Bonus 133: Due Process and the Rule of Law

Too many Americans don't understand, at a basic level, *why* the Constitution requires due process when the government deprives anyone of their life, liberty, or property.

Welcome back to the weekly bonus content for “One First.” I usually post these extra issues on Thursday mornings, but got halfway through writing this piece last night before deciding I’d just drop it today.

Although Monday’s regular newsletter will remain free for as long as I’m able to do this, I put much of the bonus content behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit.

Karen’s (valid) protestations to the contrary notwithstanding, I have yet to delete the app formerly known as Twitter from my phone. Thus, I’ve had a chance to see, over the last few days, a truly dispiriting level of support for President Trump’s attempt to misuse the Alien Enemy Act as a basis for mass, summary removals of people the government claims to be members of the Venezuelan gang, Tren de Aragua (TdA)—and a truly dispiriting level of hostility directed to Chief Judge Boasberg for having the temerity to try to pause those removals while their legality is litigated. (At least the Chief Justice has entered the chat.)

Even if the Alien Enemy Act applies to TdA, which is itself quite a fraught question, how do we know that the folks who were put on those planes and flown to (and imprisoned in) El Salvador are actually part of TdA? Are we really supposed to just take the government’s word for it? The same government that filed a declaration in the D.C. Circuit Monday night in which one of its immigration enforcement officers argued, apparently with a straight face, that “[t]he lack of specific information about each individual actually highlights the risk they pose”?

All of this has led me to think a lot (and want to write) about due process—a term that most folks will quite obviously recognize, but that we perhaps don’t spend enough time discussing in detail. The central idea behind due process is that, no matter what substantive authorities the government may have, we are all entitled to at least some process when the government seeks to use those authorities to deprive us of our lives, our liberty, or our property. The amount of process that is due famously (or, for law students, infamously) varies with the circumstances; we’re not entitled to as much process in contesting a parking ticket as we are in contesting a criminal indictment. There is also variation as to whether the process must precede the deprivation (e.g., a hearing before you’re evicted from your house), or whether it can come afterwards (e.g., a hearing to restore wrongfully terminated government benefits).

But I don’t think it’s a stretch to suggest that due process is what separates democratic legal systems from … less democratic legal systems. As usual, Justice (Robert) Jackson may have put it best in 1953, in his dissent in the Mezei case:

Only the untaught layman or the charlatan lawyer can answer that procedures matter not. Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. Indeed, if put to the choice, one might well prefer to live under Soviet substantive law applied in good faith by our common-law procedures than under our substantive law enforced by Soviet procedural practices. Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice but which are bound to occur on ex parte consideration.

Courts will often get the due process calibration wrong. Or they’ll misapply the correct calibration. But procedural fairness is not about obtaining some kind of epistemological truth; it’s about maximizing accuracy and minimizing the risk of error. It’s how we can have any faith that the government is using the Alien Enemy Act to remove Venezuelan gang members and not American political opponents. And now more than ever, it’s a principle all of us should be fighting for—along with the indispensable role that courts have played (however imperfectly), and can and must play, in enforcing it.

For those who are not paid subscribers, we’ll be back on Monday (if not sooner) with our regular coverage of the Court. For those who are, please read on.

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Let me start with what may be a surprising prompt: What made the Japanese American internment camps so morally and legally odious? Looking backward, the answer is easy: They were undeniably (and all-but-overtly) based upon racial prejudice. Yes, the government also detained Germans and Italians living within the United States during the Second World War (under the Alien Enemy Act!). But we treated those of Japanese descent differently—detaining not just the first-generation Japanese immigrants (issei), who could have been arrested and detained under the AEA, but their children born in the United States, who were unquestionably U.S. citizens (nisei), and therefore could not be. As I explained in an early issue of this newsletter, no statute authorized the detention of the nisei. (Fred Korematsu was convicted of violating a statute that made it a crime to ignore an exclusion order, but those who “voluntarily” relocated to internment camps broke no law—which is part of why the Supreme Court eventually held many of their detentions to be unlawful.)

But the racist overtones of the internment policy has, at least to some degree, obscured the historical memory of the other central problem with the policy: it was indefensibly (and, thus, intentionally) overbroad. The central justification the government proffered for why it needed to categorically exclude all individuals of Japanese descent from “military areas” (which included the entire West Coast) was a claim made by General DeWitt that the government lacked the ability to conduct individualized assessments of the dangerousness of members of that group—unlike what was true for German and Italian nationals.

We now know that this was a lie—that the War Department misled the Justice Department, and that the Justice Department, in turn, misrepresented the information in its possession to the Supreme Court in Korematsu. As Neal Katyal explained when he was Acting Solicitor General back in 2011, “By the time the cases of Gordon Hirabayashi and Fred Korematsu reached the Supreme Court, the Solicitor General had learned of a key intelligence report that undermined the rationale behind the internment. The Ringle Report, from the Office of Naval Intelligence, found that only a small percentage of Japanese Americans posed a potential security threat, and that the most dangerous were already known or in custody.” In other words, the government defended the mass, suspicionless exclusion of those of Japanese descent from the West Coast on the ground that it could not provide the more individualized review that it knew itself to be capable of performing.

