Concerned About Due Process? Forget About Drones for a Second

Consider, instead, the erosion of due process here at home in our courtrooms.

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Jonathan Ernst/Reuters

A journalist I very much respect and admire asked me last week why I haven't written more about the Obama Administration's so-called "drone policies," especially as they relate to the targeted killings of U.S. citizens abroad. I have written quite a bit about it -- here, here, here and here, for example -- but it is true that I have not focused on the subject the way many of my colleagues have. It has taken me a few days to come up with a response to that good question. Here is my answer:

I agree that there is much to fear about about a policy which authorizes the executive branch to execute a U.S. citizen without trial, conviction, or any sort of judicial review. The abrogation of the concept of "due process" in these circumstances is profoundly disturbing and, I would argue, already tending to reduce core constitutional protections for U.S. citizens living here at home. Once we concede that the Obama Administration can kill a citizen suspect abroad without first convicting him in any court of law, it it isn't too much of a stretch, as we saw last week, to argue, as some officials did, that a citizen suspect here at home doesn't deserve to be advised of his Miranda rights even after the charges against him have been filed.

This policy, it is true, represents a threat to the rule of law with enormous technological, legal, and international ramifications. But staring us all in the face are government policies and practices, and legal standards and rules, which every day in this country deprive ordinary American citizens of some of their most vital constitutional rights. These are not mere threats to the rule of law. These do not target a few terror suspects here and there in some esoteric or hypothetical way. These are instead ongoing violations of constitutional rules and basic due process rights impacting millions of Americans. They are real. They are pervasive. And no one seems to care.

I write about these other legal issues as much as I do -- as much as I can, actually -- because I believe that they best expose the vast and widening gulf between the justice that America promises to its citizens and the injustice it too often delivers to them. Think of my choice of editorial priorities as you would a house. The drone debate is fashionable today. It's the awnings and the windows and the sunroof. But these other issues are the very foundation of the house itself. If we cannot deliver daily justice to the average citizen, then we shouldn't expect as a nation to deliver a measure of justice to a terror suspect in Yemen.

Concerned about due process? Great. You should be. But don't just focus on the drones and what may or may not happen someday inside the Situation Room at the White House. Focus instead on the sad fact that your fellow citizens are routinely imprisoned after sham legal proceedings -- often taking just a few minutes, without any adequate pretrial or pre-plea investigation -- conducted in far too many cases without the aid of competent counsel or with the aid of overworked, underpaid, overwhelmed lawyers. These defendants aren't terror suspects. They are simply too poor to afford their own lawyers. We've created and tolerated a medieval system whereby your wealth determines the justice you receive. How about we fix that before we move on to drones?

Two weeks ago, at the District of Columbia Judicial and Bar Conference, Yale Law School lecturer Stephen Bright, of the Southern Center for Human Rights, made the point more eloquently than I ever could. Speaking of our nation's disgraceful failure to provide even the most basic legal rights to millions of our citizens, speaking of the failure of the Obama Administration to make good upon its promise of equal justice under law, speaking of the failure of the courts to force recalcitrant states to do right by their citizens, Professor Bright told the audience:

There is a culture of no representation or only token representation in many parts of the country. There are no counsel courts, courts with counsel in name only, meet 'em and plead 'em courts, and lawyers generally known as walking violations of the Sixth Amendment.

I go to courts where it looks like a slave ship has docked outside the courthouse. Prisoners, mostly black men, are hauled into court in handcuffs and chains wearing jail jumpsuits. A lawyer or lawyers speaks briefly to each of them, but, because the prisoners are handcuffed to each other, the conversations are not confidential. The lawyers are unable to give professional advice because they know nothing about their clients or their charges. Nevertheless, after these brief conversations, a judge takes the bench and accepts guilty pleas from most of the defendants and pronounces sentence. That is all these defendants will see of a lawyer and a judge.

I see judges announce to courtrooms packed with people accused of crimes who are out on bail that they should speak to either the district attorney or the public defender about their cases without suggesting that it might be more appropriate to speak to one as opposed to the other. The judge leaves the bench and people line up to speak with the prosecutors or public defenders. In a couple of hours, the judge returns and accepts guilty pleas from most of the defendants.

I have seen judges take guilty pleas from defendants in groups ranging from a few people to as many as 17. In Georgia, those with public defenders pay a $50 fee; those who deal directly with the prosecutors do not.

This is happening today in America. It is happening everywhere. Yet no one ever asks the President at his infrequent press conference about why his administration tolerates such pervasive injustice. No one ever petitions Congress to hold hearings on the plight of these poor people. Rarely are judicial nominees asked about the demise of the Sixth Amendment's right to counsel. It's old news -- it's been happening ever since the Supreme Court recognized the right in Gideon v. Wainwright -- and Americans like to focus on the next shiny thing. Today, that thing is drones. Fair enough. But I dissent. The right to counsel may be old news. But in my view it's a timeless classic we ignore it at our own peril.

That's my long answer. The short answer to my friend's question is this: There are more than enough journalists today writing about drones, and not nearly enough journalists today writing about the less sexy constitutional violations all around us. I'm entirely comfortable, and feel like I am doing something particularly worthwhile, by zigging here when so many of my colleagues have chosen to zag. Put another way, when it comes to constitutional violations, I'd rather write about a million unidentified indigent Americans than a single identified Yemeni-based terror suspect. Here's Professor Bright again:

The Attorney General's plan for action regarding indigent defense, which he discussed on March 15, sounds pretty good until you do the math. He announced $1.8 million in new resources and tools, along with previously announced $1.2 million Answering Gideon's Call grant program that is providing funding to four states, $1.6 million for National Institute of Justice research projects, and other grants and technical assistance of less than $1 million each. The initiatives discussed that day cost around $5 million. That would not make a dent in the public defense system in one state except perhaps Rhode Island.

There is other funding with regard to the Department's Access to Justice Initiative, loan forgiveness, training and small grants, but it is doubtful that the Department spends much over $10 million on implementing the constitutional right to counsel in criminal cases, a minute fraction of the $1.1 billion the Department spends in support of state and local criminal justice systems. On the other hand, the Department spends $316 million on its Byrne Justice Assistance Grants, most of which go to state law enforcement agencies and prosecutors.

The Government Accountability Office reported last summer that states allocated only seven-tenths of one percent of Byrne JAG money to indigent legal defense over a five-year period. Local governments allocated even less one-tenth of one percent. Over the five years, law enforcement received $1.8 billion, prosecutors and courts nearly $300 million, and indigent defense only $22 million.

Never mind the death of Anwar al-Awlaqi. Never mind the ambiguities of a "targeted killing" memo. Those disparity in those figures the professor cites are the most pressing scandal in a nation that pretends to worship and abide due process under law.

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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