Moment Debate | Is Due Process Always Good For the Jews?

Interviews by Amy E. Schwartz

INTERVIEW WITH JAMIE RASKIN  

Is due process always good for the Jews? | Yes

Is due process always good for the Jews?

Yes. Due process is always good for any legal system with human beings in it. A judicial system without due process would be great for a society where humans were infallible, but in the real world, humans, and their governments, make mistakes all the time. That’s why due process is important.

Is everyone entitled to due process, or are there limits?

Everyone. Some people might argue that guilty people don’t deserve due process. But the whole point is that often we don’t know who is guilty and who is innocent until due process has taken place. That’s what it’s for.

There are different elements of due process depending on what kind of proceeding it is—a criminal trial, a civil action, an immigration hearing—but the heart of it is that you have an opportunity to hear the the allegations against you, present your own case and have the whole thing decided by an impartial fact finder or tribunal.

Are there trade-offs between keeping Jews safe and protecting due process and democratic norms?

Jewish people have benefited from due process whenever there is a rush to judgment against us. The fanatical violence and lynchings of the Ku Klux Klan and other terrorist groups in our society against African Americans, Jews and other minorities for fabricated crimes is the classic circumvention of due process—citizens taking the law into their own hands. Any minority group needs due process to prevent the dangerous operation of mob psychology and vigilante justice. When Emile Zola wrote J’accuse in 1898 to defend the innocence of Alfred Dreyfus, a French army officer who’d been wrongly convicted of treason, it was all about the violation of due process.

“Any minority group needs due process to protect it from mob psychology and vigilante justice.”

Dreyfus was the victim of an outrageous frame-up by a system that was saturated with antisemitism. Due process is one way we try to prevent prejudice and bigotry from controlling the government and deciding particular cases. It’s always been a shield for Jewish people against antisemitism, just as the fight for due process in America has been such a central part of defending African Americans and others against racism.

Do Jews benefit or suffer when due process is afforded to antisemites?

When Jews are victims of hate crimes, the perpetrators too have due process, which understandably frustrates people sometimes. But without due process you don’t know you’re actually getting the right person. The courts have been emphasizing this in immigration cases. As District Judge James Boasberg writes, if there’s no due process for the guilty, there’s none for the innocent. And if there’s none for noncitizens, there’s none for citizens. If the government can scoop people off the street, put them on an airplane and send them to a torture gulag in El Salvador, then an innocent person has no opportunity even to get before a judge to explain they’ve got the wrong guy. That’s the story with Kilmar Abrego Garcia, where the government later admitted he was put on the plane by administrative error.

It’s all about a fair hearing. The whole point of the Enlightenment, which freed Jews, along with everybody else, from superstition and feudalism and autocracy, is that we shouldn’t be afraid of the truth because truth will lead the way to justice. And fair hearings and due process are what allow the truth to emerge in court. Even after World War II, the Allies insisted on trials with actual evidence brought against Nazi persecutors of Jews.

Was it good or bad for Jews, on balance, that Mahmoud Khalil was seized and jailed the way he was?

Khalil did not have a criminal record; the government targeted him for his ideas and expression and gave him no due process. They never brought criminal charges against him for anything but still sought to force him out of the country. The avoidance of due process and the destruction of the presumption of innocence slide all too easily into guilt by association and the assignment of collective guilt. People should be charged for their own personal conduct, not that of other people they may have associated with and certainly not for having ideas. That affects Jews, too: Repressive antisemitic governments often operate on the assumption that all Jews are guilty of mythical crimes or anything one Jewish person has done or said.

Is due process still a consensus core value, or is it becoming another politicized buzzword?

The words “due process” are the two most beautiful words in the English language. They separate our rights and freedoms from arbitrary state power. In the abstract, that’s a value everyone respects. In individual cases, you see people begin to peel off because they don’t like to see the people they disagree with enjoying the benefit of due process. It’s like free speech in that way—everyone supports it in the abstract, but nobody really feels good about free speech when they hear their enemies engaging in it.

