The Weekly Bipartisan: Uniting Against Indefinite Detention


[Welcome to The Weekly Bipartisan, where we share instances of meaningful bipartisanship, on the Hill and elsewhere. This project seeks to shine a light on efforts to come together to find common ground and advance shared values in a political climate defined by polarization, an increasingly jaded citizenry, and vilification instead of constructive dialogue and debate.  LDB Editors]

A truly Motley Crew ushers in our first installment of The Weekly Bipartisan. Imagine this group of U.S. Senators collectively agreeing on anything: Ted Cruz (R-Tex.), Dianne Feinstein (D-Calif.), Mike Lee (R-Utah), Sheldon Whitehouse (D-R.I.), Susan Collins (R-Maine), and Chris Coons (D-Del.). Yet that is exactly the group that has come together to co-sponsor and reintroduce the Due Process Guarantee Act (previously introduced in 2015 by Senators Feinstein, Lee, and Cruz). This legislation is designed to protect potential defendants from indefinite detention in contravention of their constitutionally protected due process rights.

According to the legislation’s official summary, the Act

[a]mends the federal criminal code to expand provisions prohibiting the United States from imprisoning or otherwise detaining a citizen except pursuant to an Act of Congress, to: (1) prohibit such imprisonment or detention of a U.S. citizen or a lawful permanent resident except consistent with the Constitution and pursuant to an Act of Congress that expressly authorizes such imprisonment or detention; and (2) prohibit construing a general authorization to use military force, a declaration of war, or any similar authority, on its own, to authorize the imprisonment or detention without charge or trial of a U.S. citizen or lawful permanent resident apprehended in the United States.

In today’s political climate, it is refreshing (albeit rare) to see that political leaders, who disagree on much, are nevertheless willing and able to 1) respect one another, 2) find common ground, and 3) advance shared values despite regular disagreement. It is especially gratifying to witness leaders unite in this manner around preserving the original meaning of important constitutional provisions.

It should be no surprise that the Due Process Guarantee Act has drawn support from across the political spectrum. Due process rights are as fundamental to the American project as it gets: as we are a free, self-governing people, the Constitution meticulously guards against the government’s ability to strip individuals of their natural liberty without clearing some very high bars. This is no mistake.

As the Founders were constructing our written Constitution, they had in mind important lessons of history, lessons both contemporaneous to and preceding their own moment in time. Specifically, historic practices of the English monarchy and other despotic governments worldwide explain many of the criminal-process protections embedded in the Bill of Rights. In Joseph Story’s Commentaries on the Constitution, for example, the following context is given for the Due Process Clause:

The . . . clause prohibits any person from . . . being deprived of life, liberty, or property, without due process of law. This also is but an affirmance of a common law privilege. But it is of inestimable value. It is well known, that in some countries, not only are criminals compelled to give evidence against themselves, but are subjected to . . . torture in order to procure a confession of guilt. And what is worse, it has been . . . attempted to excuse, or justify it, upon the score of mercy and humanity to the accused. It has been contrived . . . that innocence should manifest itself by a stout resistance, or guilt by a plain confession; as if a man’s innocence were to be tried by the hardness of his constitution, and his guilt by the sensibility of his nerves.

In other words, torture, confinement, and intimidation were the favored tools of sovereigns around the world to extract pleas of guilt. But by the time of the American Founding, philosophers and legal thinkers alike were no longer shy in their criticisms of such a perverted system. For that reason, the Due Process Clause, with its roots in Magna Carta, was included in the Bill of Rights as part of the effort to craft a new criminal justice system — one more befitting a society where sovereignty resides in the people. This new criminal justice system would be one in which defendants are innocent until proven otherwise, able to confront the witnesses against them, not forced to incriminate themselves, guaranteed a fair and speedy trial by a jury of their community peers, and, perhaps most importantly, not stripped of their rights and liberties until adjudged guilty — i.e., a system where the individual, not the crown, is paramount.

