The Democrats’ War on Due Process

By Josh Gelernter

Saturday, December 12, 2015

The Republican “War on Women” was a big deal for Democrats in the last presidential election. Republicans ought to be talking about the Democrats’ “War on Due Process.”

Democrats are up in arms this week about the GOP’s refusal to acquiesce to its demand that Americans on the no-fly list be denied the right to buy guns. “GOP blocks bill to stop terrorists from buying guns,” read an MSNBC headline. “GOP Candidates Voted to Preserve Terrorists’ Gun Rights,” read a headline in Rolling Stone. “Senate Republicans rejected a bill that aims to stop suspected terrorists from legally buying guns,” explained MSNBC. “A loophole under U.S. law permits people identified as terrorists by the FBI to legally purchase guns,” warned Rolling Stone.

What they, dozens of other leftist publications, and 44 Democratic senators plus Republican Mark Kirk fail to mention is that you don’t actually have to be a terrorist to be “suspected” of being a terrorist. You don’t have to be a terrorist to have been “identified” as one by the FBI. You don’t have to be a terrorist to be arrested as a terrorist or indicted as a terrorist — any more than you have to be guilty of murder to be charged and tried for murder.

Some people who are accused of murder are innocent. That’s why we have trials, instead of sending every “person of interest” straight to the gallows. Likewise, some people on the no-fly list are not terrorists. But unlike people accused of murder, most on the no-fly list have never been charged, judged by their peers, or given the chance to prove they’re not terrorists. For instance, the one-year-old daughter of a woman named Ingrid Sanden, who was trying to fly from Arizona to Washington for Thanksgiving. Or the eleven-month-old son of a woman named Sarah Zaposky. Or any of the dozens of other infants who have been pulled off flights by the TSA. Or Daniel Brown, a Marine veteran of the Iraq war, or Lieutenant Colonel Robert Johnson of the U.S. Army. Or Congressmen John Lewis and Don Young, or Senator Ted Kennedy. These are some of the “terrorists” the Left (and impartial stalwarts like MSNBC) want banned from owning guns in bad neighborhoods. These are some of the “terrorists” who were high-profile enough to be exonerated.

Of course, for many on the Left, this is simply a matter of not wanting anyone — terrorist or otherwise — to own a gun. Nonetheless, it is genuinely surprising to see so many on the Left so eagerly taking sides against the right to be presumed innocent until proven guilty. The Bill of Rights guarantees that no person shall be deprived of liberty without due process of law. But according to Hillary Clinton, it’s “truly unbelievable that, after what we’ve seen in Paris and other places, Republicans will not bring up a bill that will prohibit anyone on the no-fly list from buying a gun in America.”

Mrs. Clinton does not stop there. She believes that people accused of committing sexual assault should be presumed guilty — specifically, that their accusers have “the right to be believed.” Needless to say, you can’t presume an accuser to be telling the truth without simultaneously presuming the person he’s accusing to be guilty. Sexual assault — rape — is one of the two quintessentially heinous crimes; the other is murder. Great pains are taken to avoid convicting innocent men of murder; obviously, the more heinous a crime, the more important it is to be sure the right man, and only the right man, is punished. Heinous crimes have serious consequences.

People’s lives have been ruined by wrongful convictions for murder. People have been executed because of wrongful convictions for murder. Lives have been ruined by false and mistaken accusations of rape. Last month, a man convicted of rape was exonerated after serving 16 years in prison — 16 years of a 55-year sentence. Last summer, a man convicted of rape was exonerated after serving two years of a 20-year sentence. In 2012, a one-time high-school football star was exonerated after having served six years for rape; now he’s free, but his college scholarships are gone — he’ll never play football for a Division 1 school, or in the NFL. Last summer, a 17-year-old named Jay Cheshire committed suicide after having been falsely accused of rape.

According to an FBI Uniform Crime Report from the late Nineties, the “percentage of complaints determined through investigation to be false is higher for forcible rape than for any other Index crime. Eight percent of forcible rape complaints in 1996 were ‘unfounded,’ while the average for all Index crimes was 2 percent.”

Maybe the FBI is wrong. Maybe its number is off by an order of magnitude, and the actual rate of false rape accusation is not 8 percent, but eight-tenths of one percent. Should the guiltless victims of those 0.8 percent false accusations be sent to prison because their accusers have the right to be believed?

The English jurist William Blackstone is most famous for having said that it is “better that ten guilty persons escape than that one innocent suffer.” Maimonides is famous for having said that “it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent man to death.” This used to be the universally acknowledged bedrock of civil rights. Even the U.N., in its Universal Declaration of Human Rights, concedes that “everyone charged with a penal offense has the right to be presumed innocent until proved guilty.”

But now, we live in a country where the IRS can seize your life savings without ever charging you with a crime. Without ever charging you with a crime, or obtaining a warrant, the FBI can seize your browser history. Leading Democrats — including the party’s likely presidential nominee — are actively campaigning against due process. Americans hate — hate — the idea of being punished for something of which they’re not guilty. That’s why it’s so hard to reform mental-health care in this country: Every American is secretly afraid he’ll be committed to an insane asylum by some crooked politico (the way dissidents were in the Soviet Union, and are in Communist China).

If the GOP has a lick of common sense, the Democrats’ War on Due Process will be mentioned by every Republican candidate in every speech from now till election day.