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The Assault on Due Process and Civil Liberties

One event that caused a lot of discussion and concern this week (with Paul Craig Roberts going so far as to say it was the last necessary piece being put in place before a possible coup) was the release of a Presidential order giving the administration the power to freeze assets of any person or entity considered to be “undermining” efforts to stabilize Iraq. The order is very broad, but according to a couple of lawyers I consulted, probably not illegal, and may not be unconstitutional (unless you really do read the Constitution with strict attention to original intent, which despite their claims, few Supreme Court judges do.)

To me what was interesting about the order, aside from the apocalyptic possibilities (which I don’t, frankly, rule out as “unthinkable”) was both that it’s probably legal and that it’s really nothing very extraordinary.

No, not extraordinary. The US has been allowing assets to be frozen and to be seized; has been allowing punishments to be inflicted for decades. This is just taking the refusal to follow due process to its logical extreme.

Now I’m neither a lawyer, nor do I play one on TV, and the last time I took a course in the law was over 20 years ago. But here’s my layman’s understanding of what’s supposed to happen before someone can be punished severely in countries with due process protections.

  • Be charged with a crime;
  • have their day in court;
  • Have competent counsel of their choicel
  • Being able to face their accuser and see the evidence against them; and,
  • Have the judge able to take into consideration the circumstances of the crime in sentencing after a Jury (for serious crimes) has determined guilt

Let’s run through those one at a time:

Being Charged With A Crime

The joke about the “War on Terror” is that it’s the “War on Drugs… on crack”. As with most good jokes, it hurts and it’s funny, because it’s true – the “War on Drugs” is where America lost a lot of its civil liberties and due process. Under a series of laws passed starting in 1970 with the “Comprehensive Drug Abuse Prevention Act” and codifying horrible incentives in the “1984 Comprehensive Crime Control Act” law enforcement received the ability to seize goods under civil forfeiture procedures. Unlike criminal forfeiture in civil there is no need that the owner of the property ever be convicted of the crime, only that the piece of property itself be convicted, under the less civil burden of proof of “probable cause” rather than “beyond a reasonable doubt”. Since the property is seized, then the owner has to go to court and in effect “prove” it wasn’t used in a drug crime, and since court time is expensive, one study (Blumenson and Nilsen 1998) found that 90% are uncontested More damningly, another (Schneider and Flaherty 1991), found that in 80% of cases the owner was never convicted of a crime.(pdf)

But the worst thing about these forfeiture laws is that the majority of the money (usually 80%) stays with the law enforcement agency that performed the seizure. I trust I don’t have to go into great detail about the perverse incentives this creates.

The freezing of “terrorist” assets done at the beginning of the “war on terror” was in this tradition – where “war” against an ill-defined enemy (drugs, terror) is used to justify taking people’s possessions away without every proving they’ve committed a crime. So is this week’s order.

The no-fly list is another case of “punishment without being charged or convicted”. You get on it, you don’t know why, you can’t find out why, and you can’t appeal to a court to get yourself off. Not being able to fly is a pretty significant penalty, and with talk of extended the no-fly list to ships; with the extension of a no-fly list to Canada, it’s bordering on becoming an exit visa requirement. Pretty soon you’ll have to drive to Mexico and take a flight from there if you want to leave the US. Refusal to allow citizens to leave the state is practically the definition of an un-free nation, and while the US isn’t there yet, step by step, it’s walking the path.

Having Their Day In Court

Ninety percent of all court cases are settled through a plea bargain. Plea bargaining is relatively recent – it didn’t exist at the time of the founders, and didn’t really start occurring until the very late 19th century, though even then it appears to have been less common than today. The poorer you are the more likely you are to take a plea bargain. If your black, or Latino, odds are you’ll get a worse bargain for the exact same crime. According to the sentencing project:

In the United States, more than 90 percent of all cases in the justice system are settled by plea bargaining rather than exercising the right to trial. The rate of felony convictions of nonviolent crimes in communities of color is over-whelming: African Americans constitute 13 percent of all drug users, yet they represent 35 percent of arrests, 55 percent of convictions and 74 percent of prison sentences, according to a 2000 study by the Sentencing Project.

