The relevant Constitutional language is from the Fourteenth Amendment, which expands upon similar language in the Fifth Amendment and which, among other things, extends the Fifth Amendment rights to the States as well the Federal Government. In both instances the Constitution makes reference to "persons," a category that has been held to include even those who enter the country illegally. Here is the relevant guarantee as it appears in the Fourteenth Amendment, Section 1:
". . . 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 is interesting to note that the phrase "pursuit of happiness" which appears in the Declaration of Independence does not appear anywhere in the Constitution, where it has been replaced with the single word "property."
The administration's creation of these "Star Chamber" proceedings, as well as a number of other assaults on Due Process recently announced by Ashcroft and others, such as the taping of otherwise-privileged attorney-client conferences, are grave assaults upon the American values that we are theoretically bombing Afghanistan to protect. We should all fight them vigorously.
Among other things, these assaults upon our liberties are being justified on the basis that "terrorists don't deserve anything better." This, however, assumes what should be the result of the proceedings, i.e., the conclusion beyond a reasonable doubt that the accused is in fact a terrorist. Thus, the accused is assumed to be a terrorist from the outset of the proceedings and is therefore denied the ordinary right to a public trial, properly admissible evidence, confrontation of the witnesses against him or her, and the other attributes of Due Process in the very proceeding that is supposed to determine whether he or she is in fact guilty of the crime charged.
Ordinary Due Process requires the hearing before the rights are denied. Denying the rights before the hearing means that there never will be a fair hearing as our laws have come to define it. We should be outraged, and we should let our leaders know we are outraged.
The precedents cited by the administratrion, such as certain military tribunals established in connection with the Civil War and World War II, have all been long discredited among reputable Due Process scholars. Our nation has engaged in many acts which were held to be Constitutional by the then-sitting Supreme Court (e.g., slavery, state-sponsored segregation of the races, violation of Indian treaties, internment of Japanese residents, police coersion of confessions). Most of us who care about the law, however, expect the maturity of our nation's approach to Due Process and the rights of persons to recognize and learn from our past errors rather than multiply them.
I urge all to air their concerns beyond The Mudcat.
-Bennet D. Zurofsky, Esq. A Member of the New Jersey Bar