are not content with violating an implied constitutional right to travel unhindered in the United States. Gun control advocates now favor using the terrorist watch list to bar gun purchases. Last year, congressional Democrats, including Senators Diane Feinstein and Charles Schumer, pushed legislation to impose such a restriction, a move that would deprive citizens of an explicit constitutional right under the Second Amendment. Fortunately, the Senate rejected their measure, but the sentiment in favor of using the no-fly list for that purpose continues unabated in progressive circles.

The growing, casual indifference to basic due process standards threatens liberties that have been hard-won over centuries since the Magna Carta. It is imperative to establish an unyielding standard that distinguishes mere allegations from proof of guilt. Everyone, even the most suspicious or unpleasant people, are entitled to the presumption of innocence until guilt clearly has been established. We erode that standard at our great peril.

Reprinted with permission of the CATO Institute.

- Advertisement -
Read Scott Horton's new book Fool's Errand: Time to End the War in Afghanistan

1 COMMENT