Speed Kills

A story recently by Rebecca Beitsch in The Hill quotes Attorney General Pam Bondi saying something about the García deportation case that has me particularly furious. I want to take a few moments here to detail the reasons for my ire.

«Attorney General Pam Bondi said the Trump administration failed to take “one extra step of paperwork” before it mistakenly deported a Maryland man…»

—article 2025-04-16 by Rebecca Beitsch in The Hill

The Very Critical Nature of Due Process

First, “Due Process” is not a paperwork step. It is process—specific actions”—that is due by the government to the people. That process is meaningful and substantive and necessary to ensure the freedom of everyone, including you and me.

It is a foundational principle of US government. Freedom cannot exist without it. It is mentioned in the Bill of Rights, in the Fifth Amendment, and it is guaranteed to “people,” a broader set than just “citizens.” Per US case law [e.g., Zadvydas v. Davis, 533 U.S. 678 (2001)] non-citizens, even including those unlawfully present, are entitled to due process.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; 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.”

—The 5th Amendment to the US Constitution

To say that no process is due would be to say that it's fine for this to happen to anyone. You. Me. Anyone. Because it blurs the distinction between “alleged” and “convicted.” They say they are only doing this to criminals, but, in the US, the way we decide who a criminal is—at least up to now—by due process.

What's good for the goose…

But would the President know this? I'm going to go out on a pretty sturdy limb here and guess “yes.” In spite of being actually convicted on 34 counts (which he disputes), in general, he relies heavily on the difference between accusation and conviction to claim a clean reputation in the face of a very large number of uncharged crimes.

What protects him is not “one extra step of paperwork” but due process, the fact that, under the Constitution, we have a process for determing whether someone accused of being a criminal is in fact an actual.

That important bit of process due to him—and to García—does not take place in the President's mind. It is not just a routine bit of unilateral business to be done by ICE. It happens in court.

Highest possible stakes

If we think we can skip that step, the part about going to court for a fair hearing with proper evidence and a chance to rebut charges, then anyone can be that mistake.

Again from the article in The Hill:

«“He is not coming back to our country. President Bukele said he was not sending him back. That’s the end of the story,” she told reporters at a press conference Wednesday, referring to the Salvadorian leader. “If he wanted to send him back, we would give him a plane ride back. There was no situation ever where he was going to stay in this country. None, none.”»

—article 2025-04-16 by Rebecca Beitsch in The Hill

And the notion we would just summarily re-deport him, again without due process, is saying that the US president does not care about this very critical step that has historically set the United States apart from barbarous countries.

Also, the President's oath of office is not itself a mere matter of paperwork (or lip service). It is something all presidents swear to, and it includes language about protecting the Constitution from enemies. He is not doing that. This is not a small administrative matter.

Legal angles?

Personally, I'd go so far as to argue that once he is not defending the Constitution, none of his acts are official acts, and every single one is subject to question before our court system. That is how I would re-approach SCOTUS and ask for clarification because if they really meant that official acts include the overthrowing or ignoring or otherwise trashing of the Constitution someone had sworn to protect, then they themselves need to be impeached on that basis, because saying that was not upholding their oath office to the Constitution and (in my opinion) makes that ruling invalid.

Also, in criminal law, when dealing with evidence, there is the notion of fruit of the poisonous tree when dealing with evidence improperly obtained. What would help a lot right now is the same for the Executive and SCOTUS itself. Once it has been demonstrated that there is a corrupt actor, not defending the Constitution, all further actions coming from that person really should be seen as invalid. To do otherwise is to say that allowing an enemy actor to have effect is more important than We The People. I see no reason at all that this should be so.

I know that people differ politically on a wide variety of issues, but I hope that we can at least admit that logical consistency and sanity are not partisan matters. Assuming that's so, I just don't see how we can have any kind of functional democracy, at least not one based on the Constitution, if major aspects of it are being eroded in real time. Somehow we have to find a means to stop this cancer in its tracks.

On speed

And while we're on the topic of things going too fast, I want to touch on one other matter as we close: speed itself. Speed is a theme that runs through all of this.

The rate at which things happen is a tangible quality of things that is easily overlooked when describing what's going on, but it really matters quite a lot if things are happening faster than people can keep up with or react to.

Project 2025

There is a shock and awe campaign ongoing as part of the Project 2025 rollout. Wikipedia says this about the deployment strategy it's using:

Shock and awe (technically known as rapid dominance) is a military strategy based on the use of overwhelming power and spectacular displays of force to paralyze the enemy's perception of the battlefield and destroy their will to fight.

—Wikipedia “shock and awe” entry

Military, though? Yes, I think so. It's a good metaphor because it highlights the strategic and tactical nature of the actions taken and that the goal is a political conquest that changes government by means other than democratic votes. Not all military action uses guns. In Sun Tzu's The Art of War, the use of physical violence is seen almost as a last resort.

