protection from unreasonable searches and seizures, judicially issued arrest warrants and search warrants, the right to be formally notified of criminal charges, the right to remain silent, the right to counsel, the right to confront witnesses, the right to a speedy trial, the right of trial by jury, the right to be free from cruel and unusual punishments, and the right to due process of law.
A History of Violence How did these rights and guarantees arise? They stretch back centuries into British history, and they arose specifically in the resistance by the British people against the tyranny of their own government. Consider, for example, the concept of due process of law. It stretches all the way back to the year 1215. Prior to that time, the king wielded the power to arbitrarily arrest British citizens and cart them away to the Tower of London to be tortured or executed. No formal charges. No trial. Just sheer omnipotent, dictatorial power. Then came Magna Carta in 1215. The English people had had enough of that brute, capricious power, especially given that it would inevitably be exercised against citizens who criticized the king or his policies. At Runnymede, the English barons extracted one of the most critical concessions from government in history. The king acknowledged that his powers were, in fact, limited. He stated that never again would an English king deprive people of their lives or property in violation of “the law of the land,” a principle that would become known as “due process of law.” That’s the way it was for all the other rights and guarantees provided in those four critically important amendments in the Bill of Rights. They were all born in the resistance by the English people against the tyranny of their own government. The same holds true, by the way, with respect to habeas corpus, which has been called the linchpin of a free society, and which was expressly protected in the original Constitution. Habeas corpus is a judicial procedure that was designed to secure freedom for people who were being unlawfully detained by the king or his personnel. While there were certainly abuses during the first 200 years of American history—such as the shameful incarceration of Americans of Japanese descent during World War II—by and large Americans lived under a government that lacked the power to deprive people, both foreigners and Americans, of life, liberty, or property in violation of due process of law. And then came 9/11. That event brought about the most revolutionary legal transformation in American history, one via which the government now wielded the same authority wielded by totalitarian dictators throughout history—the power to round up people, incarcerate them for life without a trial, torture them, or even execute them. In other words, the same types of powers that King John wielded and exercised before Magna Carta. The same types of powers that English citizens had resisted through centuries of British resistance to British tyranny. U.S. officials pulled off this revolutionary change without even the semblance of a constitutional amendment. How did they do that? By employing one of the cleverest devices imaginable, one that
could have only been successfully pulled off in the fear-laden environment after 9/11, when most Americans were willing to accept anything the government did to keep them safe from the terrorists.
Tyrannical Sleight of Hand
Soon after 9/11, President Bush decreed that U.S. officials would now have the power to treat terrorism as either a criminal offense or an act of war. Prior to that time, terrorism had always been a criminal offense and only a criminal offense. In fact, it still is a federal criminal offense; terrorism is listed in the U.S. Code as a federal crime. Federal grand juries return criminal indictments for terrorism. Federal judges preside over terrorism prosecutions. Federal juries determine the guilt or innocence of people accused of terrorism. One of the people charged in the 1993 terrorist attack on the World Trade Center, Ramzi Yousef, is today serving time in a federal penitentiary after being convicted of terrorism in a federal district court. The same holds true for Zacharias Moussaoui, who was accused of participating in the 9/11 terrorist attacks. What Bush did was provide an extremely clever way by which U.S. officials could ignore, if they chose, the protections in the Fourth, Fifth, Sixth, and Eighth Amendments, at least when it came to terrorism cases. The military and the CIA now had the option of treating a person accused of terrorism as an “illegal enemy combatant” in the “war on terrorism.” In such cases, the Bill of Rights was no longer applicable, and the government now wielded omnipotent power over its subjects—the power to incarcerate them for life without trial, the power to torture them, and the power to execute or assassinate them. In the beginning, U.S. officials implied that such extraordinary powers would be exercised against foreigners only, but the logic of the government’s position belied that implication. Since terrorists could be homegrown American citizens, the government’s power to wage its “war on terrorism” obviously extended to them as well. Moreover, U.S. officials repeatedly emphasized that the entire world was the battlefield in the war on terrorism. That obviously included the United States. Thus it is that we now live under a government whose powers closely resemble those exercised by the greatest totalitarian dictatorships in history—a government that the Framers assured Americans could never come into existence under a Constitution that limited the government’s powers to those enumerated in the document itself. At the risk of belaboring the obvious, the Constitution’s enumerated powers do not include the omnipotent powers now being wielded and exercised by the military and the CIA. The government tells us that these extraordinary powers are necessary to keep us safe. But who keeps us safe from the government that is now wielding omnipotent, dictatorial powers over the citizenry? As our American ancestors understood, the greatest threat to people’s freedom and well-being comes not from foreign threats but from their very own government. As for me, I would rather be free than be safe. If I have to surrender even one iota of freedom to be kept safe, then I’m not interested. I’m willing to take my chances at the hands of the terrorists. At least I’ll die a free man rather than a cowering serf who was willing to trade his liberty for the pretense of security.
11 Young American Revolution