At its core, the right to due process of the law is the right to be treated fairly and have a fighting chance when facing legal action. The concept that defendants shall be presumed innocent until proven guilty is the basic underlying tenant of due process as applied to criminal cases. The finer details have always been a subject of debate. Due process is mentioned twice in the U.S. Constitution, and five Amendments outline its basic elements. Since the terrorist attacks of September 11, 2001, the tone of the debate has changed. Using the Patriot Act and certain preexisting legislation, the Federal government, in direct violation of the Constitution, has circumvented or eliminated many of the basic elements of Due Process formerly enjoyed in the United States.
The basic elements of Due Process of the Law as laid out in the U.S. Constitution. The Fourth Amendment guarantees freedom from search and seizure without probable cause and requires that notice be given in the form of a warrant. No property may be searched or taken without probable cause and notification and no person may be detained without probable cause and being informed of the charges against him.
Under the Sixth Amendment those accused of a crime have the right to a speedy and public trial by jury. The accused individual, or defendant, must be informed of the charge or charges against him. The defendant has the right to face his accuser and to effectively defend himself by providing his own witnesses, who are compelled by law to testify, and by having a competent attorney to assist in his defense. In order for an attorney to effectively assist a defendant communications between defendants and their attorneys must be confidential.
This client/attorney privilege is also covered under the Fifth Amendment which states that no person shall be required to testify against himself.
Both the Fifth and Fourteenth Amendments state that due process shall apply to every person.
The Eighth Amendment prohibits the imposition of excessive bail and fines, and the use of cruel and unusual punishment.
Amendment Five and Amendment Fourteen to The U.S. Constitution state that no person shall be deprived “of life, liberty, or property, without due process of law.”
Amendment 5
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment 14
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
Amendment Four, Amendment Six and Amendment Eight further outline the basic elements of due process.
Amendment 4
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment 6
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Amendment 8
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The current debate revolves around the question of who is entitled to due process, and whether honoring that right may undermine national security. Many believe that terrorists and those who would assist terrorists do not deserve the right of due process, and that honoring that right could reveal information or provide opportunities that threaten security. The irony is that due process must be employed in order to truly determine whether or not a suspect is involved in terrorism. Due process prevents individuals and agencies from arbitrarily labeling anyone as a criminal of any kind in order to detain, inflict punishment, or deny their Constitutional rights.
The biggest culprit in the deterioration of the right to due process is the Patriot Act. Under the Patriot Act the government is now allowed to conduct secret searches of many kinds, some without probable cause and without notifying the subject of the search before or after the search has been conducted.
Law enforcement can now obtain what is commonly referred to as a “Sneak and peek” warrant. This type of warrant allows law enforcement to search a person’s house while they are not home, and never tell them about it. While the law states that notification must be given eventually, the provision allows for the time limit on notification to be extended indefinitely. In order to obtain a “sneak and peek” warrant, law enforcement must show probable cause. Although this type of warrant has been made available by the Patriot Act, any law enforcement agency can use it in any type of criminal investigation. There is no requirement that this type of warrant be used in conjunction with an investigation of terrorism or potential terrorism.
Other actions which are legally classified as searches include wiretapping and other invasions of privacy.
Under the Patriot Act the FBI can now obtain private bookstore and library records in order to find out what an individual has been reading. This does not require probable cause, and comes with an automatic gag order preventing the library or bookstore from revealing that fact that they have been forced to produce the records.
The Attorney General’s approval of a Bureau of Prisons emergency surveillance order allows eavesdropping on conversations between attorney’s and their clients. This does not require probable cause and violates the Fifth Amendment by turning defendants into witnesses against themselves.
The Federal government has devised two methods of circumventing Due Process as it applies to detaining individuals – by declaring a person an Enemy Combatant or detaining an individual as a Material Witness. Both can be detained indefinitely.
Any U.S. Citizen or non-citizen can be declared an Enemy Combatant by the President of the United States. Once declared an Enemy Combatant the individual is placed into military custody, can be detained indefinitely, and is denied any communication with outsiders including family members and attorneys. Enemy Combatants do not have to be charged with a crime or tried. An Enemy Combatant can be arrested secretly, leaving their families with no knowledge of the nature of their disappearance. He has no right to defend himself against the charges brought against him and no right to an attorney. If a trial is granted at all, it is conducted in secrecy not only from the public but often from the defendant himself.
Anyone who may have information pertaining to a criminal investigation may be detained as a Material Witness. A warrant is required to in order to detain a Material Witness and the alleged witness has the right to a hearing to determine whether or not they truly have information that is crucial to the investigation. Once a person has been declared a Material Witness by a judge, that person can be detained until the completion of the trial in which they are participating. A Material Witness can be detained for many years, even though they are not accused of or tried for a crime.
The face of due process is rapidly changing. New laws have been created, and old laws are being used in new ways to circumvent the Constitutional right to due process. In the post 9/11 climate the United States has softened its stance on civil rights out of fear, opening the door for abuse. Even though these violations are not limited to anti-terrorism efforts, they are increasingly viewed by the public as acceptable concessions.
