Yes, But It's Our Star Chamber
The Declaration of Independence expressly declares that all men are created equal — even Arabs, for those unable or unwilling to make the leap.
All men are endowed by their Creator with certain inalienable rights, among them life, liberty, and property (later revisions changed this to "the pursuit of happiness;" think about it — quite difficult to pursue happiness without any property).
And by the way, Mr. Jefferson used the word "inalienable" to mean that these rights cannot be taken away, not even by his own ruler at the time, the King of England. Jefferson was a rebel.
And yet President Bush's military tribunals may deprive foreign citizens of life, liberty and property without following any of the rules which are allegedly so precious to every American, and for which our veterans are supposed to have fought and died.
How American is that? Not very.
What exactly is the fear? That if we give Osama bin Laden a jury trial, he'd be acquitted?
This isn't O.J. Simpson, people.
So keep the Bill of Rights intact, give foreign terrorists a jury trial, and if they are guilty, punish them according to the law. If this includes the death penalty, fine. But the point is, we must follow our own rules in handing out such punishment.
The question is not whether we should punish terrorists. The question is how we should punish terrorists. Should our government obey the law, or is the government above the law? Is the government a criminal enterprise, shooting enemies with as much of a fair trial as a gangster provides, or does the government claim to be something more?
In England, there once was a court known as Star Chamber. Do not ever tell a judge that his courtroom is a Star Chamber; he will become very angry, as a very wise law professor used to say. The English abolished the Star Chamber because it was used by the kings to abuse their political enemies.
Long after the Star Chamber was abolished, our forefathers nonetheless decided that England was oppressive, and so they left. They voted with their feet. After geographic distance proved insufficient to protect their freedom from the grubbing hands of the English government, they rebelled. They seceded. They fought a war for the right to govern themselves, and to strictly limit the government in ways that the English government was not limited. Having lived under tyranny, and having disliked it, they decided to make a change.
Now, 225 years later after the Declaration of Independence was proclaimed, our president has decided that foreigners can be railroaded, without a jury trial. The president, I am sure, has the best intentions, and does not aim at railroading anyone. The trouble is that there are no safeguards, no checks and balances, provided for with the military tribunals he has ordered. And so there will always be questions of whether a given defendant was railroaded.
Consider the debate over the death penalty: the people on death row had jury trials, and there are still innocent men who have been released from prison after mistakes were discovered.
Will there be no innocent men accidentally convicted by the new American Star Chamber? How will we know?
The military tribunals are more than a bad idea. They are contrary to the letter and the spirit of the Constitution. They are contrary to the spirit of our Revolution, our war of independence.
President Bush will decide who goes to the Star Chamber. The Secretary of Defense, who works for the President, will have some input. And then the Star Chamber will decide on the guilt or innocence of the accused. It is not clear who will sit on the tribunal, or how many members there will be.
Is it even known whether the accused will be innocent until proven guilty? If the "principles of law" and the rules of evidence are out the window, that would seem to include such a fundamental tenet of American criminal law as that one is "innocent until proven guilty."
I understand that emotions are running high these days. Americans, although some may not realize or admit it, are not over the shock of September 11. I am not. Still, what is needed is clear thinking in these times of crisis.
Assume for the sake of argument that the quick-fix crowd is correct, and that the federal government does not have to follow due process in punishing (and possibly executing) citizens of any nation on earth except the United States of America. If so, then the federal government has the power to simply kill foreigners on sight, or to enslave them, or to perform medical experiments on them against their will. Since the law does not apply to such pseudo-persons, what is it that can prevent such actions? Nothing.
Clearly, this is an absurd legal position. Foreign citizens must enjoy the protection of the laws.
As Friedrich Hayek wrote in Law, Legislation and Liberty, "law" means the rules of just conduct, and includes the idea that the government may only use force on people in accordance with the rules of just conduct, i.e., with the rules that define and protect the individual domain of every one of us. Thus, to claim that foreign citizens are not protected by the law makes a mockery of the very concept of law.
Arrests, searches, and seizures without warrants signed by judges are the very definition of despotism, tyranny, and totalitarian power. If you can be jailed and shot whenever a bureaucrat decides you should be jailed and shot, you have no liberty. You are a slave, living at the whim of your master. This is how the Soviets did things under Stalin. Is that what America has come to, after "winning" the Cold War?
The fact that the United States would have no allies, no foreign trade and no foreign tourists — for why would they come here, when they would enjoy less status than goats — is not relevant. Even if every other nation on earth were to accept the new American Star Chamber, this would not settle its legality as a matter of U.S. law. It would only show, possibly, that the other nations were cowards, and that the total disregard of due process was accepted as a norm of international law (this is known as the McDougal hypothesis in international law).
It cannot be seriously claimed that foreign citizens are equivalent to trash, to be disposed of as insignificant and smelly, whenever we see fit.
And this is reflected in the law. The Bill of Rights guarantees something called "due process" of law. When the government wants to kill you, it must follow the proper procedures, "due process," i.e., the process that is due to you as a human being with natural rights (for that is what the rights described in the Declaration of Independence, in fact, are). If the government does not follow due process, then it cannot act. The government, recall, has only those powers given to it in the Constitution. No power, not allowed to act. This is what it means for a government action to be unconstitutional. It means that the government cannot exceed the scope of its delegated authority.
Think of it like this: you tell a man to mow your grass. He cuts down all your trees instead. He has exceeded his authority. He had no permission to cut down trees.
Or to put it another way: my child has friends staying over at my house. Can I kill them because they're not my kids? The answer is no: this is absurd.
Also, if the government can execute foreigners, can people simply murder foreigners? After all, the government has thrown out the law, and so has no special claim on being authorized to kill such persons. It is merely killing in disregard of the law. If the law doesn't apply, then the law doesn't apply, and it would seem that private killing would be on equal footing with government killing. Which is of course absurd, absent considerations of self-defense.
And so a final question: you travel to Northern Ireland for vacation. The British Army decides, mistakenly, that you look like a suspected IRA terrorists. Perhaps you were strolling through the wrong neighborhood when a bomb went off, as in In the Name of the Father (great movie). You are arrested, imprisoned, and sentenced to die by a British Army tribunal. Only Tony Blair or the Minister of Defense may let you go. But the Army is quite sure they've got the right man, and you, well, you're out of luck.
This would not be acceptable to Americans, even if the British justified such actions on the grounds that you're a "non-British citizen" and that they are waging a "war on terrorism." It is clear that such British treatment of an American would be despotic, an abuse of the very ideas of law, liberty, and the rights of Englishmen.
It is no different when the United States abuses the very ideas of law, liberty, and the rights of Englishmen (the roots of the rights of Americans).
We cannot shred the Bill of Rights while at the same time claiming that we are fighting to "protect freedom." Without the Bill of Rights, we have no freedom. Our forefathers fought a war to live under the Bill of Rights. War is not a justification for throwing away our rights, or for placing absurd restrictions on them.
November 19, 2001
Mr. Dieteman [send him mail] is an attorney in Erie, Pennsylvania, and a PhD candidate in philosophy at The Catholic University of America.
© 2001 David Dieteman