Losing Due Process

By Douglas V. Gibbs

The following is an excerpt from my upcoming book: A Tyrant's Guide to Killing Liberty.  Check out my other books HERE.

“No man should be condemned unheard.” ― Ancient legal maxim, reported in Herbert Broom, A Selection of Legal Maxims (1900)

“Left-wing zealots have often been prepared to ride roughshod over due process and basic considerations of fairness when they think they can get away with it. For them the ends always seems to justify the means. That is precisely how their predecessors came to create the gulag.” ― Margaret Thatcher

DUE PROCESS WAS ARTICULATED in 1215 in the English Magna Carta, which provided that no freeman would be deprived of certain rights except “by the judgment of his peers and by the law of the land.”(1)

The essential elements of due process of law are notice, an opportunity to be heard, the right to defend in an orderly proceed, and an impartial judge. It is founded upon the basic principle that every man shall have his day in court, and the benefit of the general law which proceeds only upon notice and which hears and considers before judgment is rendered. In short, due process means fundamental fairness and substantial justice. The majority of the Fifth Amendment in the United States Constitution provides additional reinforcement to the concept of due process. The language of the Amendment was designed to assure those who feared the potential tyranny of a new centralized government created by the Constitution that the federal government would be restrained in such a way as to ensure that the government did not perpetrate bloodshed against its citizens.

Having a sense of independence, individuals must be protected from the tyrannical trappings of a governmental system that may try to use the judiciary against them. The protective mechanism is the rule of law as established by the U.S. Constitution and clauses like the Fifth Amendment, which were designed to provide protection to the populace from unfair legal practices.

The Saxon System, in an attempt to protect due process, created juries. “Although the jury system of the Saxons and Anglo-Saxons was very primitive compared to the system we have today, it did remove the authority of the judicial system out of the hands of the elites and into those of the common people. As de Tocqueville noted, ‘The jury is the most direct application of the sovereignty of the people.’ He further observed that since juries sat in judgment of their neighbors, they ‘teach men equity in practice’ since he may one day be judged himself.”(2)

Thomas Paine argued in his pamphlet, Common Sense, which served as a call for independence and revolution, that the rule of law must be of the people. “In America the law is king. For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.”(3)

Without the rule of law, there can be no justice. True justice is only possible when a society, and its people, ensure that the rule of law is followed.

According to William Blackstone, sound principles of law must be based on God’s law.(4)  Among these principles are that “God’s code of divine law reveals that it is designed to promote, preserve, and protect man’s unalienable rights.”(5)  The rule of law that defines a society, to be a system which secures rights and ensures justice, must be rooted in a foundation of the Laws of Nature and of Nature’s God. To reject a godly foundation in a nation’s system of laws and constitution is to doom liberty. Examples revealing the need for a godly foundation can be found readily in history. The American Revolution, and the founding of the United States, was forged through biblical principles and God’s law. The French Revolution, and the new French Constitution of the period, was modeled to be similar to its American counterpart in every way except reliance on the protection of divine Providence. France rejected constructing their system upon a fundamental foundation of biblical principles. The French considered themselves too reasoned and enlightened. They rejected a biblical foundation because they had had their fill of the influence of an established church throughout their recent history, and the French felt the best way to avoid the damaging influence of a system teetering upon becoming a theocracy was to reject The Church, and all of the trappings of its power-hungry leaders, outright. The legal system in France followed suit, and chaos ensued. Due Process, like the rule of law, was administered based on secular rules and proceedings. France became violent, unable to achieve the liberty obtained by America, and through the chaos a dictator emerged in order to bring order to the bloody violence of anarchy.

At the base of the foundation of due process in the United States is a concept that dates all the way back to ancient Israel. The concept was also one that served as a similar pillar of the Saxon System. “Accused persons were presumed to be innocent until proven guilty. Evidence had to be strong enough to remove any question of doubt as to guilt. Borderline cases were decided in favor of the accused and he was released. It was felt that if he were actually guilty, his punishment could be left to the judgment of God in the future life.”(6)

In the Bill of Rights of the United States Constitution, the Fifth and Sixth Amendments focus on due process.

