Due Process in America?

September 18th, 2007


By Claudia Rosenbaum

Recently, the Due Process Clause guarantees afforded by the constitution have been treated as mere discretionary guidelines. Earlier this month in New York City hundreds of protestors were held for close to three days denied their due process rights. Three days would seem like a short time to one citizen who was held in North Carolina without his due process rights for close to two years. While the situations and circumstances of arrest were much different, the refusal of law enforcement in both cases to grant fundamental constitutional rights was the same. The denial of due process meant no access to an attorney, no opportunity to post bail and no arraignment to face charges before an impartial judge.

Protestors Denied Due Process Rights

Later this month, the New York Supreme Court will decide whether to make a permanent contempt holding and fine the New York City administration for denying protestors their fundamental due process rights during the Republican National Convention. Instead of abiding by New York law, which requires individuals to be charged within 24 hours of arrest, more than 600 protestors languished in holding pens for days. They were denied access to an attorney. They were denied an opportunity to post bail. And they were denied their legal right to an arraignment. The protestors were released only after acting New York Supreme Court Justice John Cataldo held the city in contempt and threatened the city with $1,000 fine per individual held past his ruling. By the time they were freed, the convention they had come to protest was over.

Officials Deny Detaining Protestors Unnecessarily

New York City officials denied purposefully detaining the protestors unnecessarily. Officials said the city was overwhelmed with the influx of civil disobedient protestors. In total, 1,821 people were arrested during the convention, the largest number of arrested from any political convention. But New York Police Commissioner Raymond W. Kelly had planned ahead for such numbers. His department, he said, spent 18 months planning and studying the opposition and deployed 10,000 NYPD officers for the convention. Kelly even helped oversee the creation of a multi-agency command center, which served as the nerve center where 66 separate city, state and federal agencies coordinated their work. Due to security considerations protestors had already agreed before the start of the convention to have their rights to free speech curtailed and limited to free speech zones.

Yet, for all the advance preparations there were no efforts being taken to process the protestors after their arrest. Instead of charging and arraigning individuals within 24 hours as required by New York law, many of the protestors languished in holding areas for days denied their fundamental right to due process. This occurred even though the courts calendar had been cleared for the week and additional personnel were standing by to handle the influx.

Previous Case of Denied Right to Due Process

Inexplicably, this flagrant violation of the Fifth and Fourteenth Amendments only a month after the US Supreme Court emphasized the importance of ensuring that citizen is allotted their right to due process. In that case, Hamdi v. Rumsfeld, the Supreme Court held that every US citizen has the right to due process even an alleged enemy combatant. In the Hamdi case, the singular undisputed fact was that Yaser Esam Hamdi was apprehended on the battlefield of Afghanistan. A declaration from a Defense Department official alleged various details regarding Hamdi’s trip to Afghanistan, including his suspected affiliation with a Taliban unit during the time when the Taliban was battling U.S. forces. His father, however, contends he was working as an aid worker in Afghanistan. Neither party proffered any evidence to back up their assertions as any requests for an in-camera review, a closed showing of evidence before the judge, were denied.

Justice Sandra Day OConnor, who wrote the decision for the majority, said that [d]ue process demands that a citizen held in the United States should be given an opportunity to legally contest the factual basis for that detention. History and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat, she added. The Hamdi decision reaffirmed the fundamental nature of a citizens right to be free from involuntary confinement by his own government without due process of law.

Civil Infringements and Denial of Due Process

As a criminal defense attorney, it is frustrating to practice in a climate which permits civil infringements and a denial of due process. In todays age of terror warnings and threats that there has already been an unprecedented encroachment on not only our constitutional rights but also on our civil liberties. Under the fog of war, these infringements have gone unchallenged. And while for a majority of Americans, the concerns of an enemy combatant or even of the protestors seem far removed, the encroaching losses of liberties that the Supreme Court addressed are closer to home than most realize.

Allowing the police to sidestep the constitution at their discretion is an affront to our democratic principles. The framers of the Constitution, specifically through the Fifth Amendment, sought to ensure our nations citizens are not deprived of life, liberty or property without due process of law. Yet, somehow, civil liberties are being brushed aside. The government, playing on the nations fears has used this period to justify forgoing civil liberties which they reasoned was a small price to pay for national security. We, as a nation, must keep alert, not only from terrorists, but from those who would threaten and deny us our constitutional rights.

Claudia Rosenbaum is an associate with Imhoff & Associates, P.C., Criminal Defense Attorneys, practicing criminal defense.

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