There has been much coverage of the arrest and immediate deportation of alleged “criminals” and “illegals” by the Trump administration. These actions are apparently part of the Republican plan to “make America white,” although in recent days Trump has pulled back the aggression as to certain workers. Why? Because he has realized that his shoot-first-think-later approach to domination may be offending some of his supporters whose businesses depend on immigrant labor. But from day-to-day Trump’s erratic approach to governance, largely made up on the fly, can change radically.

This primer is not, however, about our national immigration policy. It is instead about elementary constitutional and legal processes that are an essential part of our legal system. These principles apply to immigrants as well as citizens, and one day they might apply to you, as when Trump’s masked and armed men who refuse of identify themselves pull your car over or visit you at home or work.

First, the Constitution itself.

Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fifth Amendment:

….  nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. 

To keep this manageable, we’re going to focus on the text that I have bolded. But first we must include the function of magistrates. Virginia law is typical:

A principal function of a magistrate is to provide an independent, unbiased review of complaints of criminal conduct brought by law enforcement …. Magistrate duties include issuing various types of processes such as arrest warrants, summonses, search warrants, emergency protective orders, emergency custody orders, and certain civil warrants. Magistrates also conduct bail hearings in instances in which an individual is arrested to determine under what conditions the arrestee should be released from custody prior to trial.

Finally, there is the Supreme Court decision in Miranda v. Arizona (1966) that applied the Fifth and Sixth Amendments to the arrest phase of a criminal case. The Court held that any person in custody must, before being interrogated, be informed of the right to remain silent and the right to assistance of an attorney.

One other thing –no evidence has been produced that the armed masked men working for ICE and conducting what amount to kidnappings for the government have any meaningful training in the legal principles that govern what they are doing.

Now, the facts: let’s say you’re in a park with your two young children. An unmarked van pulls up and several masked men jump out. They are heavily armed. They tell you that you are under arrest for violating you immigration status, and that you must come with them. Or maybe they don’t tell you anything except to get the van, NOW!

You protest that you are an American citizen. You demand they explain the basis for the charges and that they identify themselves. They refuse. You are then handcuffed and forced into the van. You protest that your children are with you and have no one to care for them because your spouse is away on business. The men ignore you.

The next thing you know, you are on an airplane headed to an unknown destination but that soon becomes clear is not in the United States.

In my hypothetical case, you are in fact an American citizen and the men are wrong about who you are. They have been misinformed by someone in the U.S. Department of Homeland Security.

Your rights have been violated in multiple ways. No warrant for your arrest has been issued, you are not given your Miranda warnings, and you are not taken before a magistrate who determines whether your arrest is proper. You are given no opportunity to consult counsel who can present your defense that you are a U.S. citizen and not subject to deportation. Your right to a trial has been ignored. And you have been prevented from caring for your children who have been left in the hands of, hopefully, kind strangers.

This scenario has happened many times under the Trump administration’s “deport the criminal immigrants” policy. It is not complicated. The Constitution’s due process requirements refer to “persons,” not to “citizens.” It means what it says.

The reasons for the various “rules” and “principles” are straightforward and obvious when you think about it. The legal process, while slow, is designed to prevent mistakes. It is designed to assure that every person accused of a crime has a fair chance to understand the charges, to seek professional help, and to avoid mistakes that could impose criminal penalties on the wrong person. While Trump has complained by providing due process may require thousands of trials, that does not negate the rights of individuals to the protections of the Constitution.

The Trump administration’s unleashing of masked men who refuse to identify themselves and whose approach creates strong possibilities for mistaken arrests, and which imposes extreme penalties (removal to other states or, worse, deportation to foreign countries) with no opportunity to consult counsel, or to understand the charges, is certain to deny constitutional protections to the accused.

The idea that persons in the United States may be removed from the street or their home or a job, without notice, by unidentified armed men, transferred to other states and then removed from the country to a foreign prison without any opportunity to consult counsel, without any opportunity to protect family members including small children dependent on them, is unconstitutional, unlawful, and un-American. It is almost certainly a human rights violation and is unacceptable in the U.S. system of law.

And under the Trump administration it is happening every day.