The Due Process Clause in the Fourteenth Amendment is considered to draw the federal government further into the issue. The amendment is believed to be a guaranty against any arbitrariness on the part of the government whether committed by the legislature, the executive or the judiciary; both at the federal, and State level. If the law itself unreasonably deprives a person of his life, liberty or property, then he has been denied the protection of due process. If the enjoyment of his rights is conditioned on an unreasonable requirement of law then again his due process is likewise violated. Any government act that militates against the ordinary norms of justice or fair play is considered an infraction of the great guaranty of due process and this is true whether the denial involves violation merely of the procedure prescribed by the law or affects the validity of the law itself.

An individual must always be given the opportunity to have his day in court. Legislators cannot legally, in terms of being consistent under the rule of law, simply pass legislation condemning individuals who are considered lawbreakers with imprisonment (a legislative act prohibited by the United States Constitution, labeled in the document as a “bill of attainder” – Article I, Sections 9 and 10). Neither can law enforcement simply arrest individuals and confine them in prisons without the showing of any probable cause or evidence (Habeas Corpus).

The law, in itself, must be valid and must have a valid governmental purpose. Individuals, if due process is being followed, shall be heard first, to be given opportunity to present evidence on his behalf and to be heard by an independent and impartial court before he can be convicted for a crime.

Statism always seeks to compromise due process because no individual should be able to question the government, nor be considered innocent when the ruling class deems them guilty.

Statism can't survive if people are free to choose whether they agree with the government, or not. People who are free to say what they want will criticize statism's many failures, and question the ruling elite in charge of running the governmental leviathan.

“Justice” is a key principle of a free society, so statism seeks to use “justice” against the system. By demanding justice, be it “social justice,” or “economic justice,” or any other “justice” you can think of, coupled with demands for compliance because of “political correctness,” due process can be bypassed without ever having to even consider involving the courts. In the court of public opinion, offenders are charged, found guilty, and punished before the person can even declare innocence.

In the United States we have seen the elimination of due process at multiple levels.

Through governmental agencies, due process has been removed regarding cases involving the Internal Revenue Service, and Child Protective Services. In the case of the IRS, the agency is assumed to be correct, therefore the taxpayer is automatically assumed to be in error. Without due process, the IRS can search and seize in order to ensure the proper amount of taxation is achieved. CPS can act without due process, acting quickly upon a single complaint by a neighbor or family member, establishing their own set of rules to determine what is a violation. In both cases, the justification for abandoning due process is that their actions are “for the common good,” or “for the good of the community.”

In the name of “social justice” the concept of due process is also being abandoned. Societal pressure to accept norms based on the whims of the culture are presented through political correctness and accusations of “hate speech.” To disagree with the social justice agenda is considered “judgmental,” enabling them to be judge, jury and executioner without due process, or even without the rule of law even being considered.

The judgment, in many cases regarding social justice, has already been provided by God. God is the standard of morality.(7)  While man’s law views refusal to agree with the whims of society “intolerant and wrong,” the proponents of social justice refuse to recognize that they themselves are being intolerant, and that they have abandoned the concept of due process.

In other words, due process is not possible in a system that abandons the rule of law for the rule of man. The rule of law is not possible if the members of the society are not virtuous.

John Adams wrote in a letter to Zabkiel Adams on June 21, 1776, that “Statesmen, my dear Sir, may plan and speculate for Liberty, but it is Religion and Morality alone, which can establish the Principles upon which Freedom can securely stand. The only foundation of a free Constitution is pure Virtue, and if this cannot be inspired into our People in a greater Measure than they have it now, they may change their Rulers and the forms of Government, but they will not obtain a lasting Liberty. They will only exchange Tyrants and Tyrannies.”(8)

Statism, in order to define the law to fit their own standards, seeks to eliminate virtue, and any connection to the Laws of Nature and of Nature’s God. The drive to accomplish the task to remove “religion” from our culture began early, but has been in full swing over the last 150 years.

