- - Wednesday, November 10, 2021

There can be no doubt that the January 6th demonstration on the east side of the US Capitol got out of hand, no matter how well-intentioned the vast majority of participants may have been.  I’ll leave it to witnesses, investigators and historians to determine exactly what prompted participants to push their way into the Capitol, resulting in events that have been excessively hashed out in the media.  The actions of many of the troublemakers were indeed threatening and might justify the word “riot,” but to repeatedly call the events an “insurrection” is a less than credible stretch. The sole victim intentionally killed that day was Ashley Babbitt, a US veteran whose misfortune was to be in the wrong place at the wrong time. A Capitol Hill policeman shot her, the only person alleged to have discharged a firearm in the vicinity of the Capitol.

Clearly, the Capitol was inadequately defended by the civilian leadership and uniformed law enforcement. But once the tragic events had occurred, it was not surprising that many arrests were made.  To this day, almost 700 people have been arrested and charged, the vast majority of whom have been released and had their cases disposed of in varying ways.

But in his television show this past Monday, Fox News’s Tucker Carlson highlighted a trip by Congresswoman Marjorie Taylor Greene to the Washington, DC prison where she spoke with some January 6th detainees who, to this day, 10 months after the fact, are still in jail.

Why?  As a former US Congressman and criminal prosecutor with three separate agencies, I am hardly one to sympathize with those who deliberately break the law. But I was proud to have carried out my prosecutorial duties in the name of justice and fair treatment for those who found themselves under legal scrutiny. I took seriously the rights bestowed on all citizens by our Constitution and our Bill of Rights, including the rights of a defendant to be told of the charges against them (Article V); the right to avoid excessive bail (Article VIII);  the right to a speedy trial with the assistance of Counsel (Article VI); and the right not to be deprived of liberty in unreasonable conditions without due process of law (Article V).

I wasn’t at the Capitol on January 6th.  I don’t know and have never met Ms. Greene or any of the people still held in the DC prison.  I know nothing of the individual cases or the evidence against any of them.  I am simply a citizen who has watched events unfold these past 10 months. I observed a fence erected around the Capitol, removed after six months, and then put back up for the July 4th festivities. I’ve seen the House of Representatives appoint an Investigation Committee accepting some but not all Members proposed by Minority Leadership. None of this is of immediate concern to me.



But I am concerned, nay, I’m shocked by the ongoing stories of prospective defendants who have been arrested and deprived of their livelihoods; confined in solitary confinement with little or no reasonable access to the outside world, their families or adequate legal counsel; and denied formal charges levied against them without bail and in contravention to their right to a speedy trial.  This past summer, I spoke with an employee at the federally appointed Public Defender’s Office who told me that they were not even representing any of these folks.  

Where is the ACLU? Where are the “civil rights” defenders who should be screaming from the rooftops about this flagrant denial of due process? We made exceptions for due process at Guantanamo for terrorists who took up arms against us in Iraq and Afghanistan.  But this is America!  Most of these people are at worst guilty of trespass or destruction of government property.  But for crying out loud, charge them, arraign them, and bring them to trial with counsel of their choice.  Stop simply confining them without respect for their rights as American citizens. Otherwise, they are no better off than if they were victims of a “star chamber” process that Kafka (“The Trial”) and Koestler (“Darkness at Noon”) warned us about. This atrocity must stop, and it must stop soon. 

• A distinguished former Republican Member of Congress from Louisiana, Robert L. Livingston is a Founding Partner of The Livingston Group.

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