The Constitution’s 8th Amendment says “Excessive bail shall not be required.” American law gives us the opportunity to have a judge to determine the conditions of detention. In fact the 5th Amendment says “No person shall … be deprived of life, liberty, or property, without due process of law.” Detention is a deprivation of liberty, the liberty to leave and go where you want. Deportation is a denial of liberty, of the ability to stay here in America; denial of the rights of citizenship if government deports a citizen. The Constitution requires Due Process. Deportation without process flouts the due process clause, denies the right to present any defense and threatens us all with lawless behavior. The felon in the White House doesn’t recognize those rights – except when he wants them for himself.
Is this America where one can be picked up without protections, process or redress?
The 6th Amendment gives us the right “to have the assistance of counsel” in “all criminal prosecutions.” Some deportations may be based on allegations of criminal activity. But courts at every level have required counsel, that is, attorneys for the defense, for similarly serious deprivations whether or not they are labeled as crimes. The Trump Administration, however, tries to prevent detainees from calling or speaking with counsel.
Is this America where one can be held without the benefit of speaking with an attorney?
The law in this state says “A person is guilty of kidnapping … when he abducts another person.” Seizing and disappearing people are forms of abduction and kidnapping. There are, of course, exceptions for people with proper authority like policemen acting under law, but that exception doesn’t mean anyone with a badge can do whatever they want – police have been held guilty of abduction and kidnapping.
So what happens when people pretending to be federal agents show up with masks and without badges or visible legal authority? There’s little reason for people to assume that they are acting as law enforcement agents. That subjects everyone to serious risks. Are they being abducted or kidnapped. Do people have the right to resist being forcefully abducted by people they don’t know who have no apparent authority?
With some exceptions, “A person may … use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person….”
It’s hardly clear that a jury would convict anyone for reasonably resisting abduction. People frequently masquerade as law officers. Without visible badges or warrants, people could reasonably conclude that they’re thugs, traffickers or other criminals.
That puts everyone in jeopardy – the person being abducted because his or her chance to defend in court may disappear under Trump’s orders. The people doing the abduction may be at risk if it’s reasonable for their victims to act in self-defense.
Regardless of the legal questions, this kind of behavior puts America in the category of barbarians. I’m ashamed.
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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