Killing Due Process in the War on Terror

One striking feature of the U.S. Constitution is the number of procedural rights guaranteed to individuals accused of criminal behavior before they can be deprived of life, liberty, or property.  The overall guarantee of due process of law contained in the Fifth and Fourteenth Amendments constitutes the basic foundation, but there are many other protections.  The Fifth Amendment, for example, also specifies that no person “shall be held to answer for a capital, or other infamous crime, unless on a presentment or indictment of a Grand Jury,” except under certain circumstances in the Armed Forces.

The Sixth Amendment is perhaps even more central to the concept of due process, since it enshrines the right to a “speedy and public trial by an impartial jury.”  Moreover, the accused must be informed “of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”  Finally, the Eighth Amendment bars “cruel and unusual punishments,” which is a barrier to using torture to extract information from suspects.  In addition to such specific constitutional protections, there is the long-standing doctrine in Anglo-American law that one is presumed innocent until proven guilty.

Historically, those crucial rights have been...

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