Editorial: The government vs. the Constitution

The American Civil Liberties Union and other organizations recently filed a lawsuit accusing the federal government of, among other lapses, denying due process to mothers with children detained at the border, including interfering with their efforts to obtain legal advice to guide them in appearances before immigration judges. The case is complicated, but it highlights a trend in government disregard for rights once seen as vital — among them, the right to be informed of charges and have a meaningful opportunity to rebut them, to be represented by counsel and to appeal adverse rulings. In pursuit of real and exaggerated threats to national security and public safety, and in sometimes misguided attempts at efficiency, both major political parties have become complicit in the worrisome erosion of these basic principles.

We have seen it in the secretive “no-fly list,” a system in which people deemed suspicious and barred from commercial flights are not told they are on the list, or why, and thus must guess at what evidence to refute when they appeal to be removed. We have seen it in the amassing of more than 1 million people’s names in the “terrorist screening database,” many included simply because they know someone who is already listed. We have seen it in the months-long detentions of suspected illegal migrants without the opportunity for a bail hearing. We have seen it in the National Security Agency’s indiscriminate collection of Americans’ telephone data.

And we have seen it in President Obama’s assertion that he has the right to kill U.S. citizens overseas without judicial or legislative oversight if he believes it is “infeasible” to capture an American involved in terrorism who poses an imminent threat to the United States — a disconcertingly elastic standard. The government has yet to detail the imminent threat posed by Anwar Awlaki, an American-born Al Qaeda operative killed by a U.S. drone missile in Yemen in 2011.

In all of these examples, the federal government has emphasized expediency and its own preferences above individual rights, particularly the right to due process and to seek redress from the courts as established under the 5th Amendment, and, in cases such as unaccompanied minors detained at the border, through statute. Critics frustrated with unilateral actions by the White House on matters of government policy have derided Obama’s “imperial presidency,” a condemnation that rings more of politics than of a true power grab. But when it comes to ignoring 5th Amendment guarantees of due process, the crown fits.

In some ways, Obama is echoing history. The federal government has often found due process and other constitutional protections to be cumbersome during times of real or perceived threat, from the Alien and Sedition Acts of 1798 to Abraham Lincoln’s Civil War suspension of habeas corpus to the summary deportations of foreign-born suspected radicals during the 1920s “Red scare.” The internment without criminal charges of Japanese Americans during World War II remains an ugly stain. The Cold War brought the prosecution of communists over their political philosophies, and during the Vietnam War, government agents spied on antiwar groups. Most recently, the Sept. 11 terrorist attacks gave rise to the Patriot Act, which remains the law of the land despite its trampling of individual civil liberties, including the government’s ability to track, without your knowledge, what books you buy or check out from a library.

The government has a right and a duty to be selective about who is allowed to join American society as a legal resident and as a naturalized citizen. Immigration laws should be enforced even if they are archaic and dysfunctional. The president has a responsibility to safeguard the nation against acts of terror from abroad and from within. But the government is not free to take shortcuts in the conduct of its business, especially when its actions compromise core values of the nation. It is absurd to violate constitutional principles in the name of enforcing laws.

The Obama administration should ponder its oversteps and missteps on that front, and recommit to actions that are consistent under the law and with our fundamental legal principles.

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