“The supreme art of war is to subdue the enemy without fighting.”

—Sun Tzu in The Art of War

Project 2025 is a very ambitious plan with a very detailed playbook for a quick (six month) rollout.

There is a lot in Project 2025 that people might object to. But part of the plan is to do a lot very quickly, each outrageous act a distraction for each other in a kind of fog of war kicked up by a Gish gallop of indignities and violations.

The site www.project2025.observer helps enumerate its aspects and track the progress of each.

DOGE

Speed is an underlying premise of the recent Department of Government Efficiency (DOGE). Efficiency usually implies either lower cost or higher speed. But efficiency is an elusive term and invites the question, “efficiency of what?” My recent essay Government is not a Business discusses, among other things, how inefficiency is important to the correct function of government, making the point that speeding things up doesn't automatically make things better.

People also assume that efficiency means monetary efficiency or time efficiency, but there are other uses of the term that seem to fit better. I think of the efficiency that DOGE is seeking as more like what I've come to call a “permission efficiency”. This relates to the earlier discussion of the safeguards of democracy. They are essentially trying to create a thugocracy, a place where bullies and thugs rule. Rights are protections against state action, but these autocratic oligarch wannabes don't want to have to ask permission for anything. They find permission-asking unhelpful to their goal of pushing people around and hence “inefficient.” That's more like what DOGE is trying to streamline—any possibility of rights claimed by citizens.

And they want to do it fast. Faster than people can react. Because if they took the time to debate it, the debate would not go in their favor.

Forced Pregnancy

Pregnancy, which many of us think should be a completely private matter, has become a public issue. It is a way for certain men to assert an ugly dominance over women through forced pregnancy. From the moment of a pregnancy's conception, a clock starts ticking counting down to when abortion is no longer politically allowed. Where it is allowed, there has been a focus on tactics to introduce procedural obstacles many, of which have no other purpose than to slow down a woman's ability to respond in time to exercise her rights.

Nature imposes some time limits of its own, but then men impose additional ones. None of it serves personal choice, personal health, or personal justice. In a nation whose Constitution promises to leave religion as a private matter, this debate is everything about the assertion of oppressive government control of very private matters, and wending its way in and out of everything that goes on is a race against time.

Weaponizing speed itself

That's really the problem with all of this. By acting swiftly, they can bypass anyone's chance to fight back. Even acts that have protections, if those protections cannot be practically put into play in the time alloted, are effectively neutralized.

In effect, speed itself is the weapon that is and will continue to kill people, perhaps even you and me.

I'll close with a quote from a case years ago, in the aftermath of World War II, Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953). It's striking how relevant this passage seems, even 70+ years later. The circumstances are not far off. What's changed are some of the tools of such aspiring tyranny, speed itself now central among the repertoire of weapons they wield because modern technology accommodates greater speeds. We must stop this. Let's just hope we can do it in time.

«No society is free where government makes one person's liberty depend upon the arbitrary will of another. Dictatorships have done this since time immemorial. They do now. Russian laws of 1934 authorized the People's Commissariat to imprison, banish, and exile Russian citizens as well as "foreign subjects who are socially dangerous." * Hitler's secret police were given like powers. German courts were forbidden to make any inquiry whatever as to the information on which the police acted. Our Bill of Rights was written to prevent such oppressive practices. Under it, this Nation has fostered and protected individual freedom. The Founders abhorred arbitrary one-an imprisonments. Their belief was -- our constitutional principles are -- that no person of any faith, rich or poor, high or low, native or foreigner, white or colored, can have his life, liberty or property taken "without due process of law." This means to me that neither the federal police nor federal prosecutors nor any other governmental official, whatever his title, can put or keep people in prison without accountability to courts of justice. It means that individual liberty is too highly prized in this country to allow executive officials to imprison and hold people on the basis of information kept secret from courts. It means that Mezei should not be deprived of his liberty indefinitely except as the result of a fair open court hearing in which evidence is appraised by the court, not by the prosecutor.»

—Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953)

Author's Notes:

If you got value from this post, please “Share” it.

This post originated as a rant by me on Mastodon. Substantive content has been aded, re-focusing on the issue of speed.

The graphic was produced using abacus.ai using Claude Sonnet 3.7 and FLUX 1.1 [pro] Ultra, then post-processing in Gimp.

Process Due

Seth Abramson wrote in a tweet, “Our descendants won't distinguish between pro- and anti-Trump, they'll just say, ‘What were those idiots thinking?’ “

I feel embarrassed knowing how easily future historians will mark Trump as a criminal

He's making generations of Americans look like morons in the eyes of history

Our descendants won't distinguish between pro- and anti-Trump, they'll just say, "What were those idiots thinking?"

