President Trump is making a big deal out of the fact that former staff secretary Rob Porter is being denied “due process of law” because people believe that his two former wives are telling the truth regarding his purported physical abuse of them and disbelieving Porter’s denials of such abuse.
Unfortunately, Trump displays a woeful lack of understanding of what due process of law is all about. It’s a legal concept, not a means by which one determines which spouse is telling the truth in a marital dispute. It is a restriction on the power of government to arbitrarily kill, incarcerate, torture, or do other bad things to people.
The term “due process of law” stretches all the way back to Magna Carta in 1215, when the great barons of England forced King John, at the point of a sword, to publicly acknowledge that his powers over the citizenry were not omnipotent but instead were limited. One of the most important parts of Magna Carta was Section 39, which stated as follows:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
Over succeeding centuries, that phrase—“law of the land”—evolved into the phase “due process of law,” a phrase that ultimately was included in the Fifth Amendment (and, later, the Fourteenth Amendment) to the U.S. Constitution:
No person shall . . . be deprived of life, liberty, or property, without due process of law.
There are two things to note about that Fifth Amendment provision:
First, it prohibits the federal government from killing people, incarcerating them, or seizing their property without “due process of law.” Why did our ancestors enact that amendment? The reason is obvious: because they were convinced that in the absence of the amendment, U.S. officials would start killing people, incarcerating them, and seizing their property without due process of law. The idea behind the Fifth Amendment was to send a message: This shall not happen in the United States.
Second, the protections of the Fifth Amendment apply not just to U.S. citizens. By employing the word “person” rather than the term “citizen,” its protections apply to every person in the world, foreigners and citizens alike. That’s the way our ancestors wanted it.
How can the provisions of the Fifth Amendment be reconciled with the U.S. government’s ongoing assassination program as part of its “war on terrorism”?
They can’t be. The U.S. government’s assassination program confirms the fears of the people who enacted the Fifth Amendment—that the U.S. government would end up doing the same things that King John was doing and that tyrannical governments have done throughout history—kill people without due process of law.
What exactly does due process of law entail? Over the centuries, due process has come to encompass two principles: notice and hearing (or trial). What that means is that before the government can kill a person, it has to give him notice of what he has supposedly done to justify being killed. That’s what a grand-jury indictment is for—to let the person know what he has supposedly done wrong.
But notice, while a necessary prerequisite, is not enough to satisfy due process. Also required is the opportunity for the person who is to be killed to be heard. That’s what a judicial hearing or a trial is all about. In our system, due process has come to encompass such things as trial by jury, the presumption of innocence for the accused, and the need to prove guilt beyond a reasonable doubt with competent evidence.
At the risk of belaboring the obvious, none of that is taking place with the federal government’s assassination program. Elements of the national-security establishment—i.e., the Pentagon and the CIA—determine what people should be killed and then they just kill them. No notice to the victim of what he has done wrong. No opportunity to be heard. Just snuff them out.
Of course, defenders of the federal government’s assassination program argue that war is hell and that people are killed in war.
But there is one big problem with that justification: There is no war. The “war on terrorism” is not a real war. It’s just a phrase to describe governmental actions against criminal activity. It’s like the “war on drugs,” which also isn’t a real war but instead describes governmental actions to go after people who violate criminal laws on drugs. Or the “war on crime,” which describes governmental actions to go after people who commit crimes.
That’s what many people just still don’t get: that terrorism is not an act of war but instead just a criminal offense, no different from any other federal criminal offense. If anyone doubts that, all he has to do is go look up the U.S. Code, which lists federal crimes. He will find terrorism listed there as a federal crime. Or he can just go talk to any federal judge in the land who has presided over federal trials involving terrorism. The judge will explain that the reason he presides over terrorism trials because is terrorism is a federal criminal offense.
Another problematic aspect of the U.S. government’s assassination program is that none of the assassinees has ever attacked the continental United States. At worst, their crime is killing U.S. troops who have invaded or occupied foreign lands or violently revolting against U.S.-installed foreign dictators. While the U.S. considers resistance to U.S. imperialism to be terrorism, it certainly does not constitute an attack on the continental United States.
U.S. officials defend their assassination program by arguing that the assassinees are evil. But who makes that call? Certainly, not a jury or even a judge because the assassinee is never provided due process of law—i.e., notice and hearing—to show that he isn’t evil, that he is innocent of what they are accusing him of, or that what he is doing over there is none of the U.S. government’s business and, therefore, that he doesn’t deserve to be killed by U.S. assassins. Instead, under the federal government’s assassination program, the Pentagon and the CIA serve as judge, jury, and executioner, which is precisely what the Fifth Amendment (and Magna Carta) were intended to prevent.
Some people might think that the extra-judicial assassinations are no big deal because most of the assassinees are foreigners. But killing people is a big deal whether they are American citizens or not. Moreover, it’s important to bear in mind that the power of the Pentagon and the CIA to assassinate people without due process of law also now extends to American citizens. Just ask the families of Anwar al-Awlaki and his teenage son Abdulrahman, both of whom were American citizens whom U.S. officials assassinated without due process of law, with the full support of the U.S. federal judiciary.
Yes, the issue of who is telling the truth in cases of marital abuse is certainly important. But that issue pales in comparison to the U.S. government’s assassination program by which President Trump and his Pentagon-CIA assassination team are killing people without due process of law, in direct violation of the express provisions of the Fifth Amendment to the U.S. Constitution.
This work by MWC News is licensed under a Creative Commons Attribution 3.0 Unported License
Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.