In Cupertino, California in November of 2004 a fifth grade teacher, Stephen Williams, was forbidden to teach vital documents of American history, as the school’s principal explained, because it would be a violation of the separation of church and state. In a statement to the media by Mr. Williams’ lawyer from the Alliance Defense Fund, Gary McCaleb, said, “The district is simply attempting to cleanse all references to the Christian religion from our nation’s history, and they are singling out Mr. Williams for discriminatory treatment.”(9)

Hate crime laws and cultural social justice seek to punish religious freedom, and control private thoughts and beliefs. Since the purveyors of anti-religious ideas are typically in the minority, the task is accomplished through tyrannical means following an infiltration into the legal system by those loyal to the statist cause. Every action by citizens who are not members of the protected groups is considered to be potentially a hate crime. Disapproval on moral grounds is then judged to be inappropriate and unacceptable. The “epidemic” of hate crimes is then considered to be so out of control that the establishment cannot be bothered by due process, and when due process is used, by then the system is so corrupted that a citizen’s day in court becomes a formality, and guilt is assumed despite any argument to the contrary.

The so-called “hate crime epidemic” is no epidemic at all. The goal is to criminalize a person’s thoughts through a system that claims to be protecting a victim class. They claim to be defending a “live and let live” mentality, but have no intention of being tolerant of any views that oppose their own. Offenders are ridiculed into silence, or forced to endure sessions where defenders of social justice scream profanities or threaten physical harm. Due process, at this point, ceases to apply to all. The members of the victim class, be it homosexuals, #BlackLivesMatter, pro-abortion activists, or other politically protected members of a statist-defined victim class, are immune to the law and therefore have no need for due process. The recipients of their rage are automatically considered guilty, and through societal pressure are reeducated or silenced without the need for due process.

Historically, when statist systems arise, the centralization of power to a ruling elite automatically leads to a systematic suspension of due process, as observed by Richard Drake as he examined Marxism’s history in Italy.(10)

The suspension of due process is always the ultimate goal, and in the case of Saul Alinsky, he would be proud of how social justice has been accomplishing that feat in the United States.

“Alinsky’s most useful tactic involves creating a good versus evil scenario. It is not about fixing the problem, it is about blaming someone.”(11)

Is that not what we’ve seen in the drive for social justice by victim classes?

We saw the elimination of due process through social justice when protesters descended upon a scheduled speaking engagement for 2016 Republican Presidential Candidate Donald Trump in Chicago, Illinois. Guilt was automatically applied by the politicians, the media, and the agitators to anyone who claimed to support Donald Trump’s candidacy. The billionaire's supporters were automatically racists, haters, bigots, and anything else the mob could come up with, and their argument was anchored in “social justice.” Due process was never a consideration because they considered themselves to be righteous and correct, and no amount of evidence could convince the mob otherwise.

The March 11, 2016 chaos was orchestrated by Alinsky-style agitators who had pre-planned the protest specifically to silence opposition to their cause. Alinsky agitators are fine with suspending due process for their opposition because they believe their freedom of speech and to believe what they want to believe is more important than anyone else's. All others must be silenced.

Social justice and the claim of hate-speech reigned supreme as the protesters their level of intensity and violence. The agitators were worked into a frenzy by the tilted media coverage, who screamed in agreement with the protesters that all Republicans are evil racist bigots, especially if they are Trump supporters.

The agitators were not there to achieve a purpose. They were there simply to be against Trump, and to ensure the voices of liberal left statism were silenced. The seeds of the protest were planted long before, throughout our history as a country, and they were cultivated by Barack Obama. Obama encouraged class warfare, calling for his citizen storm-troopers to react when they were faced with anyone who dares to disagree with the Democrat brand of statism. Trump's supporters were guilty for merely supporting the billionaire businessman, and no amount of due process was even going to be considered as the agitators voiced their rage.

Donald Trump cancelled the rally in Chicago under the advice of the police.

The violent agitators we saw in Chicago do not come a dime a dozen. They are trained. Coached. Taught the way of agitation. The drive is a demand for social change and upheaval, regardless of the rule of law. The offenders are guilty, despite their cry of innocence. No due process is allowed for those who are automatically guilty because the mob deems it to be so.