— Seth Abramson (@SethAbramson) November 3, 2019

Folks outside the US no doubt ask it now.

It's a fair question, but maybe the wrong one.

Constitutional government needs clear process as safeguard against idiocy. We just can't rely on intelligence to be there, nor idiocy not to be, in every moment of every day. That's too much to ask.

I don't mean to let us off the hook. We must introspect on how we got here. To assure intelligence is reliably present and available, it must be encoded in our processes, not left as an exercise to the individuals trying to interpret those processes.

Size is Relative

Toward that end, we too seldom question the oft-repeated myth that “minimum government is best government,” fed us by those who want government kept malleable.

Too big government isn't good.
But too small isn't either.

I have lately tended toward the belief that government must grow in proportion to propensity for abuse, not even just in reaction to abuse, but even proactively, anticipating the likely and covering reasonably anticipated cases that follow from trends.

Libertarians grump whenever government grows, but public response needs to be “If you exploited the common good less, we wouldn't have to complicate this so.”

The asymmetry is that we're stuck in an arms race where conservatives want to escalate their hold over society, and they use Jedi mind tricks to make progressives feel bad about responding.

If they want government to stay small, they should “play nice.”

Our Constitution needs repair, more process & process detail, if we're not to leave procedural action to the chance of idiocy or partisanship.

We need such additional detail to assure a nervous public in times of stress that processes being applied were not developed in the moment to serve Machiavellian ends, but are our normal way of attending to all problems, no matter who creates them and no matter who administers them.

Who Could Have Known?

“What were we thinking?” you ask, you who look on from afar, from across the ocean or from the far future.

Well, “what are you thinking?” Your are us on other days. Don't assume your greater intelligence will carry the day. Ask instead, “does process protect me?” Because unless your answer is a very certain yes, you should be as panicked as we are now, and you should be readying for your time to face this same event.

We look back at you and feebly shrug, “Who could have known?” It's a lame excuse, but somewhat true. This problem is new to us. Some saw it in advance, but many didn't. And so, collectively, because we act as a collective entity, we did not see this. And now, mired in it, we lack clear and strong process to get us quickly or reliably out.

But for you looking on, you all see it. Do not make the error of thinking this a uniquely US problem, of thinking yourselves immune. Don't expect “Who could have known?” to defend your honor when your time comes. Act now to buttress your respective constitutions for what's surely to come for you as well.

Trump-wannabes the world over are taking notes.

The Death of Shame

What gives Trump his power isn't just utter GOP corruption and Dem lack of spine.

It's that there are "norms of behavior" we have asked but not required by codifying them in Constitution or law.

We must fix that. The Constitution needs to grow.

The question isn't whether additional rules are needed, only whether we'll have the spine to insist on such necessary change, lest we endure a recurrence for having failed to.

We've relied on social mechanisms like decorum and shame in lieu of rules. But Trump is shameless. His political power comes of seeing decorum isn't a compulsion for him to conform. He sees an ignorable nicety, and his goal is never to be nice. He sees nicety as weakness.

If we get out of this, still an open question, we must add more rules.

Conservatives will cry "bloat". But too bad. Blame yourselves, GOP. You've earned every bit of clarifying legal text that comes in response.

Some Examples

We need process that does not reduce us to arguing whether major felonies are reason for impeachment. We might not enumerate a full list of reasons to impeach, but we should enumerate some, just so we don't waste months debating at least those.

The Constitution intends discretion about allowing more than just felonies, but that discretion should extend in the other direction, allowing discretion about ignoring felonies. It should say flat out that if there are felonies afoot, or there is even just strong reason to suspect it, impeachment must begin. It should say that if impeachment succeeds in the House, the Senate must engage it in the Senate under rules that are fair to both parties to offer substantive discussion without it being procedurally buried.

Even the question of burden of proof needs to be better spelled out. If a President is seen to act in a way that is adverse to US interests, but we can't prove intent, that might be sufficient to avoid a criminal conviction, but do we want such a person in office? We have to either have the clear right to try a sitting President or an easy path to removing the President so they can stand trial. We should not be forced to endure a criminal President simply for lack of some technical detail. Presidency isn't a right, it is a privilege and a responsibility.

Benefit of any doubt in the reliability and good will of our President needs to be given to We The People, not a dubious President.

Going Forward

I speak as if we might get out of this. That's overly optimistic. We won't.

Maybe—hopefully—Trump will be impeached. But even so, he's shown where Democracy is weak, opening a Pandora's box unlikely to be closed.

Such attacks will recur, and not just in the US. We won't get out of that. We can only prepare. Please let's do that.

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Author's Note: If you got value from this post, please “Share” it.

This article began as a tweet thread of my own in response to Abramson's tweet quoted above. I've done some editing, rearranging, and expanding here.