Trials and Tribulations
Necessity is the plea for every infringement of human freedom. It is the argument of Tyrants; it is the creed of slaves.
I recently heard a spokesman for the Boston police make the comment, "The Constitution isnít designed to protect molesters!" Over the last couple of months, we have all been exposed to a clever but ridiculous remark by Justice Robert H. Jackson who, in addressing the controversy surrounding the secret trials and punishment of Nazi spies captured in the US during World War II, claimed that, "There is a danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the Bill of Rights into a suicide pact."
Somewhat less widely bruited about has been a similar comment made during the Civil War by Lincoln, "The Constitution is not a suicide pact". This was a lame effort to squelch questions from those who, while agitated about his treatment of dissenters, had not yet become sufficiently vocal or unambiguous in expressing their concerns to have joined their rasher fellows in prison. These historic declarations are deployed as supports of the proposition that the Constitution should not be held to extend its mantle of protection to non-Americans, a second-string proposition championed by advocates who had begun with Lincolnís notion that the protections need not even apply to Americans if the current peril could be characterized as of sufficient magnitude, but who backed off that position in the face of righteous opposition.
This issue has currency due to the debate regarding the use of military tribunals for the imposition of justice upon terrorists, a debate marbled with much misdirection, irrelevancy and muddy thinking. First and foremost, the proposition that terrorists should be tried in a special judicial proceeding, and one skewed in many ways against the defendant, misstates itís essence: the proposition is really that those accused of terrorism should be so singled out for diminished status. Until a trial has been conducted, we donít know that they are terrorists and thus ostensibly qualified for this special treatment. The question of such qualification is why we have the trial.
The need for military tribunal enthusiasts to finesse the stumbling block of such a simple bit of common sense has fostered the floating of this severely flawed and dangerous notion that the rights noted in the Constitution only apply to American citizens. This serves their (mysterious) purpose because all those to whom the special trials are expected to be applied are, so far, foreign.
Our Constitution does not create rights; it simply recognizes them, and obliges its creature, the United States government, to respect them through the imposition upon that government of certain behaviors and limitations. We who have, through the Constitution, delegated authority to that government (on good behavior) hold the rights in question to be inalienable and inherent in the status of being human, not in the status of being an American citizen. We claimed those rights before we were American citizens! We claimed them when we were British citizens and decided that the British governmentís insufficiency of respect for them justified our killing of a whole lot of its supporters, as well as the sacrifice of the lives of a great many of our own. We recognized that all lawful and proper use of government force, outside of the exigencies of hot battlefield immediacy, affords to its object respect for those rights.
Those who argue otherwise should be recognized and denounced as enemies of the Constitution. They argue that if the Constitution is adhered to disaster awaits us. They cloak their spite for our supreme law in round-eyed protestations that it is only the current crisis that makes necessary the compromises that they urge upon usÖ but another crisis is always just around the corner. If it is not todayís war on terrorism, theyíll trot out last yearís hit, the War on Drugs. Or one of the others waiting in the wings; perhaps the War on Poverty, or the War on Racism. These same advocates specialize in crisis-mongering. Bourne said, "War is the health of the State", and those who place their hopes for power and privilege on directing or sharing in that of the State busily and ceaselessly engage themselves in declaring war (or its "moral equivalent") at every opportunity and on any pretext.
Even were the "special status" authority being sought used only upon non-Americans at this time, the precedents of both subversively misinterpreting the nature of rights and the Constitution, and the exercise of the principle that sufficiently malodorous or "other than us" miscreants can or should be afforded diminished protections of law will have been established or reaffirmed.
The Constitution does protect molesters, and it does protect terrorists, and it does protect foreigners and even strident or honey-tongued advocates of its erosion and abandonment. It doesnít protect them from justice, but it does protect them from arbitrary power, dehumanization and lynching. It should terrify to the point of activism the general population-- those people of, by, and for whom the government is-- that those, from among the highest offices in the national government down to a municipal agency in a single city, to whom we have delegated the exercise of our authority of force think that these things are not so. How long then before those who write things like this essay, or reveal that they think them, become hindrances in some War Effort, therefore properly susceptible to "special treatment"?
Echoing William Pitt, but in a more generous vein, Louis Brandeis observed that, "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding". Embracing this wisdom, it is not necessary to ascribe evil purpose to the enemies of the law, a perspective that, after all, comes hard to those of sufficient good character as to accord the Constitution and the Liberty which it honors and defends the respect that they deserve. But it is necessary that such true Americans stir themselves to act in the faith that whatever the motives or misunderstandings of the other side, and however subtle, obscure or insignificant the danger may seem, our zeal in preserving what has served us so well must be at least as great as that of those who would diminish it.
Remember, "All that is necessary for evil to triumph is for good men to do nothing", (Edmund Burke). Raise your voice.
© Peter E. Hendrickson
P.S. Regarding the risks to juries and judges and the national order trotted out as justifications for these special trials, like tales of the boogie man presented to keep children on good behavior, I offer up one final quote, from Thomas Jefferson: "I would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it."