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The Greatest Threat to Our Freedom, Part 2


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Suppose a nation’s constitution prohibits the ruler of the country from infringing fundamental, God-given rights such as freedom of speech, freedom of the press, freedom of religion, privacy, economic liberty, and gun rights. Suppose also that the constitution provides a myriad of procedural obstacles and obstructions before the government can arrest, incarcerate, and punish a person, such as a right to formal charges, right to counsel, right to trial by jury, right to confront witnesses, right to due process of law, and so forth.

What happens if a ruler simply decides to ignore those constitutional limitations on his power? Suppose he orders his military and intelligence forces to simply start rounding up people who are criticizing his regime and his policies, incarcerating them without trial, torturing them, and executing them. What recourse would people have, short of a violent revolution?

Actually, none. No matter how well a constitution limits the powers of the ruler to take people into custody and incarcerate and punish them, there is no assurance the ruler is going to comply with them. That’s where the ancient writ of habeas corpus comes in. The purpose of habeas corpus, which has been called the linchpin of a free society, is to provide an enforcement mechanism with respect to procedural barriers to arbitrary arrest, incarceration, and punishment of people.

Here’s how habeas corpus works. Let’s assume that President Obama orders the arrest of a police officer who is calling for the legalization of drugs. The DEA arrests the cop and jails him. The cop clamors for his release, arguing that he has the fundamental, God-given right to question the drug war or any other government policy. Obama refuses to relent, saying that the cop’s pronouncements are demoralizing the DEA and encouraging drug use among the American people, not to mention the fact that the cop is himself probably engaging in drug dealing.

How habeas corpus works

What can the cop do to secure his release? In the absence of habeas corpus, he can’t do anything. He’s in a high-security penitentiary, and there’s no way that he’s going to be able to break out. He just keeps insisting that his rights are being violated, and his jailers just keep smiling.

That’s why the ostensible protection of fundamental rights in totalitarian countries is meaningless. Notwithstanding beautiful words about rights in the nation’s constitution, foreign totalitarian governments simply ignore them when they choose to do so, taking into custody those who question or criticize the government and its policies, and holding them indefinitely and torturing them until they get their thinking straight.

In our example, however, the cop has a remedy. He (or his lawyer) files a petition for a writ of habeas corpus with a judge. In the petition, he alleges that the DEA is holding him unlawfully. The judge issues the writ, which is then served on the DEA official who is holding the cop. The DEA official must then bring the cop to court at a set date and time to show cause why he should be permitted to continue holding the cop. The habeas corpus hearing is not a trial but simply a hearing to determine whether there is a just cause for holding the cop. If the DEA official tells the judge that he’s holding the cop because he questioned the drug war, the judge will say, “That’s not a valid reason for holding the man. Freedom of speech entitles people to question any government policy they want.” The judge will order the man released, and the DEA (and the president) is expected to comply with the judge’s order.

Suppose, however, that the DEA official says, “Your honor, we suspect that the cop has been selling drugs in violation of the law.” That’s obviously a different case from simply questioning the drug war (unless the judge determines that drug laws are unconstitutional, which would enable him to order the cop’s release on that ground).

But how does the judge know the allegation is true? He requires the DEA official to give some sworn testimony that there is evidence to support the allegation. If the government fails to show any evidence, the judge will order the cop to be freed.

Is that the end of it? No. Because what happens if the DEA simply returns the cop to his cell and keeps him there for years without bringing him to trial? If they don’t formally charge him with the drug-law violation and bring him to trial within a reasonable period of time, the cop will simply file a new petition for writ of habeas corpus, contending that he is being held without being formally charged. The judge will effectively order, “Charge him or release him.” If the DEA fails to file formal charges against the cop and fails to prosecute him, the judge will order his release.

Habeas corpus is an extraordinary legal remedy that developed in centuries of resistance on the part of the English people against the tyranny of their own government. Although the people had secured the right of due process of law through the Magna Carta, English kings nonetheless would continue to take dissidents into custody, torture them, and execute them. Habeas corpus came into existence to force the king to comply with due process and other procedural protections.

