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The Rule of Terror
by Jacob G. Hornberger, June 2000
THE HORRIFYING
SEIZURE of Elián Gonzalez is one more reflection of the depths of
depravity to which the U.S. government has plunged in our lifetime. The
episode also reflects the extent to which all too many Americans continue to
deny the reality that beneath the velvet glove of the benign welfare state
lies the iron fist of a brutal, terrifying government.
President Clinton and Attorney General
Reno said that they had no choice — that the military-style raid on the
home of the Miami relatives of Elián Gonzalez was necessary to
enforce “the rule of law.”
They are wrong. The raid was instead a
denigration of the rule of law and an elevation of the rule of terror —
the same type of terror that reigns in the nation from which the boy was
taken by his mother.
What does the term “rule of
law” actually mean? It means that in a free society, people are able to
govern their conduct according to well-defined laws that have been duly
enacted and judicial judgments interpreting the laws.
On the other hand, in societies
governed by the “rule of men,” people must govern their
conduct through obedience to the arbitrary, constantly shifting dictates of
government bureaucrats.
Reno and the INS claim that their
terroristic, predawn raid was justified because the INS had revoked the
“parole” under which it had given custody of Elián to the
Miami relatives. Thus, in the classic bureaucratic style that has come to
characterize such agencies as the IRS and the ATF, they commanded the
Miami relatives to turn the boy over to his father and threatened the use of
force in the event of recalcitrance or disobedience.
But the government had an alternative
remedy when its orders were not immediately and unconditionally obeyed
— the same remedy available to every citizen of the United States
when an agreement is thought to have been breached. The government could
have gone to court to enforce the parole agreement and secure the
necessary judicial orders for the change in custody, pending the outcome of
the boy’s asylum claim in a federal court of appeals.
Why would this have produced a
different result?
One reason is that a judicial proceeding,
unlike a predawn raid, allows both sides to be heard before a fair and
impartial judge, and that’s important, especially to the losing side.
Another reason is that Cuban-
Americans, like many other Americans, have a deep and abiding respect for
America’s judicial system. If either a state or a federal court had
issued a final order commanding the Miami relatives to surrender the boy
forthwith, on pain of contempt for failing to do so, there is little doubt that
they would have complied, especially because their attorneys would certainly
have advised them to comply.
The difference between a bureaucratic
edict and a judicial order is the difference between night and day, especially
for people who have fled a society whose very existence is based on the rule
of men and the rule of terror rather than the rule of law.
Due process of law
Due process of law has always been the
major underpinning of the British and American legal systems. The term
itself stretches all the way back to Magna Carta — the “Great
Charter” that the barons of England extracted from King John at the
point of a sword. In that great document, in which a king admitted that his
powers were limited, the term used was “the law of the land.”
Over the centuries, it evolved into “due process of law.”
What does due process mean and
why is it so important? In a procedural sense, it means that no government
official can legitimately deprive a person of life, liberty, or property without
following long-established judicial procedures, including notice and hearing
before a judicial officer in a court of law. Due process of law guarantees that
a person will have the opportunity to receive advance notice of a seizure and
to present his side of the case before a fair and impartial judge before the
seizure is effected.
In ancient times, the king could simply
send his forces across the land and arrest citizens indiscriminately and
incarcerate them for indefinite periods of time. Or he could send his minions
to arbitrarily seize a person’s real or personal property. Don’t
forget: It was commonly believed that people’s lives and property
ultimately belonged not to them but rather to the king himself. Thus, the
common conception was that life, liberty, and property were simply privileges
bestowed by the king, rather than fundamental rights bestowed by God, and
therefore that such privileges could be revoked by the king any time he
wanted.
Thus, the concept of due process of
law was a revolutionary departure from that notion. It placed a dramatic
limitation on the power of the king to seize people and their property. First,
it required the king to give notice to the person and then it required a
hearing before a magistrate at which the person could be heard.
America’s Founding Fathers
understood the vitally important nature of due process of law, which is why
they incorporated the notion into the Fifth Amendment to the U.S.
Constitution. Later, the concept was applied to the state governments
through the Fourteenth Amendment.
The raid on the home of
the Miami relatives violated this centuries-old bedrock of liberty and
jurisprudence. What Bill Clinton, Janet Reno, and the INS did was exactly what
the brutal kings of old did — send well-armed military forces into a
private home to seize the body of a human being. In principle, their conduct
was no different from that of nasty King Edward “Longshanks,”
depicted in the movie Braveheart.
Judicial orders vs. bureaucratic decrees
What should government officials have
done? They should have filed an action in court asking for a judicial order
commanding the Miami relatives to return the child to his father. The court
would have set a judicial hearing and would have notified the Miami relatives
to appear and show cause why Elián should not be returned to this
father. The relatives would have had the right to present their arguments in
a judicial hearing. They would have been accorded their “day in
court.”
If the court had ruled against the Miami
relatives, they then would have been faced with violating a court order, which
is an entirely different thing from a bureaucratic decree. The likelihood of
their having done that is minimal, but if they had, their resistance would have
lost much of its legitimacy.
Would such a judicial procedure have
resulted in delay? Of course, especially if there were appeals of the lower
court ruling. But that is the nature of due process of law — it does not
rush to judgment (unless there is imminent danger) but instead proceeds in a
logical, dispassionate way to a final judgment.
Ironically, by proceeding in the manner
it did, the Clinton administration pursued the exact course of action that
Fidel Castro pursues in Cuba. When the Cuban government wishes to seize a
person, do you think it first provides notice and hearing to the aggrieved
person? The absence of due process of law is the very essence of a
tyrannical government. This is why every American who values his own
freedom, regardless of whether he favored Elián’s return to his
father or not, should be condemning the Elián raid. After all, if U.S.
paramilitary forces are accorded the power to do this to a poor Cuban-
American family, they can do it to any American family.
Doing it for the children
Clinton, Reno, and INS Commissioner
Doris Meissner justified the raid by their purported concern for the welfare
of the child. But how can that “concern” be reconciled with the
forcible extraction of the child at the point of an assault rifle from the arms
of the man who had helped save the boy’s life at sea? More important,
their own justification for the military-style assault belies their claim that
they had the welfare of the boy at heart. For if there was any chance
whatsoever that a shootout would occur, morality and the welfare of the
child dictated that the raid not take place at all. After all, wasn’t it
Clinton’s and Reno’s concern for the children that cost children
their lives in the Waco inferno?
Clinton’s and Reno’s claim
that they simply wish to reunite a father with his son is also overshadowed
by the official long-standing policy of the Clinton-Gore administration to
repatriate Cuban refugees back into communist tyranny. Let’s not
forget that only recently, in a desperate attempt to capture defenseless
Cuban refugees before they reached American shores and to repatriate
them into communist tyranny, U.S. Coast Guard officials attacked them with
water cannons and pepper spray in the middle of Miami Harbor.
Make no mistake about it: Father or no
father, forcible repatriation to Cuba is what would have happened to
Elián if U.S. government officials, rather than Donato Dalrymple, had
found him clinging to that inner tube.
The winner in all this, of course, is Fidel
Castro, who has every reason in the world to be celebrating. Not only has he
converted a sitting U.S. president, attorney general, and INS commissioner
into his emigration agents, he also has displayed to the world that the U.S.
government behaves just like his.
Mr. Hornberger is founder and president of The Future of
Freedom Foundation. A detailed account of his trip to Cuba last year —
“A Libertarian Visits Cuba” — is posted on this
website:
Part 1
Part 2
Part 3
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