In the case of the Chicago protests that cancelled the Trump event, those who stand against the drive to establish statism, which in turn would eliminate any vestige of due process for any person that dares to stand against the statists, did not know how to react. We, as defenders of the constitution, because we are not collectivists, did not recognize any strategy to combat what the protesters were doing. We have no army of agitators waiting to storm the streets.

The protesters were largely shipped in. Many of them were paid by the leftist establishment to agitate. The protest was planned long before Trump even emerged. And the opponents of statism didn’t even see it coming.

A reader of my articles online who lives in Canada recognized the error of the conservative right in having no plan to respond, and provided the following plan of action to be considered by Trump’s supporters should a similar situation emerge at a future event.

“Trump supporters,” she wrote, “should sign on to moveon.org and get a protester sign. With their signs in hand, the Trump supporters need to join in the protests, telling their fellow protesters against Trump that they are being paid $200 per day to be there. Other Trump supporters could say they are getting $400 per day, and others could say they are getting $600 per day. The agitators would begin to fight among themselves to get more money. If a $50 a day protester is standing beside someone they believe to be a $400 per day protester, chances are he will throw down his protest sign in disgust saying ‘why should I waste my time for $50 per day when that guy is getting $200/$400/$600 per day? I quit.’ In a crowd like we saw in Chicago, fifty Trump supporters infiltrating the protest could to a lot of damage to the agitation effort. Most of the protesters are only doing it for the money, anyway. The protesters greed for more money can be their undoing.”

A little creative planning can foil the plans of the statists to destroy due process through societal agitation and social justice.

While Statist agitators clothe their efforts in proclamations of peace, love, tolerance, diversity, multi-culturalism, and community, the reality is that they are greedy, angry and violent people who are willing to do anything they can to silence their opposition. While claiming the other side is hateful, and racist, it is truly them who have become hate-filled, and are acting in a violent manner as they spew their own racial division. They want the fires of violence because they have been trained to. They want to stop their opposition, no matter what it takes.

Karl Marx believed that once communism was achieved, the big government system of socialism would fade away. The way to achieve Marx’s communist utopia was by force, through big government control, violent statism and the destruction of individualism and individual rights.

From their point of view, their freedom of speech can shut down someone else's freedom of speech. Tolerance is only a one way street with these people. . . and they are not even willing to tell you why - nor do they even know why.

Among the strategies seeking to eliminate due process, another tactic is based in the concept of psychology. Opposition is viewed by the statists as being a mental disorder. Mental Health is a concept that reaches beyond typical law, and traditional views of due process cannot be applied. “How,” asks the statist, “can the mentally ill be given due process when they do not even understand their psychological affliction?”

Using mental illness as a way to circumvent due process walks hand in hand with the List of 45 Declared Goals of the Communist Takeover of America, as listed in W. Cleon Skousen’s, “The Naked Communist.”(11)

38. Transfer some of the powers of arrest from the police to social agencies. Treat all behavioral problems as psychiatric disorders which no one but psychiatrists can understand or treat.

39. Dominate the psychiatric profession and use mental health laws as a means of gaining coercive control over those who oppose Communist goals.

Each of the strategies being used in the name of “social justice” have attached to them the alleged stigma of mental illness. Mental illness is also being used as an excuse to confiscate the rights of individuals through legislation and agency regulation. No due process is necessary if the person is mentally ill, because the action without due process is being performed to protect the community from the potentially dangerous activities of the mentally ill person. How can society demand due process for a person who is mentally ill? Are the mentally ill even capable of understanding their transgression?

Once due process is compromised by the use of the claim that opposition to an authoritarian government is merely a psychiatric disorder, rounding up those who dare to stand against statism becomes easy, and is even encouraged by a population who is convinced that the good of the community is being secured by the removal of the “sick” individuals from society.

The federal government circumvents due process in the name of national security, as well. The first case emerged in 2011 when the Obama administration made the decision to kill Anwar al-Awlaki, a U.S. Citizen who was also an al-Qaeda propagandist. According to the lawyers for the Obama administration, the ability to kill an American citizen without trial is allowed when it is necessary for national security against Islamic terrorism.

