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Saturday, August 19, 2006

The shameful demise of due process

The shameful demise of due process
By Ronald Sokol
Copyright b y The International Herald Tribune
Published: August 18, 2006

AIX-EN-PROVENCE, France Bush and the law I

The ruling by a U.S. federal judge that the National Security Agency's secret wiretapping program is unconstitutional strikes a small note of hope in what is otherwise a shameful time for American justice.

Government lawyers are proposing that U.S. citizens can be detained and then tried in secret trials - in absentia, in some cases - using secret evidence that the accused cannot see. If evidence is obtained by coercion, government lawyers contend that it should still be allowed as a basis for conviction, thus rejecting almost 300 years of Anglo-American jurisprudence.
Almost 50 years ago, Chief Justice Earl Warren wrote that the "insistence upon putting the government to the task of proving guilt by means other than inquisition was engendered by historical abuses which are quite familiar." Unfortunately, these abuses are not familiar to the government lawyers who have circulated a draft of proposals that would have caused no notice in Nazi Germany or in the Soviet Union but that have never before been put forth in America.

The proposals provide that persons may be arrested and held indefinitely. There need be no sentence. No other civilized country permits such procedures. The United States has never before conceived of using them, neither during the two world wars nor during the Korean or Vietnam wars.

The voices raised against this trashing of the most fundamental notions of due process of law are not those of criminal defense attorneys but of military lawyers not known for their liberal views. Even they see these proposals as abhorrent and contrary to the most fundamental notions of due process.

If some felons or "unlawful combatants" escape conviction, societies are not destroyed. But when governments break with impunity the most fundamental rules of a civilized society, societies erode into authoritarian police states. Federal and state courts stand as a weak shield against that sad eventuality. For the past five years they have, for the most part, been silent and in some cases even supportive of the breakdown of the rule of law.

In short, Americans today live in a time of shame.

Much media attention has been given to the appointment of conservative judges by the current administration. Less widely known is the change that has occurred in the hiring practices of the Justice Department.

Government lawyers used to be recruited solely on the basis of competence by internal, nonpolitical hiring committees. The current administration has placed the task of hiring government lawyers into the hands of political appointees who employ an ideological litmus test. The president's choice of attorney general has always been a political choice, of course, but the hiring of hundreds of lawyers within the department has hitherto never been ideologically based. The results of that practice are all too apparent.

What can citizens do today to resist the erosion of the most basic notions of due process that have always characterized the American legal tradition? Voting is essential, but beyond that one must, at the minimum, take a clear stand and make known that what is happening today within the executive branch of the U.S. government is fundamentally wrong.

One must, at the minimum, disassociate oneself by whatever means one can from such strange and novel concepts as "unlawful combatants," "detainees," redefining torture to exclude acts that are widely recognized as torture, the dismissal of habeas corpus, indefinite detention, secret trials, secret evidence, government-authorized kidnapping, punishment without trial and denying lawyers to those imprisoned.

All the above measures were abhorred by American governments of both political parties when they were used by the Soviet Union, by South Africa during the apartheid era, and by other police states that invoked the need for security to justify their acts.

It would be wrong to claim that America has an unblemished record of defending due process. The forced marches and displacement, if not genocide, of native Americans in the 19th century, the unpunished lynchings of the early 20th century, the flagrant racial discrimination that is a tragic theme of American history: These and other stains remind us that, as in other countries, there is much mythology in the American saga.

But if due process has not always been respected, it has been honored and proclaimed. All branches of government have sought fully to embrace it. At no time within my memory have fundamental notions of legality, deeply rooted in centuries of Anglo-American tradition, been so trod upon by an American government founded upon those very principles.

We live in a time of shame.

Ronald Sokol is a practicing American lawyer in Aix-en-Provence. He formerly taught and practiced constitutional litigation in the U.S. federal courts, and is the author of "Federal Habeas Corpus."

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