Posted tagged ‘Due process’

Restoring Due Process on Our Campuses

September 14, 2017

Restoring Due Process on Our Campuses, Jonathan Turley’s Blog, Jonathan Turley, September 14, 2017

(How about some due process rights re freedom of speech and religion on campus? — DM)

During the Obama administration, I was one of the academics who publicly criticized the “Dear Colleague” letter of Russlynn Ali, then assistant secretary for civil rights at the U.S. Department of Education under President Obama. Ali informed schools that they had to either strip their students and staff of due process protections or face the crippling loss of federal funding. Notably, Ali never submitted this massive policy change for “notice and comment” compliance under the Administrative Procedure Act.

The Obama administration demanded more cases and more expulsions from colleges. While saying that the curtailing of rights would make it easier for women to allege assaults, it was clearly making it easier to find guilt. For example, before the change, universities generally applied standards of proof requiring a “clear preponderance” or “clear and convincing evidence.” While not as demanding as “beyond a reasonable doubt,” the standard assured that a student would not be expelled for a sexual assault without a solid evidentiary record.

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Below is my column on the decision of Education Secretary Betsy DeVos to rescind the highly controversial “Dear Colleague letter” of the Obama Administration.  The letter, which made sweeping changes to educational policy, was never put through any notice and comment period under the Administrative Procedure Act (APA).   At the time, schools and faculty objected to the stripping of basic due process protections from our students.  However, politicians are now denouncing those who want to restore due process as soft on sexual abuse.

One of those denouncing DeVos is Texas lawyer and adjunct law professor Rob Ranco who said that he would be fine with DeVos being sexually assaulted.  Ranco has now resigned from his law firm, the Carson Law Firm, after apologizing for his public statement.  Ranco is reportedly an adjunct professor of paralegal studies at Austin Community College.

I have long criticized the erosion of due process rights on our campuses, particularly the unilateral action taken by the Obama Administration.

Here is the column:

The recent announcement by U.S. Education Secretary Betsy DeVos on handling sexual misconduct claims on college campuses led to a chorus of vitriolic and at times vicious attacks. Advocate Annie Clark denounced it as “a blatant attack on the civil rights of survivors.” The group Know Your IX declared that DeVos was against equality on campuses and was actively seeking to “help abusers and rapists.”

Texas lawyer Rob Ranco put it more bluntly. He proclaimed on social media that he would “be okay” if DeVos was sexually assaulted. From these comments, it would be easy to conclude that DeVos was bringing back coverture and chattel laws to our campuses. Instead, she was calling for comments on restoring minimal rules of due process for the investigation of sexual misconduct. Nevertheless, politicians and advocates have lined up to fight such “inequitable” and intolerable rules as protecting the right to counsel or allowing for a full opportunity to respond to evidence.

During the Obama administration, I was one of the academics who publicly criticized the “Dear Colleague” letter of Russlynn Ali, then assistant secretary for civil rights at the U.S. Department of Education under President Obama. Ali informed schools that they had to either strip their students and staff of due process protections or face the crippling loss of federal funding. Notably, Ali never submitted this massive policy change for “notice and comment” compliance under the Administrative Procedure Act.

The Obama administration demanded more cases and more expulsions from colleges. While saying that the curtailing of rights would make it easier for women to allege assaults, it was clearly making it easier to find guilt. For example, before the change, universities generally applied standards of proof requiring a “clear preponderance” or “clear and convincing evidence.” While not as demanding as “beyond a reasonable doubt,” the standard assured that a student would not be expelled for a sexual assault without a solid evidentiary record.

The Obama administration demanded the reduction of the standard to a mere “preponderance of the evidence,” or just slightly above a 50-50 determination. Since these disputes are often a “he said, she said” dispute, that means that a conviction can be based on the accuser’s account with even the slightest additional support.

The Obama administration also sought to deny the accuser the right to question the accuser. Ali insisted that this right “may be traumatic or intimidating (for the victim), thereby possibly escalating or perpetuating a hostile environment.” After all, many have argued that most allegations of abuse have been found credible, so why put the accuser through such a traumatic stage of a hearing? Notably, the Supreme Court stated in 2004 that “dispensing with confrontation because testimony is obviously reliable is akin to dispensing with a jury trial because the defendant is obviously guilty.”