The Authorization to Use Military Force (AUMF) is a broad and controversial 2001 law that played a major role in the legal decision to kill Anwar al-Awlaki. A memo released by the federal government in defense of their decision read:

"We believe that the AUMF's authority to use lethal force abroad also may apply in appropriate circumstances to a United States citizen who is part of the forces of an enemy authorization within the scope of the force authorization," reads the Justice Department memorandum, written for attorney general Eric Holder on 16 July 2010 and ostensibly intended strictly for Awlaki's case.(12)

Among those circumstances: "Where high-level government officials have determined that a capture operation is infeasible and that the targeted person is part of a dangerous enemy force and is engaged in activities that pose a continued and imminent threat to US persons or interests."(13)

The AUMF is unbounded by geographic or time limitations, indicating the wide berth the Obama administration provided for understanding its powers for the potential targeting of US citizens.

Awlaki was killed by a US drone strike – the first such lethal strike known to have deliberately targeted an American citizen. An earlier US assault on Awlaki, in December 2009, predated the memo, so the Obama administration believed all along it had the authority to target and terminate American Citizens without due process.

The Obama administration officials insisted that Awlaki was an operational leader of al-Qaida in the Arabian Peninsula, which in 2009 and 2010 attempted unsuccessfully to detonate bombs inside the U.S.

In a white paper the Obama administration defended their actions. "Just as the AUMF authorizes the military detention of a US citizen captured abroad who is part of an armed force within the scope of the AUMF, it also authorizes the use of 'necessary and appropriate' lethal force against a US citizen who has joined such an armed force," reads the memo, written by former Justice Department lawyer David Barron, who also analyzed and rejected arguments that killing Awlaki would be tantamount to murder. "It is true that here the target of the contemplated actions would be a US citizen, but we do not believe al-Aulaqi's citizenship provided a basis for concluding that section 1119 would fail to incorporate the established public authority justification for a killing in this case."(14)

A legal battle emerged intended to prevent the administration from killing Awlaki or any other US citizen without trial, was lost by the Obama administration. The ACLU and the New York Times then sought to compel the release of the controversial memo. The Obama administration’s loss was then followed up by a challenge by Republican senator Rand Paul to deny Justice Department lawyer David Barron a federal judgeship. The Obama administration agreed not to fight the document's disclosure.

"The release of the legal memorandum follows the administration’s decision last month not to appeal the court’s decision. The material being released is consistent with the administration’s previous statements on this issue," said Justice Department spokesman Brian Fallon.(15)

The suppression of the memo, and the challenge to force it to be revealed, took various forms and arguments over the years, despite repeated official confirmations about the drone strikes, including from the president; despite the confirmed killing of four Americans, three of whom are claimed to have been killed accidentally, including Awlaki's 16-year-old son; and despite the 2013 leak of a memo summarizing the Justice Department's arguments about so-called "targeted killing" for Congress.(16)

The redacted version of the memo released, however, does not reveal much of the factual basis for the government's claims that Awlaki represented an imminent threat to the United States. It refers instead to Awlaki as a "leader" who was "continuously planning attacks" against the U.S., without providing an evidentiary basis for claims central to the extraordinary circumvention of normal due process procedures. Nor do the public sections explain why capturing Awlaki was not feasible, nor why the Justice Department believed it need not have provided Awlaki with judicial process.(17)

The CIA, which along with the military's special operations forces sought authority for the strike, declined to comment. Barron was confirmed by the Senate to the federal bench on May 22, 2014.(18)

The Justice Department memo "confirms that the government’s drone killing program is built on gross distortions of law", said Pardiss Kebriaei, a lawyer with the Center for Constitutional Rights who challenged the Awlaki killing, who added that the "forced transparency comes years late".(19)

U.S. senator Ron Wyden praised the memo's release and called for more transparency. "For example, how much evidence does the president need to determine that a particular American is a legitimate target for military action? Or, can the president strike an American anywhere in the world? What does it mean to say that capturing an American must be ‘infeasible’? And exactly what other limits and boundaries apply to this authority?" he said. "I urge the executive branch to build on today’s disclosure and start answering these additional questions."(20)