It should be no surprise, then, that the Framers expressly referenced habeas corpus in the Constitution, which states in Article 1, Section 9, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

The express mention of habeas corpus reflects the mindset of our American ancestors. They understood that the federal government that would be called into existence by the Constitution would inevitably attract the type of people to public office who, sometimes with the best of intentions, would arbitrarily arrest, incarcerate, torture, and even execute people for the wrong reasons, e.g., criticizing the government. If our ancestors had simply trusted the federal government not to do such things — that is, if they had trusted federal officials to honor the rights and guarantees of the people — they wouldn’t have felt the need to include habeas corpus as an essential part of the new constitutional order.

But our ancestors didn’t trust the federal government. They knew that it would inevitably attract the kind of people who were doing the same thing that the English rulers had done to their people. That’s why habeas corpus became an enshrined part of America’s constitutional system from the formal beginning of the republic.

Obviously, habeas corpus depends on two important things.

The first is the existence of an independent judiciary, one that is willing to stand up to the executive branch of government. If judges operate simply as agents of the president or are fearful of what the president might do to them if they rule against him, habeas corpus becomes a meaningless protection. The second is the assumption that the judiciary is the final arbiter in the matter and that the executive branch will comply with the judiciary’s rulings.

The role of emergencies

Let’s now turn to 9/11, which brought about what is arguably the largest permanent transformation in American life in U.S. history, larger, in my opinion, even than the gigantic transformation from a free-market system to a welfare state wrought by Franklin Roosevelt during the 1930s.

I mention Roosevelt for more than one reason. He fully grasped one of the most important principles in governance: that for those who seek greater power over the lives and resources of the people, there is no better opportunity to do so than a crisis. People are scared. They want to be kept safe. They’re willing to let the government do whatever is necessary to keep them safe, even if the government’s actions infringe upon their freedom. After all, the people think, the emergency or crisis won’t last forever. As soon as it’s over, the government will restore the freedoms of the people.

That’s what happened during the Great Depression. People were scared. They were faced with what seemed to be a permanent state of unemployment and economic depression. They were facing the specter of famine and starvation. Their free-enterprise system had failed, or so they were told. Thus, they were willing to accept the revolutionary transformation of the economic system, under the belief that at least some of the “reforms” were temporary measures intended to save free enterprise.

But as we know, the “reforms” didn’t turn out to be temporary at all. They instead constituted a permanent shift in American economic life. That’s why we have, to this day, such things as Social Security and an ever-growing welfare state, irredeemable paper money instead of a gold standard, government-business partnerships, price controls and minimum-wage laws, and the idea of government management of the economy.

Roosevelt knew exactly what he was doing when he used the crisis of the Great Depression to bring about a permanent transformation of American life, under the pretense that many of his emergency measures would be temporary and simply designed to save free enterprise, not abandon it.

That’s what 9/11 did. It supplied U.S. officials with an “emergency” that enabled them to grasp extraordinary emergency powers — powers that would ostensibly be temporary. That is, they would remain in effect only as long as it was necessary to win what U.S. officials termed the “war on terrorism.” Since it would be impossible to determine when such a war would finally be won, however, U.S. officials made it clear from the start — and continue to make it clear today — that for all practical purposes, the war will continue as long as the present generation is still alive. At some indefinite point in the future — perhaps seven or eight generations from now — the war on terrorism will finally be won, long after the current generation has passed from the scene.

People just need to accustom themselves, U.S. officials said, to this new reality — that the war on terrorism would last even longer than the 40-year-long “war on drugs” — indeed, even longer than the decades-long Cold War. But Americans could find solace in the fact that the emergency powers seized by the government after 9/11 were supposed to keep them safe for the rest of their lives.