In the following remarks to the New York General Assembly in 1787, Alexander Hamilton articulated the role the Due Process Clause plays in governing a criminal defendant’s judicial proceedings:

Lord Coke, that great luminary of the law, in his comment upon a similar clause, in Magna Charta, interprets [due process] to mean presentment and indictment . . . But if there were any doubt upon the constitution, the bill of rights . . . removes it. It is there declared that, no man shall be disfranchised or deprived of any right, but by due process of law, or the judgment of his peers. The words “due process” have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature.

Blackstone’s Commentaries on the Constitution corroborate the original understanding of the Due Process Clause as requiring — at the least — an official indictment in a court of law before a criminal defendant may be stripped of liberty:

Due process of law as described by sir Edward Coke . . . is by indictment or presentment of good and lawful men, where such deeds be done in due manner, or by writ original of the common law. Due process of law must then be had before a judicial court, or a judicial magistrate.

The Due Process Clause, then, was specifically understood at the time of ratification to dictate the processes by which criminal defendants may be deprived of their liberty — and it would seem incontrovertible that indefinite detention constitutes a deprivation of liberty. Since part of the processes dictated by the original meaning of the Due Process Clause is official indictment, we see that our Constitution prohibits the government from indefinitely detaining citizens until indictment in and before a court of law.

This truth is precisely what the Due Process Guarantee Act latches onto — it is designed to clarify that “the 2001 Authorization for the Use of Military Force” and other such authorizations may not “be construed as acts of Congress that permit indefinite detention” without charge or trial — i.e., without indictment — unless and until “Congress expressly authorizes it.” (Given that the Due Process Clause is a constitutional protection, however, query whether Congress could authorize such detention absent an indictment, even if it wanted to. But that point is for another day.)

For now, the Due Process Guarantee Act is a welcome bipartisan step in the right direction. Senator Lee’s 2015 press release describes the Act as “a bill to protect Americans from being detained indefinitely, without charge or trial.” On the Senate floor in 2016, Senator Paul weighed in to support the bill, stating:

[f]our years ago we passed legislation under the defense authorization that allows the American government to detain an American citizen without a trial. Think about that. One of our . . . basic rights, one of our most basic rights is to have a jury of our peers.

Think about that indeed.

Senator Feinstein has just as trenchantly explained the situation in previous interviews:

Detaining U.S. citizens and green card holders indefinitely without charge or trial violates our fundamental values as a nation and represents a repetition of the horrific mistake made with the internment of Japanese-Americans.

Perhaps the Due Process Clause’s historic background seems no more than an academic exercise. But the practice of jailing and isolating American citizens to force confession should be no less concerning today than it was for those who poured their experiences and understanding of history into our first ten amendments. For example, in 2012 President Obama signed a National Defense Authorization Act (NDAA), two sections of which authorized him, and “now authorize President Trump, to order the arrest and indefinite detention — without charge or trial — of anyone labeled a ‘suspected terrorist’ or ‘belligerent.'”

While the ability of the government to act in the interests of national security is a critical priority, the vague language of the 2012 NDAA demonstrates the very real and present need to ensure our basic, constitutionally protected civil liberties are not lost in the mix. And, in the words of Sen. Lee,

[b]y forbidding the government from detaining Americans without trial absent explicit congressional approval, the Due Process Guarantee Act strikes the right balance between protecting our security and the civil liberties of each citizen.

It can be easy these days to lose sight of the importance and reality of people coming together, even in the midst of sweeping disagreement, to defend the values and ideals we do share. So it is encouraging to see a bipartisan group of high profile Senators buck the trend to unite in defense of our most basic rights, particularly when national security concerns would render those rights easy to ignore.

For that, we should all pause to thank our Motley Crew for daring to walk on the wild side.

One comment

  1. […] It often seems the dominant cultural conversations about the United States Constitution—among scholars and non-scholars alike—center largely on civil, rather than criminal, issues. That is not uniformly true, as the Cato Institute, for example, recently named Clark Neily their Vice President for Criminal Justice. The Charles Koch Institute has similarly invested significant resources into criminal justice reform efforts. We have highlighted before the level of ongoing bipartisan efforts in the area of criminal justice reform, as well as in the areas of asset forfeiture and due process rights. […]

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