While it is understandable that the government must have the ability to confront, and eliminate, members of an enemy force during a time of war, even if that fighter turns out to be an American that has flown the coop, the fear is that once the executive has the authority to kill Americans at will without due process in the name of national security, it will not be long before the government begins targeting citizens domestically for merely disagreeing with the leadership for any reason in the name of sedition. How long before the term “terrorist” is redefined to include those who hold a political position that differs with that of the ruling administration? How long before the political party in charge begins to use the authorization to use military force against members of the opposing party because the opposing political views are categorized by the ruling party as a threat to national security? The possibility of this kind of tyranny may seem farfetched on the surface. It all goes back to that “camel’s nose in the tent” idea. We give an inch, and tyranny takes a mile. Understanding the nature of tyranny, why would we willingly open the door to a potentially tyrannical consequence? If we are willing to allow the federal government to disregard an American’s right to due process in the name of national security, how long before the federal government expands that perceived authority to domestic cases? At what point can we say we have given the government too much authority when it comes to tossing aside due process?

The executive branch believes it is above the law, and therefore not bound by the constitutional concept of due process. Similar attitudes towards the law may be historically observed most often in totalitarian regimes.

In Britain, when the king believed he was above the law, the citizenry revolted in 1688. The Glorious Revolution led to the English Bill of Rights, the document the American Bill of Rights was fashioned after, in which due process makes its first appearance in the U.S. Constitution. In the Saxon System from which our American System finds its roots, due process is not only a legal concept, but a God-given right that may not be infringed upon by the ruling class that inhabits the halls of government.

-- Political Pistachio Conservative News and Commentary

(1)"The Magna Carta." U.S. Constitution Online.  29 February 2016.  Web.  http://usconstitution.net/magna.html

(2) Hancock, John L., Liberty and Prosperity: How the Saxons Created the Modern World.  Los Angeles: Liberty Lane Media, 2015.  Page 37.  Print.

(3) Paine, Thomas, Common Sense.  New York: Barnes and Noble, 1995.  Page 40.  Print.

(4) Skousen, W. Cleon, The 5000 Year Leap: The 28 Great Ideas That Changed The World.  Washington, D.C.: National Center for Constitutional Studies, 1981, 2010.  Page 132.  Print.

(5) Ibid.

(6) Ibid., page 17.

(7) Turek, Frank, Correct, not Politically Correct: How Same-Sex Marriage Hurts Everyone.  Charlotte, N.C.: Cross Examined dot org, 2008, 2013. Page 91.  Print.

(8) "John Adams: Foundation of a free constitution is pure virtue."  The Federalist Papers Project.  March 25, 2016.  Web.  http://www.thefederalistpapers.org/founders/adams/john-adams-foundation-of-a-free-constitution-is-pure-virtue

(9) Sheldon, Louis P., The Agenda: The Homosexual Plan to Change America.  Lake Mary, F.L.: Frontline, 2005. Page 79.  Print.

(10) Drake, Richard, Apostles and Agitators: Italy's Marxist Revolutionary Tradition.  Cambridge: Harvard University Press, 2003.  Pages 181-182. Print.

(11) Skousen, W. Cleon, The Naked Communist.  Salt Lake City: Ensign Publishing Company, 1971.  Pages 261-262.  Print.

(12) "U.S. Cited Controversial Law in Decision to Kill American Citizen by Drone."  The Guardian.  26 March 2016.  Web. http://www.theguardian.com/world/2014/jun/23/us-justification-drone-killing-american-citizen-awlaki

(13) Ibid.

(14) Ibid.

(15) Ibid.

(16) Ibid.

(17) Ibid.

(18) "Senate Confirms David Barron to be Federal Judge."  MSNBC.  26 March 2016.  Web.  http://www.msnbc.com/msnbc/david-barron-confirmed

(19)  "U.S. Cited Controversial Law in Decision to Kill American Citizen by Drone."  The Guardian.  26 March 2016.  Web. http://www.theguardian.com/world/2014/jun/23/us-justification-drone-killing-american-citizen-awlaki

(20)  Ibid.