III.
PROCEDURAL DUE PROCESS.
Procedural
fairness, if not all that originally was meant by due process of law,
is at least what it most uncompromisingly requires. Procedural due process
is more elemental and less flexible than substantive due process. It
yields less to the times, varies less with conditions, and defers much
less to legislative judgment. Insofar as it is technical law, it must
be a specialized responsibility within the competence of the judiciary
on which they do not bend before political branches of the Government,
as they should on matters of policy which comprise substantive law.
If it
be conceded that in some way this alien could be confined, does it matter
what the procedure is? Only the untaught layman or the charlatan lawyer
can answer that procedures matter not. Procedural fairness and regularity
are of the indispensable essence of liberty. Severe substantive laws
can be endured if they are fairly and impartially applied. Indeed, if
put to the choice, one might well prefer to live under Soviet substantive
law applied in good faith by our common-law procedures than under our
substantive law enforced by Soviet procedural practices. Let it not
be overlooked that due process of law is not for the sole benefit of
an accused. It is the best insurance for the Government itself against
those [345 U.S. 206, 225]
blunders which leave lasting stains on a system of
justice but which are bound to occur on ex parte consideration. Cf.
Knauff v. Shaughnessy,
338 U.S. 537 , which was a near miss, saved by further administrative
and congressional hearings from perpetrating an injustice. See Knauff,
The Ellen Knauff Story (New York 1952).
Our
law may, and rightly does, place more restrictions on the alien than
on the citizen. But basic fairness in hearing procedures does not vary
with the status of the accused. If the procedures used to judge this
alien are fair and just, no good reason can be given why they should
not be extended to simplify the condemnation of citizens. If they would
be unfair to citizens, we cannot defend the fairness of them when applied
to the more helpless and handicapped alien. This is at the root of our
holdings that the resident alien must be given a fair hearing to test
an official claim that he is one of a deportable class. Wong Yang Sung
v. McGrath,
339 U.S. 33 .
The
most scrupulous observance of due process, including the right to know
a charge, to be confronted with the accuser, to cross-examine informers
and to produce evidence in one's behalf, is especially necessary where
the occasion of detention is fear of future misconduct, rather than
crimes committed. Both the old proceeding by which one may be bound
to keep the peace and the newer British "preventive detention" are safeguarded
with full rights to judicial hearings for the accused. On the contrary,
the Nazi regime in Germany installed a system of "protective custody"
by which the arrested could claim no judicial or other hearing process,
8 and as a result the concentration
[345 U.S. 206, 226]
camps were populated with victims of summary executive
detention for secret reasons. That is what renders Communist justice
such a travesty. There are other differences, to be sure, between authoritarian
procedure and common law, but differences in the process of administration
make all the difference between a reign of terror and one of law. Quite
unconsciously, I am sure, the Government's theory of custody for "safekeeping"
without disclosure to the victim of charges, evidence, informers or
reasons, even in an administrative proceeding, has unmistakable overtones
of the "protective custody" of the Nazis more than of any detaining
procedure known to the common law. Such a practice, once established
with the best of intentions, will drift into oppression of the disadvantaged
in this country as surely as it has elsewhere. That these apprehensive
surmises are not "such stuff as dreams are made on" appears from testimony
of a top immigration official concerning an applicant that "He has no
rights."
[Shaughnessy v. Mezel, 345 U.S. 206 (1953)]