Without Due Process ... On One Man's Word

From Glen Greenwald over at Unclaimed Territory, a shock. I agree with Antonin Scalia about something.

Yeah. I know.

But this is a fundamental American right: the right of due process.

As James Madison wrote, "Since the general civilization of mankind, I believe there are more instances of the abridgment of freedoms of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations."

And again, "It is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of the noblest characteristics of the late Revolution. The freeman of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle."

Glen says:

Here is what Antonin Scalia said in Hamdi v. Rumsfeld in explaining why the Constitution bars the Government from imprisoning U.S. citizens without a trial:

The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive. . . .

The gist of the Due Process Clause, as understood at the founding and since, was to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property.

When a citizen was deprived of liberty because of alleged criminal conduct, those procedures typically required committal by a magistrate followed by indictment and trial. See, e.g., 2 & 3 Phil. & M., c. 10 (1555); 3 J. Story, Commentaries on the Constitution of the United States §1783, p. 661 (1833) (hereinafter Story) (equating “due process of law” with “due presentment or indictment, and being brought in to answer thereto by due process of the common law”). The Due Process Clause “in effect affirms the right of trial according to the process and proceedings of the common law.” Ibid. See also T. Cooley, General Principles of Constitutional Law 224 (1880) (“When life and liberty are in question, there must in every instance be judicial proceedings; and that requirement implies an accusation, a hearing before an impartial tribunal, with proper jurisdiction, and a conviction and judgment before the punishment can be inflicted” (internal quotation marks omitted)).

As Scalia makes so clear -- but shouldn't need to -- if there is any defining American principle, it is that the President can't throw U.S. citizens in jail without charges and a trial. Since the 13th Century Magna Carta, not even the British King could do that. But there are virtually no American political principles left which are not being called into question, if not overtly attacked, by Bush followers. Prohibitions on torture, the right to a jury trial, the obligation of the President to obey the law, the right of the press to publish stories without criminal prosecution -- all of the values which have distinguished this country and defined who we are as a nation for the last two centuries are all being debated and assaulted.

What do you do with people who never learned that American citizens can't be imprisoned by Executive decree and without a trial, or that American journalists aren't imprisoned for stories they write about the Government's conduct? People like this plainly do not embrace, or comprehend, even the most basic principles of what America is.

Go read Glen's whole post: it's important and timely.

And I leave you with this final word from Madison: It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad.