Out of the Woods

Whatever happened to the Rule of Law?

About half the first ten Amendments to the Constitution have to do with the rights of persons suspected of having committed a crime. The 4th amendment protects against unreasonable search and seizure. If the police suspects you of a crime they cannot just burst into your house, search the place and take stuff. The 5th Amendment protects you against just being arrested without a proper indictment. It prohibits compelling you to incriminate yourself or being “deprived of life and liberty” without due process of law. If you are accused of a crime, the 6th Amendment says, you are entitled to a speedy and public trial by a jury. You have a right to know what you are accused of, meet your accusers, and have an attorney to help you defend yourself. The 7th amendment lists one’s rights in civil cases and excessive bail is prohibited by the 8th Amendment.

Since 9/11 all of these Amendments have been violated by the US government. All you need is the government to accuse you of being a terrorist and all bets are off; the Constitutional protections disappear. The US government has assassinated US citizens; others have just disappeared at Guantanamo. Congress has passed a law that allows the military to arrest you and hold you indefinitely if you are accused of terrorism.

The principle of the Amendments is that the government may not act upon an accusation unless it has satisfied a jury in court that its accusations are true. Arrests must be followed by an indictment and a speedy trial. Anything less is a violation of the victim’s constitutional rights.

But you say, “These people are are terrorists. They do not care about our rights. They just kill Americans where they can. This is 'war.' ” But that is the whole point of the amendments: a person accused of any crime, including terrorism, has the right to speedy trial and all the other protections until they are found guilty in court by a jury.

But you insist “These people do not care about our rights. Why should we care about theirs?" That's true enough but irrelevant. The person who steels your wallet, the hit and run driver who leaves you bleeding in the street, the gang that breaks into your house to steal your valuables also does not care for your rights to secure possession of your property or to bodily security. The arguments applied to terrorists apply just as well to ordinary thieves and cutthroats. But we bend over backward to make sure that they are not punished for what we cannot prove they really did. How are terrorists any different from common criminals in their disregard for their victims' rights?

What is the argument for treating persons accused of terrorism differently from others that attack and injure you? The only argument available to those who want to deny constitutional protections to persons accused of terrorism is to say that we and the terrorists are at war and that constitutional guarantees do not apply to combatants.

But if its a war, the accused terrorists are not alone. We are combatants also and like our enemies in war we are not entitled to constitutional protections. We do not march into battle protected by peace time human rights to life, liberty and the pursuit of happiness.

If there is a war on terrorism all rights, not only theirs, are suspended. If we are willing to kill them or make them disappear without trial for indefinite periods in some military brig or another, we also give up our own rights.

That is obviously not a good bargain for us. The price of denying constitutional rights to others is to surrender our own.

9/11 brought great grief to many families in the US and elsewhere. But the graver effect of that attack was that we adopted the lawless ways of our attackers. We are turning our backs on the rule of law that we have developed over two hundred years and are returning to the savagery of earlier systems of crime and punishment that the Founders hoped to make a thing of the past.

Presidents Bush and Obama have turned their backs on that project of strengthening the Rule of Law. American citizens who support that are making a serious mistake.