The most extraordinary power seized by George W. Bush after 9/11 involved the “illegal enemy combatant” doctrine. It enabled the president, the Pentagon, and the CIA to seize any person anywhere in the world, take him into custody, incarcerate him without trial, torture him, and execute him. The only prerequisite for the exercise of such an extraordinary power was that the person had to be labeled a “terrorist” by his captors. But since the captors had the final say on who was a terrorist, as a practical matter the prerequisite was no limitation at all.

Why is this particular power so extraordinary? Because it is the ultimate power of any totalitarian dictatorship. It entails the power of a dictator to send his forces to round up and arrest people, incarcerate them in prisons, dungeons, or concentration camps, torture them, and kill them with impunity. What greater power could any dictator have than that?

To put such power into context, that’s what the Magna Carta was all about. The king, through his forces, had been seizing people, carting them away, torturing them, and executing them. At Runnymede in 1215, at the point of a sword, the king permanently surrendered such power over the people, promising to never take a person’s life or property in violation of the “law of the land,” a phrase that evolved into “due process of law,” the term that ultimately found its way into the Fifth and Fourteenth Amendments to the U.S. Constitution.

Historical examples

Consider another example. Thirty years ago, Egypt experienced its own 9/11 when the country’s president, Anwar Sadat, was assassinated. Seizing upon the crisis, the new president, Hosni Mubarak, acquired emergency powers to deal with the crisis, including the power to arbitrarily arrest people, imprison them without trial, torture them, and execute them.

Mubarak’s powers were to be only temporary. They were to last only as long as the emergency lasted. Thirty years later, however, the powers were still in existence. In fact, one of the main reasons for the revolution against the Mubarak dictatorship was the abuse of that 30-year-old temporary, emergency power.

Even to this day and even though Mubarak is gone from office, Egypt’s military dictatorship absolutely refuses to relinquish these extraordinary, temporary, 30-year-old, emergency powers, despite the Egyptian people’s demands that it do so. The military says that the powers are still needed to keep the people safe, from both terrorists and drug dealers.

Or consider the attack on the Reichstag, when the German parliament building was fire-bombed by terrorists. Adolf Hitler went to the Reichstag and sought temporary emergency powers to wage a war on terrorism. The Enabling Act gave him temporary emergency powers to deal with the crisis. Those powers enabled him to use his forces, including the military and the Gestapo, to arrest suspected terrorists and traitors, incarcerate them, torture them, and execute them, often after a kangaroo judicial proceeding in a special national-security court called the “People’s Court.” Among the German “traitors” caught, tried, and executed years later were college students Hans and Sophie Scholl and their friends in the White Rose movement, who, in a series of pamphlets, questioned the legitimacy of the Nazi regime and called on Germans to oppose it.

Every time the temporary powers were set to expire, Hitler would dutifully request the Reichstag to renew them, a request that the Reichstag continued to grant until Hilter was dead. In the minds of rulers who have become accustomed to wielding extraordinary power, the emergency that is used to justify the continuation of such power is never quite over.

That’s the power that is now wielded by the president of the United States. That’s the country we now live in, one in which the president, the Pentagon, and the CIA now have the authority to arrest a person here or abroad on suspicion of being a terrorist, to incarcerate him without trial, torture him, and execute him, possibly after some sort of kangaroo proceeding in a special military tribunal run by military officials.

That was what the prison camp at Guantanamo Bay was all about. It was designed to be a facility that would be totally independent of any constitutional restraints and totally independent of the U.S. federal judiciary, including the U.S. Supreme Court. The idea was that the president, the Pentagon, and the CIA would have the omnipotent authority to arrest people anywhere in the world and transport them to the government’s international prison camp and tribunal center at Guantanamo Bay for treatment as terrorists. No second-guessing of their actions would be permitted. No federal court interference. No constitutional technicalities. No independent journalists. Nothing could be permitted to interfere with the efforts of the U.S. national security state to keep Americans safe and to bring order and stability to the world.

Part 1 | Part 2 | Part 3

This article originally appeared in the February 2012 edition of Freedom Daily. Subscribe to the print or email version of The Future of Freedom Foundation’s monthly journal, Future of Freedom (previously called Freedom Daily).

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    Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.