Due process of law is as fundamental to a republic or democracy as elections. It is even important to schools and successful business.
Without due process, anyone in a position with a little power really has unlimited power to arrest and detain (fire or flunk) anyone, any time, for any or no reason. The right to due process is stated four times in the Constitution. It’s invoked in the Declaration of Independence and by tradition the English 1659 bill of rights.
It is repeated in the 1948 Unversail Declaration of Human Rights, which is subscribed to, at least in theory, by all UN members. It’s implied in the Bible, the Cyrus Cylinder, and was even in the original Soviet Constitution.
Right to due process means that the accused, no matter who they are — not just citizens — has certain rights that cannot be denied. The first being to know why and the consequences. This is summarized in the Miranda rights warning given to anyone detained by law enforcement — the right to remain silent and avoid self-incrimination. The right to counsel, including the right to court appointed, publicly funded counsel, if unable to afford representation, and a warning about understanding the rights.
Without this protection, including habeus corpus, there must be evidence: Constitution, Article 1 Section 9. The right to fair trial is defined in Article 3 Section 2. The trial of all crimes, of … shall be by Jury; and such trial shall be held in the state where the said crimes shall have been committed.
Amendment 5, the right to trial by jury of peers, not the prosecutor’s choice, no person shall … be subject for the same offense to be twice put in jeopardy of life or limb; (no mulligan for the state)… nor be deprived of life, liberty, or property, without due process of law and
Amendment 14: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It also means that no person with official powers, rookie cop or president, may circumvent these rights, except in actual combat, for any reason. However, in law there are always alleged exceptions, and that is why we must have an independent judiciary to determine if there is a legitimate reason why something occurred that appears to abrogate those rights, such as actual combat, or force majeure — an overwhelming force, like a flood or tornado.
What can happen without due process? Property can be confiscated, civil asset forfeiture. Innocent people can be rounded-up like livestock and disappear. They can be incarcerated like 180,000 Japanese Americans were in 1943. Shuffled off to a third world industrial prison, forced into slave labor. They can be incinerated like 8 million non-Aryans were in the holocaust. If it can happen to Kilmar Abrego Garcia. it can happen to anyone, including you or your child.
Ultimately, an economy can collapse and the people, be deprived when most of government assets are committed to wanton enforcement and incarceration without due process.
The claimed authority currently rests on The Alien Enemies Act of 1798, a wartime authority that allows the president to detain or deport the natives and citizens of an enemy nation. It presupposes a war, and until now was only invoked when there was an actual war. It was one of the three unpopular Alien and Sedition acts that ended the Federalist Party and John Adams’ presidency.
American law enforcement officers are normally somewhat respectful to the public, at least they call me sir. It is frightening how swiftly federal officers have adapted to methods we associate with totalitarian regimes, like military tactics and equipment, covered faces, bags over the victim’s heads, ignoring Miranda procedure, surprise raids that intimidate bystanders, “accidental” arrest of innocents and increasing denial of other rights. This is how it starts.
First, they came for the irregular immigrants, but I was not an immigrant. I did not speak.
Then they came for the regular immigrants. You know the rest.
Ken Obenski is a forensic engineer, now a safety and freedom advocate in South Kona. He writes a biweekly column for West Hawaii Today. Feedback encouraged at obenskik@gmail.com.