Thus, although internment’s infamy is inextricably intertwined with racial prejudice, what made the prejudice operative was the refusal to provide individualized assessments in a context in which they were possible—to not provide due process to more than 100,000 Americans before depriving them of their liberty and property. Racial prejudice may have been the nefarious motive, but the prejudice was operationalized through denials of due process. Had the government provided individualized hearings before excluding individuals of Japanese descent, even with a very low standard of proof, I suspect that (1) a tiny fraction of the total number of internees would have been excluded; and (2) we’d look back on that policy with a lot less regret (and indignation) today.

If you prefer a more recent example, consider the debate over the federal government’s power to engage in a targeted killing of a U.S. citizen, Anwar al-Awlaki, based upon the claim (never tested in court) that Awlaki had become an operational leader for al Qaeda, and was actively engaged in planning and supporting acts of international terrorism against (and in) the United States. In a March 2012 speech at Northwestern University Law School defending the government’s targeted killing program, Attorney General Holder asserted that “‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.” In other words, as long as the federal government goes through enough of a (classified) internal process before choosing to use lethal force against one of its own citizens, that’s all the Constitution requires.

As I wrote in response to the public disclosure of the white paper on which the speech was based, that argument was both profoundly incomplete as a doctrinal matter and highly dangerous as a normative matter. Even if it’s not possible for courts to review targeted killing operations in advance (see my response to former Attorney General Alberto Gonzales’s proposal for “drone warrants”), due process can still be judicially vindicated after the fact—just as it is when assessing whether uses of lethal force by law enforcement officers were constitutional under the circumstances. For obvious reasons, that review can only come ex post.

The Alien Enemy Act presents the flipside of that problem: Judicial review after an individual is (wrongfully) removed from the United States cannot compel their return; at most, the government has acknowledged an obligation in some cases to “facilitate” such a removed individual’s return. But even if it could, there’s the separate matter of the harm the individual suffers in the interim. This may help to explain why, even in 1798, Congress provided for a “a full examination and hearing” for those against whom the government sought to invoke the Alien Enemy Act—because it understood the importance of a meaningful assessment of whether the individual at issue actually was properly subject to the sweeping authority conferred by the statute before they could be subject to long-term detention and/or removal. And it helps to explain why, during the War of 1812; World War I; and World War II, in contexts in which there was no genuine dispute over whether the Alien Enemy Act applied, courts still conducted case-specific review of whether specific detainees were, in fact, subject to the statute (e.g., were they a native, citizen, denizen, or subject of a country against which Congress had declared war).

Against that backdrop, there’s just no good argument for refusing to provide comparable process to accused members of TdA before removing them from the country. I say this not because, contra some of my Twitter fans and e-mail correspondents, I support TdA and want to keep “rapists and murderers” at large in the United States. Rather, I say this because that kind of process is how any of us can have confidence that the folks being packed onto airplanes and whisked off to El Salvador are Venezuelan citizens and members of TdA—as opposed to U.S. citizens; political dissidents; or others whom the Trump administration would just as soon be rid of. Indeed, one need not believe that the government is acting maliciously to believe that errors will be made.

And insofar as the government’s argument is that its justifications are based upon classified information that can’t be made the subject of ordinary judicial proceedings, and so none of the ordinary rules concerning judicial review should apply, Congress, to its credit, has provided for that scenario, as well; indeed, that’s the raison d’être of the Alien Terrorist Removal Court—established in 1996, but never utilized. Even that statute provides detailed procedures for meaningful (if circumscribed) pre-removal judicial review.

This all brings me back, yet again, to Jackson. Having led the U.S. prosecution team at the Nuremberg war crimes tribunal, Jackson had direct experience with the consequences of a legal system in which due process breaks down; he was unmistakably direct on this point in Mezei (emphasis mine):¹

[T]he Nazi regime in Germany installed a system of ‘protective custody’ by which the arrested could claim no judicial or other hearing process, and as a result the concentration camps were populated with victims of summary executive detention for secret reasons. . . . There are other differences, to be sure, between authoritarian procedure and common law, but differences in the process of administration make all the difference between a reign of terror and one of law. Quite unconsciously, I am sure, the Government’s theory of custody for ‘safekeeping’ without disclosure to the victim of charges, evidence, informers or reasons, even in an administrative proceeding, has unmistakable overtones of the ‘protective custody’ of the Nazis more than of any detaining procedure known to the common law. Such a practice, once established with the best of intentions, will drift into oppression of the disadvantaged in this country as surely as it has elsewhere.

Or, as Jackson concluded his dissent:

It is inconceivable to me that this measure of simple justice and fair dealing [notice of the grounds for exclusion and a hearing] would menace the security of this country. No one can make me believe that we are that far gone.

Thanks to the courts, we aren’t that far gone yet. But too many of our fellow citizens appear to have no problem with the Trump administration pushing us ever further in that direction. Shame on them, but also shame on all of us for failing to do a better job of educating our fellow citizens about how, if left unchecked, this all ends.

1. Jackson lost in Mezei; a 5-4 majority held that, when a non-citizen was being detained after being denied entry into the country, they were not entitled to notice and a hearing respecting the grounds for denial. But whatever else might be said about Mezei (little of it good), the Supreme Court has made clear that it doesn’t apply to cases in which individuals have entered the United States prior to their arrest and detention—such as the alleged members of TdA against whom the Trump administration has sought (and is seeking) to use the Alien Enemy Act.