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Opinion: Even When Process Is Due, It May Not Mean Justice

Any talk of chipping away at due process should scare us, though the law hasn’t always worked

Members of the Mochida family are shipped off to an internment camp during World War II. It wasn’t so long ago that our nation’s courts sanctioned such flagrant injustice, Curtis writes. (Courtesy National Archives and Records Administration)
Members of the Mochida family are shipped off to an internment camp during World War II. It wasn’t so long ago that our nation’s courts sanctioned such flagrant injustice, Curtis writes. (Courtesy National Archives and Records Administration)

I remember it so clearly, though I was just a girl when the 1960s scene unfolded: My parents returning from a church dance in good spirits and being met with bad news and a bit of hysteria from the rest of the family. My brother Tony had been arrested for wanting to be seated and served at the Double T Diner in my home state of Maryland.

My parents and members of Tony’s civil rights group were able to get Tony home; my parents had the deed to the house ready, in case they needed it for bail.

And it was all legal, all done with “due process,” following the trespass laws of the time that allowed segregation in public businesses whose owners decided which members of the public they served. Thanks to the efforts of activists like my three oldest siblings — who broke the rules they and many others believed were unjust and contrary to America’s ideals — those laws are no longer on the books.

But this was life in the United States of America, when the police — whose salaries my parents indirectly paid — could be called to haul someone off to jail for craving a burger and fries because one person said, “You are not allowed in.”

Though it was not that long ago, the folks whose families were not touched seem to want to ignore how devastating it can be to a country and its citizens when its policies favor or disfavor certain people — indeed, entire groups of people.

When some Americans brush aside the president’s call to suspend due process for those seeking asylum on the southern border, despite the legal rights extended to all persons, not just citizens, in national and international law, it might not seem like that big a deal. They might think due process exemption could never touch them, their families or friends because they do things the right way.

But it sends a chill through those who realize where that kind of thinking can lead — has led.

Watch: Trump Asks GOP Lawmakers for Border Wall Funding

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Misrule of law

This week’s Supreme Court ruling that approved the Trump administration’s travel ban while ignoring his statements demonizing Muslims ironically spurred a reminder of an unjust time in America’s not that distant past, when the same court approved the World War II era internment of Americans of Japanese descent, including citizens.

Chief Justice John G. Roberts finally tossed out that ruling against Fred Korematsu, an action that Justice Sonia Sotomayor, dissenting in the travel ban case, praised even while pointing out the similarities between then and now. In both cases, she wrote, the court deferred to the Trump administration’s invocation of “an ill-defined national security threat to justify an exclusionary policy of sweeping proportion,” relying on stereotypes about a particular group amid “strong evidence that impermissible hostility and animus motivated the government’s policy.”

When turning a not unrelated gaze on the confusing scene at the U.S. southern border, it looks complicated. There are legitimate legal and constitutional interpretations when it comes to the issue of illegal immigration, and how and where one arrives. For example, the rules for refugees differ from ones for those seeking political asylum. And as explained in a New York Times primer, the Department of Homeland Security under current policy can use criteria for expedited removal of undocumented migrants.

You can be appalled at the laughter that greeted Attorney General Jeff Sessions’ icy jokes about separating children from parents and also have concerns about border safety and immigration policy. But Americans should be able to see every man, woman and child as individual human beings, with different circumstances — and recognize the need for more caution instead of a decision to throw caution to the wind.

It was the due process of a court challenge and judgment that led this week to an order to reunite separated families in 30 days, or 14 days for children under 5 years old.

Considering what this country has done under protection of law, who could be confident that things will turn out OK when due process is suspended for any reason?

What is due

Some of this concern is personal. If the government chooses who does and does not deserve certain rights, I’m pretty sure this African-American woman would be judged to be on the “wrong” side of “them” vs. “us,” though my ancestors have been here for generations.

I also see the sad humor in knowing that my husband, whose grandfather managed to make it across the Atlantic Ocean on a boat at the turn of the last century, would be considered an exemplary “us,” since that granddad came from Norway, the equivalent of a golden ticket in Trump’s America. Come to think of it, Trump’s own family members, by blood and marriage, were pretty late to the American party as well, but get nary a side-eye.

A lot of this concern, though, is patriotic.

To be exceptional, countries have to be vigilant, and not set up entire races and types of people as the “other,” as invaders, as not deserving of the rights that make America great, at least when we manage, kicking and screaming, to adhere to them.

When NFL players protesting police brutality are told they should, perhaps, leave their country, even as a Pennsylvania police officer is charged with shooting in the back an unarmed black teenager running from a traffic stop, then what chance does an asylum seeker fleeing violence have to be heard?

That’s why any talk of chipping away at due process for anyone is scary to me, and should be even for those secure and far too complacent in the knowledge that they would never find themselves on the wrong side of that dividing line.

In 2018, my brother is considered a hero, willing to break the law for the greater American good. But at the time, knowledge of what should be didn’t give him or my parents any power or comfort.

Roll Call columnist Mary C. Curtis has worked at The New York Times, The Baltimore Sun, The Charlotte Observer and as national correspondent for Politics Daily. Follow her on Twitter @mcurtisnc3.

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