The assumption in the system as it stands today is that you won’t have a trial. In fact, as the chart to the side here shows, the US system probably couldn’t function if everyone got their day in court – there aren’t enough courts, prosecutors, judges and so on to handle the flood. If pleading out was made illegal, the majority of cases would have to be thrown out (since they couldn’t be tried quickly enough to meet requirements for a speedy trial.) One might argue that pleading is necessary, but one might equally note that not all countries use it (it’s illegal in Scandinavian countries, for example).

Again, the War on (some) Drugs bears a lot of responsibility for this.

…increased incarceration of drug offenders has done little to decrease the number of people participating in illicit drug activities. 80 percent of the increase in the federal prison population from 1985 to 1995 can be attributed to drug convictions (USDOJ 1997). At the state level, the number of inmates incarcerated for drug offenses showed an almost three-fold increase from 1986 to 1995 (9% to 23%) (Haney and Zimbardo 1998).

All of this might be considered “worth it”, except for the fact that there’s little evidence that the “War on Drugs” has done anything to decrease the amount of drugs on the market or reduce the number of addicts. It has, however, acted nicely as a price support for drugs, supported many rural communities through the construction of prisons (where rural whites lock up urban blacks, pretty much) and increased the budgets of many law enforcement agents greatly (and as any ex-bureaucrat knows, all organizations exist to grow, if not kept carefully under control.)

All of this is before you even get to Padilla, the case against whom should simply have been thrown out because of gross due process concerns.

It’s also before you get to government spying on its own citizens, which operates in the sweet catch-22 of “it’s a secret who we’re spying on and because you can’t prove we’re spying on you in particular, you have no standing to sue, so the courts can’t overturn it.” Maybe, maybe not – it still hasn’t made its way to the Supremes, but I think it’s safe to say that the court as currently constituted can’t be counted on not to adopt such reasoning.

How many people a nation locks up is largely a policy choice. America locks up a ton of people because America chooses to do so. Locking up too many people is a direct assault on justice, because it requires an assembly line process for dealing with those accused of crimes. Justice requires taking individual circumstances into account and dies when people are treated as just backlogs to be cleared.

There is a march towards making as much law as possible administrative – towards restricting the right to use the courts. The most recent (and thankfully unsuccessful) was in the late Immigration bill. One of the nastier provisions, which few commented on, was that everyone in the country, to get a job, had to be checked against a national database. If the database said you weren’t legal – no job. But Congress, in writing it up, restricted the right of appeal to the courts. Restricting people’s ability to use the courts to get redress again concentrates power in the executive and makes bureaucrats unaccountable.

Competent Counsel of The Accused’s Choice

This isn’t a modern problem, this is as old as our system. The rich get good counsel, the poor, if they’re lucky, get an overworked public defender who, even if he gives a damn, simply doesn’t have the time and resources to give them the best defense. And so the richer you are, for the same crime, the more likely you are to get off. If you’re white you’re more likely to get off than Latinos or blacks; if your Latino, more likely to get off than a black.

Under Bush, as usually, this has reached ludicrous levels – with counsel to prisoners denied both denied access and spied on regularly (violating client-lawyer confidentiality). To be fair, in Guantanmo the American legal community has had perhaps its finest hour – with lawyers from the most prestigious white shoe firms taking on case after case, while the firms eat its cost. It’s things like this – the willingness of lawyers to see the bright line has been crossed that gives me hope for America. But it’s the steady creep of individuals like Roberts and Scalia, vetted by the Federalist Society, who make me worry that even this right will continue to be chipped away.

