The O'Reilly Fear Factor

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It should come as no surprise that conservative Fox News commentator Bill O’Reilly is praising the military-detention bill that President Bush recently got through Congress. In a commentary dated September 29, 2006, which was posted on the Fox News website, O’Reilly said that “the only downside for the president is that interrogation methods like water boarding are no longer allowed.”

The new detainee law constitutes the most “extreme reordering” of America’s criminal-justice system since our nation’s founding. It cancels habeas corpus and fundamental procedural rights of due process that stretch back to Magna Carta. Federal grand-jury indictments for terrorism are no longer necessary. Under the new law, criminal prosecutions for terrorism can now be handled by the military, which is part of the executive branch of government, rather than by the judicial branch. There will no longer be any right to a jury trial in which the jury consists of ordinary citizens. Military personnel will decide the guilt or innocence of the accused and, unlike in federal-court proceedings, will be permitted to rely on hearsay evidence and evidence acquired by torture to convict the defendant. Right to counsel will be limited. There will no longer be a right to a speedy and public trial. Military judges, not independent federal judges, will preside over the proceedings. The military will be free to inflict cruel and unusual punishments on those judged to be terrorists.

Nevertheless, O’Reilly insists that “we’re not losing any rights,” even though the rights to a indictment, due process of law, counsel, a jury trial, a speedy and public trial based on competent evidence, and protection against cruel and unusual punishments are all enumerated in the Bill of Rights.

Maybe O’Reilly thinks that the new detention law applies only to foreigners, not Americans. If so, he, along with other Americans, might be surprised to learn that the new law does not limit the definition of “unlawful enemy combatants” to foreigners. After all, don’t forget that U.S. officials have applied the term to Jose Padilla, an American arrested in Chicago and accused of terrorism, initially as an “enemy combatant&#148 in military custody; and, more recently, as a criminal defendant in U.S. district court.

But even if the law did apply only to foreigners accused of terrorism, by creating a bifurcated legal system in which foreign citizens would get the military-tribunal treatment, while Americans accused of terrorism would continue to be prosecuted in federal court, the detainee bill would entail an abrogation of the long-held principle in U.S. criminal jurisprudence of equal treatment under law.

Who decides who the terrorists are under the new terrorism law? U.S. military personnel, who answer to the president, will make that determination rather than civilian juries in federal courts. That makes O’Reilly happy because he intimates that he trusts the military more than he trusts civilian juries. He even laments the fact that convicted terrorist Zacarias Moussaoui received a trial by jury in a U.S. District Court, as the Sixth Amendment requires, rather than a military tribunal, because it cost American taxpayers millions of dollars to prosecute and convict him in U.S. district court.

What about those “terrorists” whom the feds prosecuted in Detroit a couple of years ago? You know — the case in which “terrorists” were either acquitted by a federal jury or the charges of terrorism were tossed out by an independent federal judge. That case undoubtedly cost taxpayers millions of dollars too.

O’Reilly didn’t talk about the Detroit terrorism case in his commentary. But undoubtedly, he would regret that those Detroit “terrorists” were not sent to the kangaroo military tribunals, where they would have been easily convicted and executed, rather than to the federal court system where a jury of ordinary Americans found them not guilty and where an independent federal judge dismissed other charges against them.

Why, maybe O’Reilly even wants the feds to seek the military extradition and execution of Canadian citizen Maher Arar, whom U.S. officials arrested and sent to Syria for torture because they were certain, erroneously as it turned out, that he was a “terrorist.”

Why does O’Reilly place his faith in the military to determine who is a terrorist, rather than in civilian juries and the federal-court system that the Framers established in the Constitution? Well, he says it is because “most Americans are in danger and want the military to protect them.”

Translation: “I’m scared to death, my knees are knocking, and I’m willing to surrender rights and freedoms that stretch all the way back to Magna Carta in the hope that the federal fox will protect us chickens from those big bad terrorists.”

But unlike Bill O’Reilly, I don’t live my life in fear of “the terrorists,” and like our American ancestors who enacted the Bill of Rights, I’m not willing to trade our fundamental rights and freedoms for the pretense of federal “security.”

October 3, 2006

Jacob Hornberger [send him mail] is founder and president of The Future of Freedom Foundation.

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