Courts have repeatedly ruled against universities and colleges for denying students due process in proceedings structured to guarantee conviction. Dozens of such cases have been filed and many shock the conscience in their open disregard for any semblance of a fair hearing. In some of these cases, not only was the accused denied an opportunity to question the accuser but also key witnesses.

In one of the most recent decisions, a court ruled against the Miami University in Ohio after finding glaring due process violations in the case of an anonymous student known as “John Nokes.” Part of the decision addresses an increasingly common practice under the new rules of treating any drinking as negating any defense of consent under university intoxication rules. While both students drank before their sexual encounter, and Nokes insisted that the women was not inebriated, Ethics Director Susan Vaughn, who headed the hearing, told Nokes that there is no threshold amount for a finding of intoxication, and thus, a lack of consent.

The court also found that Nokes was never given fair notice that he was charged with assaulting an incapacitated student. Likewise, three key witnesses never showed up for the hearing but Vaughn insisted that she must “take this as fact. That is all true.” The university insisted that Nokes did not need the witnesses to tell his story. U.S. District Judge Michael Barrett simply noted that the university officials “miss the point of cross examination” and that their “claim that no amount of cross-examination could have changed the minds of the hearing panel members arguably undercuts the fairness of the hearing Plaintiff received.”

Nevertheless, advocates like Amy Siskind of The New Agenda have demanded to know why DeVos was “taking away Title IX protections for college women.” In reality, these were not Title IV protections, but demands in a letter without any Administrative Procedure Act compliance. That was a view echoed by over two dozen Harvard professors who denounced “procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.”

For civil libertarians, the effort to paint those favoring due process as favoring criminals is all too familiar. Rather than being accused of being “soft on crime,” critics now charge that DeVos and others are “soft on sexual abuse” by wanting basic due process rules. In reality, we can have both due process and full protection for our students. We need to maintain safe environments as well as responsive procedures to encourage victims to come forward. However, the Obama administration sought to achieve the appearance of success through a pretense of process. It associated fundamental rights with unsafe environments. Stripping rights will not bring real safety any more than rigging outcomes will bring real justice for our students.

Links Between Islamism and Executions

May 10, 2017

Links Between Islamism and Executions, Gatestone InstituteMajid Rafizadeh, May 10, 2017

(The notion that Islamist countries and Islamist NGOs, such as the Islamic State, do not adhere to western norms of due process must be shocking to anyone who has been living in a cave with no contact with the rest of the world for many years. But what about those in Europe and elsewhere who insist on unlimited immigration from Islamist countries to honor their gods named “Diversity” and “Multiculturalism”?   — DM)

People have, it seems, often been arrested or detained on the basis of a rumor; then convicted without trial, counsel or often even the chance to mount a defense.

As Amnesty International points out, “In many countries where people were sentenced to death or executed, the proceedings did not meet international fair trial standards. In some cases, this included the extraction of ‘confessions’ through torture or other ill-treatment”.

The laws under which these people are sentenced to death are often not only vague and open to interpretation. Charges that warrant the death penalty, for instance, include being “corrupt on earth”, “enemies of Allah on Earth”, or alleged “crimes against chastity”. What exactly does “corrupt on earth” or “enemies of Allah on Earth” mean?

Just how strict and brutal it is to enforce Islamic law, sharia, has now been revealed by Amnesty International.

Amnesty’s study, which details the number of reported executions around the world, clearly maps out the most at-risk populations. Lands ruled predominantly by sharia are apparently the most vulnerable to multitudes of executions without fair trials. At the top of the list, with the most executions, are those nations that enforce Islamic sharia law. Despite many human rights violations, these nations, apparently undeterred, continue to execute their citizens.

Sharia makes those in authority infallible and untouchable. Therefore, whatever the government or those in power deem to be “just” can be carried out without question or consequence. Under sharia law and the Islamic penal code, executions can be carried out in sickening forms. Those convicted may be beheaded, hanged, stoned, or shot to death.

As disturbing as the numbers in the report may be, they do not represent the reality that the citizens in these nations across the world face every day. There is, evidently, a connection between radical Islamist governments and extremist groups. The report does not include the gruesome executions that are carried out on a regular basis by extremist Islamist groups and non-state fundamentalists, such as members of the Islamic State (ISIS) and their affiliated groups.

These executions include, as we have seen, slitting throats, burning alive, drowning alive and crucifixion.