Being able to face their accuser and see the evidence against them

We’ve been faced with a barrage of assaults on this since Bush took charge. The torture act made it legal to use coerced testimony (read – what will you say to make the pain stop?) and to use secret evidence in trials. If you can’t see the evidence against you, if you can’t be told where it was received from, how can you possibly defend yourself? The answer is simple – you can’t. There’s no need to write a long discourse on this – any nation which does this sort of thing no longer has a justice system, it only has a legal system. But it should be understood that this sort of thing follows logically from laws which allow the seizure of property first, determination of guilt later – it follows logically from the sort of reasoning that says its okay to take away a person’s rights or their property, without ever letting them have a day in court, or face their accuser, or see the evidence. This stuff didn’t come out of nowhere, it came out of a legal tradition, a way of doing things, set up for the War on Drugs, to make law “efficient” and “effective” and to hell with the accused’s rights. I mean, seriously, they’re almost all guilty anyway, right?

A long ways from Blackstone’s “better that ten guilty persons escape than that one innocent suffer”.

Have the judge able to take into consideration the circumstances of the crime in sentencing after a Jury (for serious crimes) has determined guilt

Now since 90% of all cases are plead out, we already know that most people never get a jury trial. The important thing about jury trials is mostly the right (which they are not informed of ) to “jury nullification”. In jury nullification, a jury refused to convict an obviously guilty person, because they believe the penalty is too harsh, or the law is wrong. Quite a number of capital crimes in England, for example, were overturned for this reason. (Stealing a chicken shouldn’t be a capital crime.) Because juries routinely refused to convict, the laws had to be revised.

In the US because most cases are plead out, most people don’t have to serve on juries as much as they would otherwise have to do. People hate jury duty, but that’s the point – people hate it, but they should be forced to see how the legal system operates. If people were called up more often they would be forced to take responsibility in a personal way for locking someone up under 3 strikes laws, when their third strike was, say, stealing a bike. When government functions as important as justice are performed too much by civil servants (police, prosecutors and judges) and not enough by the public itself the full consequences of what is being done in their name is not made apparent to them. Perhaps, indeed, citizens would still approve. Good enough – but perhaps they wouldn’t. In either case, the responsibility for locking people up under draconian 3 strikes laws, mandatory sentencing laws and so on needs to be put directly in the hands of citizens and they need to be given the ability to nullify such laws if they choose. (Trivia: Canada’s last abortion law was repealed after repeated jury nullification. Juries knew the abortionist was guilty and refused to return guilty verdicts.)

Which leads us to mandatory sentencing laws and three strike laws. Yes, there will always be cases where judges use their discretion in ways we don’t like. But for every outrage of a judge “letting someone off light” there’s a case where, indeed, someone’s third strike is stealing a bike, and for that he’s going away for 20 years.

The War on Terror is Just the War on Drugs, on Crack

Civil liberties and due process have been under relentless assault for nearly 40 years now in the US. The War on Terror, for all that it has had horrible human rights and civil liberties abuses enacted in its name, would not have been possible without the preceding War on Drugs. What many seem to not realize is that the rights lost by one person are lost by everyone When some “terrorist” or “trafficker” loses his or her rights, so do you.

Asset forfeiture didn’t begin under Bush. The No Fly list didn’t begin under Bush. Punishing people for crimes they had never been convicted of, didn’t begin under Bush.

Of course, many things did start under Bush – torture, repeal of habeas corpus and so on. But it’s worth remembering, at the end of the day, that what has happened in the last 6 years did not happen in a vacuum – it was an acceleration of a trend that already existed towards the land of liberty becoming a land where due process was only something that some people, the right sort of people, had access to.

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Ian Welsh

Ian Welsh

Ian Welsh was the Managing Editor of FireDogLake and the Agonist. His work has also appeared at Huffington Post, Alternet, and Truthout, as well as the now defunct Blogging of the President (BOPNews). In Canada his work has appeared in and BlogsCanada. He is also a social media strategy consultant and currently lives in Toronto.

His homeblog is at