Due Process and the War on Terror

by Austin Raynor

The government’s infringement of constitutional rights in the name of the War on Terror, begun under Bush and now amplified under Obama, threatens to dismantle the constitutional system of checks and balances and demolish the procedural rights that ensure due process.

Almost every week a new rights-diminution is claimed by Congress or the President as a necessary sacrifice to defeat the terrorists. Disturbingly, however, mere suspicion of wrongdoing is increasingly used as a justification for abridgement of citizens’ constitutional rights.

The NRA has been lampooned in recent weeks for defending the right of those placed on terror watch lists to purchase firearms. The unsurprising reaction from the media has been to brand the NRA and other pro-gun advocates as “extremists.”

But is it really so extreme to demand a proper trial before a citizen’s constitutional rights are taken away? The fact that the NRA’s position is even considered extreme is a sad commentary on many Americans’ unreserved willingness to sacrifice liberty and dignity in the battle against terrorism.

There are over one million members on the government’s secret terror watch list. Being placed on a watch list is in no way equivalent to being convicted of, or even formally charged with, committing terrorist acts. The government cannot justly deprive an individual of rights simply as a result of the type of crime of which he is suspected.

It is discouraging, if unsurprising, to see Democrats lined up to support legislation to deprive suspected criminals of Second Amendment rights. Deprivation of constitutional rights without due process, whether such deprivation entails suspension of habeas corpus or abridgement of the right to purchase a firearm, is always unacceptable.

Government’s demolition of constitutional rights without due process of law does not stop with the Second Amendment. Most shockingly, Obama has authorized the assassination of an American citizen without any pretense at due process. For Barack Obama, mere suspicion of terrorist activity warrants the death penalty.

Joe Lieberman and John McCain have recently introduced legislation that allows an American citizen suspected of terrorism to be placed in military custody and “detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners,” i.e., indefinitely.

In an effort to prevent terrorism suspects from receiving procedural protections, Joe Lieberman is currently at work on legislation that would strip of his citizenship “any individual American citizen who is found to be involved in a foreign terrorist organization, as defined by the Department of State.” The decision to strip an American of his citizenship, on the basis of an accusation, would be made without any trial.

Stripping an American of his citizenship without a trial or any formal determination of guilt would open the door to additional, unrestrained governmental abuses. Indefinite detention, extrajudicial killing, and torture have been employed against non-citizens for years.

These constitutional erosions strike at the very core of the American system. They violate not only more specific components of the Bill of Rights (e.g., the right to a speedy and public trial, the right to bear arms), but also the broad protection of the Fifth Amendment, which decrees that no person shall be “deprived of life, liberty, or property, without due process of law.”

Due process of law entails formal charges and a fair hearing. In criminal contexts a jury is required. Procedural rights—codified in Amendments Four through Eight of the Constitution—protect citizens from governmental abuse and enshrine the common-law maxim of “innocent until proven guilty.”

One of the primary benefits of observing procedural limitations is that procedural rights help ensure that adequate evidence is presented before an individual is deprived of his liberty. The right to counsel, the evidential requirement of “beyond a reasonable doubt,” and a jury trial all restrain government from arbitrarily and capriciously punishing an individual without sufficient evidence of guilt.

Respect for proper procedure also helps to ensure that America remains a government of laws, not of men. Legislation broadening executive power gives disproportional weight to the discretion of unchecked individuals. Respect for due process confines potentially tyrannical politicians by forcing them to work within acceptable legal avenues.

Concessions to executive power in the name of the War on Terror also disrupt the system of checks and balances that is so essential to the republican form of government. Allowing the president to detain or kill suspects without due process essentially makes him the judge, jury, and executioner. A system of checks and balances ensures decentralization of power and frustrates the ambitions of would-be dictators.

The abridgement of due process and the deprivation of constitutional rights pose far greater threats to American liberty than any terrorist does. By sacrificing basic components of the democratic system to defend against terrorism we open ourselves up to much deadlier risk—that of tyranny. An unchecked government leaves us neither safe nor free.