by Jacob G. Hornberger
As Glenn Greenwald points out in his excellent analysis of the Megaupload case, immediately after opponents of SOPA and PIPA caused congressmen to back off from their proposed Internet legislation, the Justice Department stepped up to the plate and arbitrarily shut down Megaupload, one of the world’s largest websites. As Greenwald put it, the message from the Justice Department, whether intended or not, was clear:
Congratulations, citizens, on your cute little “democracy” victory in denying us the power to shut down websites without a trial; we’re now going to shut down one of your most popular websites without a trial.
I wish to amplify on the due process considerations that Greenwald emphasizes in his blog post.
The term “due process of law” stretches back to the year 1215, the year of Magna Carta. In that document, King John acknowledged that his power over the English people was not total. He agreed that no longer could the King (or the British government) seize people or their property in violation of the “law of the land.”
That phrase — “law of the land” — ultimately evolved into the phrase “due process of law,” a phrase that our American ancestors incorporated into the Fifth Amendment to the Constitution.
While there has never been a precise definition of “due process of law,” at a minimum it has come to entail the concept of notice and hearing. Before the government can deprive a person of life, liberty, or property, due process requires that notice first be given to him and then he be accorded a hearing or trial at which he has the opportunity to contest what the government is doing to him.
Consider, for example, the Megaupload case. The government wants to punish the owners of that website for allegedly engaging in intellectual piracy. The government is convinced that the website owners have violated federal criminal law. What many U.S. officials would like to do, in their ideal world, is simply arrest the malefactors and punish them with fines and incarceration, just as they do with some suspected terrorists.
The problem is that our constitutional order and legal system don’t permit them to do that with respect to intellectual piracy. That’s not to say, of course, that our constitutional order and legal system permit them to do so with suspected terrorists either. But they simply haven’t gotten to the point where they’re willing to stretch the no-due-process principle to intellectual piracy cases. (We’ll omit from this discussion the U.S. government’s assassination program, which, of course, deprives a person of life without due process of law.)
The grand jury indictment in the Megaupload case is the notice requirement involved in due process of law. An indictment is nothing more than a formal statement advising the person of what particular federal law he’s being charged with violating. As the judge will later tell the jurors in the case, an indictment does not constitute evidence of wrongdoing. It is nothing more than an accusation.
Later comes a trial, where the government is required to prove the accusation. The burden is not an easy one. The government must provide competent, relevant, and legally acquired evidence that convinces the jury of the person’s guilt beyond a reasonable doubt. The person has the right to challenge the veracity of the government’s witnesses and the validity of the evidence against him. In other words, he has the opportunity to deny what he’s being accused of.
Now, compare that type of system to one in which the government can punish a person without going through all that difficulty — that is, a system in which a person can be picked up and incarcerated (and tortured) without having to provide formal charges and a fair trial. That’s the kind of system they have in, say, places like China, North Korea, and Cuba — on both Castro’s side of the island and Obama’s side of the island.
In principle, due process operates the same way when the government wishes to seize a person’s property. It requires the government to provide notice and hearing as a prerequisite to seizing someone’s property.
Yet, while the feds obviously have provided notice to the Megaupload defendants of the criminal charges and will have to proceed to trial, that’s not the case with respect to their website. There, the feds did what King John did prior to Magna Carta. Indeed, they did what the Chinese communist authorities do to websites they don’t approve of. The feds simply shut down the website without any notice or hearing — that is, without due process of law.
How could the feds have proceeded if they had wanted to comply with the Fifth Amendment to the Constitution? They could have gone to a federal judge with an application for a restraining order and a temporary injunction, seeking the temporary closure of the website. To grant the injunctive relief, the judge would have had to find that “irreparable injury” would occur if the relief were not granted. That’s a difficult burden to meet.
If the judge granted a restraining order, it could be done without notice to the defendant but it can last no more than 10 days. Also, the judge would require the government to post a bond to cover possible economic damage caused to the defendant. Such a bond can be quite high.
At the same time, the judge would order a hearing on the application for temporary injunction. That’s where notice and hearing come into play. Prior to the hearing, the defendant must be served with the application for injunction and the order setting the date, time, and place of the hearing.
At the hearing, the defendant has ample opportunity to challenge the granting of the injunctive relief. If the injunction is granted, the judge again sets a bond to cover possible damages until the final trial in the case is held. Moreover, the defendant can appeal the granting of a temporary injunction prior to the regular trial, and the federal court of appeals will give priority to such an appeal.
All of this is to show how ingrained due process of law is in our constitutional and legal order.
Or at least used to be. As we all know, the feds no longer feel obliged to follow the principle in terrorism cases. And as we now see with the Megaupload case, they no longer feel obliged to follow the principle in seizures and closures of websites.
If there is an upside to all this, it’s that at least Americans can get a sense of what life was like for the average British citizen prior to Magna Carta and, indeed, what life is like in places like China, Cuba, and other totalitarian regimes.
Jacob Hornberger is founder and president of the Future of Freedom Foundation.
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