Due Process; A Detached Judge; And Enemy Combatants

In the landmark administrative law decision of Goldberg v. Kelly, Justice Brennan stated that an "impartial decision maker is essential" to procedural due process. As a corollary, in the more recent decision of Hamdi v. Rumsfeld, Justice O'Connor stated that "due process requires a neutral and a detached judge in the first instance." Thus, the due process clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution require that the essential element of neutrality remain an integral part of any administrative hearing. There can be no departure from this fundamental guarantee of constitutional due process for the administrative hearings accorded to enemy combatants. * Chief Administrative Law Judge and the Director of the North Carolina Office of Administrative Hearings. 2 Journal of the National Association of Administrative Law Judiciary 28-1 Due Process of Law encompasses a broad range of concepts and definitions, but within the framework of this article, due process will refer to procedural due process,' not substantive due process. The genesis of due process in American jurisprudence originated in the United States Constitution followed by a long history of Supreme Court interpretations.3 Additionally, conforming references are found in the various state constitutions with corresponding state court decisions.4 More specifically, the words, "due process," were written into the Bill of Rights as found in the Fifth Amendment to the United States Constitution--"[n]o person shall be.. .deprived of life, liberty, or 1. See BLACK'S LAW DICTIONARY 1083 (5th ed. 1979). Procedural due process is defined as: Those safeguards to one's liberty and property mandated by the 14th Amend., U.S. Const., such as the right to counsel appointed for one who is indigent, the right to a copy of a transcript, the right of confrontation; all of which are specifically provided for in the 6th Amendment and made applicable to the states' procedure by the 14th Amendment. Central meaning of procedural due process is that parties whose rights are to be affected are entitled to be heard and, in order that they may enjoy that right, they must be notified. Parham v. Cortese, 407 U.S. 67, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556. Reasonable notice and opportunity to be heard and present any claim or defense are embodied in the term "procedural due process." In re Nelson, 78 N.M. 739, 437 P.2d 1008. 2. Id. at 1281. Substantive due process is defined as: "[t]he constitutional guarantee that no person shall be arbitrarily deprived of his life, liberty or property; the essence of substantive due process is protection from arbitrary and unreasonable action. Babineaux v. Judiciary Commission, La., 341 So.2d 396, 400." 3. See generally J.A.C. Grant, The Natural Law Background of Due Process, 31 COLUM. L. REv. 56 (1931). 4. See infra text p. 4 noting that all of the pre-1787 State Constitutions referred to the Law of the Land and not due process, but the terms are commonly interchangeable. Sidney A. Shapiro and Richard E. Levy noted that "[a]fter Sir Edward Coke declared 'law of the land' to be synonymous with 'due process of law,' prominent American commentators, including Kent, Storey, and Cooley, continued this association, thereby suggesting to early American lawyers that the concept of 'due process of law' was derived from the Magna Carta." See Sidney A. Shapiro & Richard E. Levy, Government Benefits and the Rule of Law: Toward a Standards-Based Theory of Due Process, 57 ADMIN. L. REv. 112, n. 21 (2005) (citing Edward S. Corwin, Due Process of Law before the Civil War, 24 HARV. L. REv. 366, 368 (1911)). Spring 2008 Due Process; A Detached Judge 3 property without due process of law[.]"5 Some of the original states insisted upon the inclusion of the Bill of Rights in the Constitution, including the more specific reference to the due process clause in the Fifth Amendment, before those states would ratify the United States Constitution.6 The right to due process provided by the Fifth Amendment applies to Federal Government action. The Civil War amendments made the right to due process applicable to the states through the Fourteenth Amendment which states "nor shall any state deprive any person of life, liberty, or property, without due process of law[.]r7 Due process procedures are defined by ages of judicial development, dating back to the English Magna Carta in the 13th