INTERVIEW WITH WILLIAM CHOSLOVSKY

Is due process always good for the Jews? | No

Is due process always good for the Jews?

No. Rarely are things “always” anything. It’s not that due process isn’t a good concept—you’d have to be Attila the Hun to say otherwise—but that what some call due process can itself be misused. The satirical newspaper The Onion once ran a headline: “ACLU defends KKK’s right to burn down ACLU.” We laugh, but it speaks to a deeper point: Too much of a good thing can become a very bad thing.

There are cases where national security trumps due process—that’s not a controversial statement. Barack Obama didn’t capture Osama Bin Laden and bring him back for a trial, and nobody complained. Only we Jews, for the sake of some supposedly noble higher issue, would essentially sacrifice ourselves and our interests to Mahmoud Khalil, the current poster boy of due process. I don’t shed any tears for Khalil’s due process or lack of it. He’d get far less in the countries he seemingly supports. Jews are foolish to lose sleep over how much due process he’s getting when babies are being beheaded in Israel.

“Due process should get you to a just conclusion, but too much process is a separate corruption.”

Is everyone entitled to due process, or are there limits?

Everyone’s entitled to due process—the question is what that means. The courts are now grappling with whether noncitizens are entitled to any due process, and if so, how much? Most people seem to agree that a noncitizen gets less due process than a citizen. Ultimately the needle will stop at whatever the requisite due process is. Due process should get you to a just conclusion, but too much process is a separate corruption. You see this with immigration. Take political asylum. The principle was designed for the rare cases where if you returned to your home country, you’d be killed, for example, if you’d criticized the leader. But in the real world, you get lawyers at the border literally handing incoming migrants a list of phrases to say to be granted asylum. That’s not due process but an abuse of it.

Are there trade-offs between keeping Jews safe and protecting due process and democratic norms?

Sure, there’s a line somewhere. If the president of the United States said, “Tomorrow at noon we’re hanging all the Ivy League presidents in the town square to combat antisemitism on campus”—it could happen in some countries—I’d be the first to protest their lack of due process. But am I losing sleep that President Trump is withholding money from private universities that have endowments of $50 billion? No, I applaud it. I’m comfortable with where he’s drawing the line. My father used to say that when your house is on fire, and the firemen show up and put it out, you don’t yell at them for breaking your windows. You say two words: “Thank you.” As President Trump is actually fighting antisemitism on campuses, I don’t accept the premise that it’s too heavy-handed. There’s a greater good here, boys and girls.

Do Jews benefit or do they suffer when due process is afforded to antisemites?

I suppose we ultimately benefit, because it reinforces that we’re a noble, principled people. But the “benefit” may be put on our tombstones when the antisemites use their due process to kill us.

Was it good or bad for Jews, on balance, that Mahmoud Khalil was seized and jailed the way he was?

It’s good for the Jews, on balance. Of course, short term, it generates negative publicity and creates a sympathetic storyline for him. But when noncitizens come here as guests in a country that’s an ally of Israel and advocate for the destruction of the sole Jewish nation on earth, their values are antithetical to the United States and its policies. Whether they’ve broken laws, or advocated for others to break laws, or simply are seeking the destruction of America’s ally, deporting them is better for the Jews than repeating mantras like “First they came for the Jews, next they’ll come for someone else.” Probably the majority of American Jews, if polled, would say they feel terrible about the lack of due process afforded to Khalil—someone who advocates the destruction of the State of Israel. This is how self-destructive we are as a people. We’re our own worst enemy.

Is due process still a consensus core value, or is it becoming another politicized buzzword?

Both. It is a core concept. But because of that, people check their brains at the door, as if the words in themselves have some magic quality. If you claim lack of due process, people use it to say “I win!” when it really should invite a discussion of how much due process is owed. It’s like calling someone a racist—it ends the debate.

Go to any other country and try to enter illegally or overstay your visa. You will be afforded less due process than Mahmoud Khalil is getting here. So the notion that we’re doing something novel here, or worse than other countries, is just not true.