If these acts were included in the Amnesty International report, the total number of executions committed under the authority of Islamist law would be far higher. The Syrian Observatory for Human Rights, for example, pointed out that the Islamic State executed 33 people in the first week of April alone.

The report also did not include the number of Westerners being shot, executed and terrorized by Islamist groups. Many of these, such as ISIS, Asaib Ahl al-Haq (AAH), Kata’ib Hezbollah (KH), the Badr Organization, Or Kata’ib al-Imam Ali (the Imam Ali Battalions), are funded and trained by Islamist governments and oil-rich, unaccountable leaders.

Mass executions are evidently also being carried out by both extremist Islamist governments and Islamist groups. A culture of executions, often extra-judicial, as in Pakistan, seems to run rampant within the borders of these countries. Without any consequences for this horrifying disregard for human life, the numbers will only increase.

In Pakistan, Asia Bibi (pictured with two of her five children), a Christian, sits on death row for “blasphemy.” Asia’s “crime” was to use the same water glass as her Muslim co-workers. “You defiled our water,” the Muslim women told her.

Both Islamist governments and Islamist groups justify their brutal acts by referring to the “religious” Islamist legitimacy of their murders. Members of fundamentalist Islamist governments, to legitimize these types of atrocities, also exploit the right of “sovereignty”: they point out that they belong independent state with a fully operating and “legal” judiciary.

In the Amnesty International report, the Iran ranked number one, per capita, in executing people. It also accounted for 66% of all officially recorded executions in the region. Again, this amount only represents those executions that were officially registered.

It is also critical to point out that the statistics Amnesty International provides were given by the very governments that carried out the executions. This method means that those in power were the ones to calculate and decide what number should officially represent their country. The unofficial number is thought to be even higher. There is nothing to stop governments from simply keeping the true number to themselves.

Executions carried out under the strict governmental laws of sharia and Islamist judicial systems can have even more grotesque characteristics. The high number of executions included children, some convicted before the age of 18. Death sentences may frequently have lacked due process and what many would consider acceptable standards of proof. People have, it seems, often been arrested or detained on the basis of a rumor; then convicted without trial, counsel or often even the chance to mount a defense. As Amnesty International points out, “In many countries where people were sentenced to death or executed, the proceedings did not meet international fair trial standards. In some cases, this included the extraction of ‘confessions’ through torture or other ill-treatment”.

Prisoners’ vulnerabilities also had no bearing on their executions. Even those seriously ill were executed. Mass executions or stoning could be ordered and then carried out within a very short time, sometimes within days, giving those convicted no time to mount any form of appeal.

The laws under which these people are sentenced to death are often not only vague and open to interpretation. Charges that warrant the death penalty, for instance, include being “corrupt on earth”, “enemies of Allah on Earth”, or alleged “crimes against chastity”. What exactly does “corrupt on earth” or “enemies of Allah on Earth” mean? There are no guidelines to establish guilt or innocence. Those in power are therefore able to decide who has violated what laws on what can only be a capricious basis. Islamist sheikhs, imams, or judges can subjectively interpret charges any way they like. A charge of being “corrupt on earth” can apply to having fun at a party or writing poetry that government decides is critical of it. A charge of being “corrupt on earth” can apply to someone who is homosexual, someone who is claimed to have committed adultery, or who has simply declined to accepted an unwanted advance. It can mean anyone who has done anything that the ruling leaders dislike.

These Islamist laws, moreover, also serve as a perfect tool for exploitation. A woman finding herself accused of breaking a law may be assured that if she agrees to sleep with a judge, for instance, he will interpret the law in a lenient way and protect her from the death penalty. After a woman submits to this, she can be executed nevertheless. Sometimes girls are forced into sighah — the Shiite Islamist law of temporary marriage — with a cleric, or a governmental official; after “consummating” it, they can also be put to death.

What does a charge such as “crimes against chastity” mean under sharia? This accusation can apply to a girl who has been raped. Instead of the law providing protection for the victim and consequences for the rapist, the victim is accused of the crime of “adultery”, convicted without a fair trial, and swiftly executed.

When Islamist laws enter a land, it seems the number of stonings, beheadings, and executions goes up.

Leaders of these nations can use this flexibility to terrorize and control entire societies, expand their power, export their ideology, and ensure that there is no opportunity to resist. More disturbing is that those numbers are just a portion of the truth.