More than 800 Americans, among tens of thousands who protested irregularities in the 2020 election cycle, stormed the Capitol on January 6, 2021 – and were arrested. That event is now 15 months behind us. Why, in our land of “liberty and justice,” are many still detained?

The point of this piece is not to relitigate the protest, election, charges, or anything to do with politics. It is to focus on a simple idea – due process and rule of law.

As a former US Court of Appeals clerk, New York, and DC litigator, and – rather ironically, former Assistant Secretary of State to Colin Powell for global issues, including law enforcement – the conditions and state of these cases, many unresolved, is a concern.

Reports flow in – through family, friends, official and credible channels – that these detainees are isolated, living in poor conditions, cannot meet with reporters, are increasingly invisible, just forgotten people. That is not how America works.

The Department of Justice has an incomplete, frighteningly suggestive reporting system, that indicates one case was dismissed, some resolved by plea, 70 adjudicated – but many in perdition, facing seemingly eternal punishment and damnation, no resolution on the horizon. Whether hundreds or “just 40” as one article argues, one is too many. See, e.g., Capitol Breach Cases; One Year Since the Jan. 6 Attack on the Capitol; At least 800 people have been charged in the Capitol insurrection so far. This searchable table shows them all.; No, there are not ‘hundreds’ of Capitol riot defendants in DC jail.

How can this be, in a nation with a Bill of Rights, which promises “no person shall be … deprived of life, liberty, or property, without due process of law” (5^th Amendment)? The Bill of Rights notwithstanding, many charged individuals remain untried, still mysteriously detained?

Consider the 6^th Amendment. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial …” Has that occurred? “.. by an impartial jury of the State and district wherein the crime shall have been committed …” Has that occurred?

Continuing: “…confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor …” Occurred? “…Assistance of Counsel …” Occurring?

The answer? Who knows? The record is strangely incomplete, access restricted, word barely getting out, and what we know is not reassuring. See, e.g., ‘We are rotting in jail’: Capitol rioter demands Trump give 6 January speech to back him and co-prisoners; D.C. officials stew after Jan. 6 prisoners’ complaints prompt federal pull-out from jail.

What we know, based on official reports of DC jails where many are held, is just conditions are incorrigible, in some cases objectively inhumane and indefensible. See, e.g., January 6 suspects’ D.C. jail complaints are hypocrital, but they’re not wrong;

Specifically, many seem to be isolated, facing poor health, living conditions, treated as if undeserving of the kind of constitutional standards they deserve. Members of Congress, notably Republicans, have decried conditions are intolerable. One noted: “What’s happening to these people being held in custody is wrong, it’s unconstitutional … a violation of their rights …” See, Congressional Report Details Squalid Conditions Faced By Jan. 6 Defendants; Congressional Republicans slam treatment of Jan. 6 defendants held at D.C. jail.

Even mainstream media and judicial authorities have begun to acknowledge things are not right. See, e.g., Problems at D.C. Jail Were Ignored Until Jan. 6 Defendants Came Along; The Crisis at the D.C. Jail Began Decades Before Jan. 6 Defendants Started Raising Concerns; A Judge Urged The Justice Department To Investigate Jail Conditions For Jan. 6 Defendants; Judge holds Washington, D.C., jail officials in contempt in a Jan. 6 riot case.

So, what can be done to assure that America – unlike Russia, China, and half the politicized legal systems of the world – does NOT hold, detain indefinitely, mistreat, forget, or otherwise leave an impression that political prisoners exist, part of a nefarious “two-tiered system?”

A lot. 

First, the exact status of all cases should be made public now, and every succeeding day. That should not be hard. Every American is owed that clarity.  

Second, reporters, family, friends, and concerned citizens should be able to meet with these indefinitely detained individuals. Not to do so raises serious suspicions, suggesting those in charge can do as they wish, are unaccountable. That is not good for the detained or any of us.

Third, counsel by name – for all detained individuals – should be made public. Like Fifth Amendment assurances of due process, Sixth Amendment guarantees are not negotiable.

Fourth, with the consent of the detained, televisions cameras, congressional investigators, members of Congress, relevant State officials should be permitted to see these individuals and conditions.

Fifth, especially in these cases, justice should return to being swift and fair, since the question now arises whether a Democrat-controlled federal and DC government, where anti-Trump feeling runs strong, could be intentionally disregarding these Americans, letting them languish.

Many years ago, as an Assistant Secretary of State, one of my priorities was assuring any influence America had to seed and preserve rule of law around the world, fair treatment, and generic respect for those arrested, charged and detained was understood by foreign officials.

Many times, these officials had a political agenda tied to holding prisoners. Aware, we stood against politics in the legal process. We must now hold ourselves and those in power to that standard. 

Bottom line:  The January 6 defendants deserve protection against the perception and fact of political punishment. Only that assures rule of law. Absence violates rule of law. They cannot be detained and forgotten, not in America. The time is now to insist on that standard and proof of it.

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