There are reports that people have been picked up, detained or deported without due process. Why should we care?
When people are picked up, should we assume they did something wrong? Do they suddenly lose rights to a lawyer and a hearing because they were picked up?
Some people are rounded up in groups or crowds, or picked up because they have tattoos or beards. I was questioned and searched when I tried to board a plane because I had a short beard. The agent thought I might be Muslim and could be a terrorist – a silly mistake and by the way my Muslim friends aren’t terrorists either and most of them don’t wear beards. But I hope you realize that in all those contexts mistakes are easy and probable. I never leave the house without my ID but what happens if they take it away? How do you prove who you are and to whom?
I hope we can all agree that mistakes happen. They’re not even uncommon. How many mistakes did you make yesterday? I misidentified a few people. Since we’ve moved, I’m meeting new people and mistaking some of them but isn’t that pretty common out on the street and for authorities who don’t know the people they’re detaining? By the way, under the Constitution, detention is an arrest. But my point is that the opportunity for a hearing is how we correct for mistakes.
But mistakes are only the beginning.
Grudges? Dislike? A friend of ours was repeatedly stopped by a particular police officer. Our friend was very polite and responsible but someone with a badge didn’t like him. Justice Sandra Day O’Connor wrote a very famous and eloquent opinion about the risks of allowing police to detain a woman who could not have been held even if she’d been convicted of the seat belt violation he claimed. In that case, a neighbor ran out and rescued her children while the policeman took their mother to jail. Sorry, I don’t remember how many children she had in the car. But my point is that the opportunity for a hearing is how we correct for misuse of power driven by dislike, disagreement, grudges and such. Have you never met a policeman you didn’t like, or a public official you disagreed with or whose defeat, disbarment or impeachment you called for? Really don’t think anyone would abuse power against you, your family or friends?
Perhaps most insidious is politics by people claiming they don’t have time for due process – they’re actively getting rid of bad people. Recognize that trope? They’re trying to make you think they’re good guys because they’re showing muscle. Their idea is that the more people they sweep up, the more they look like they’re doing something good and nobody cares if they pick up people they shouldn’t.
The lack of due process means nobody’s watching, nobody who can stop them. That becomes addictive – no one to stop ‘em, no reason to stop, so let’s go. What are you afraid of? Sweep up some people and brag about it.
Still don’t think you could get picked up? Or your family or friends. How much do you want to stake on that belief?
In every field of life there are good people and bad people, people we can trust and people we can’t. But power encourages the worst in people. A country without due process is extremely dangerous.
Whether the brakes work depends on whether you’re willing to put your feet on the pedal, and support stations like WAMC that hold everyone’s feet to the fire without fear or favor.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
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