Seizure, Detention, Torture, and Assassination

Seizure, Detention, Torture, and Assassination
by Jacob G. Hornberger
In today’s blog, I thought I would share with you a deeply insightful quote by Alan Barth (1906-1979), who served on the Washington Post’s editorial board for 30 years. The quote is from his book The Rights of Free Men, which was published posthumously in 1984.
As you read the quote, keep in mind that we now live in a country in which the government — specifically the president and his military — now wields the authority to barge down people’s door to seize them, cart them away to a concentration camp or military dungeon for indefinite detention, torture them, or even execute them.
We also now live in a country in which the government — specifically the president and the CIA — now wields the authority to assassinate people, including Americans.
What are the judicial prerequisites for the exercise of such powers? None. All that is needed is the president’s determination that the target of the arrest is a terrorist.
Even in habeas corpus proceedings (which obviously don’t apply when the person has been assassinated), the courts defer to the determination of the president, the CIA, and the military because the courts have bought into the government’s “national security” and “we’re at war” rationales for the wielding of such omnipotent, “emergency” powers.
How did the president, the Pentagon, and the CIA acquire these extraordinary powers, powers that enable them to avoid the due process guarantees in the Bill of Rights? No, not by constitutional amendment or even by congressional enactment. After the 9/11 attacks, the president simply decreed that he, the Pentagon, and the CIA now wielded the emergency power to treat the federal crime of terrorism as either a crime or an illegal act of war, at their option.
Barth reminds us that it was this type of direct power — the arbitrary power to take people into custody without any judicial process — that formed the basis for Magna Carta and other battles for civil liberty over the ages.
Before you read the main quote, consider this preliminary quote by Barth, which is from his book The Loyalty of Free Men. Although he refers to communism, his point applies equally well to terrorism: “Nothing that the agents of Communism have done or can do to this country is so dangerous to the United States as what they have induced us to do to ourselves.”

Those who so glibly dismiss as “mere legal technicalities” the procedural guarantees of the Constitution limiting law-enforcement activities forget that nothing is more basic to civil liberty than freedom from arbitrary arrest and imprisonment by policemen who are masters, not servants, of the law. The most characteristic symbol of the police state is the ominous rap on the door at night. Freedom from the fear of that rap is the basic condition for the exercise of every other form of freedom. “The history of liberty,” Mr Justice Frankfurter once observed, “is the history of the observances of procedural safeguards.” For as long as men have sought to be free, arbitrary arrest has been a mark and measure of despotism. In every land and time, men have protested and fought against it. It has been a principal cause of every major uprising against established government. It was one of the grievances of the English barons against King John in 1215 and prompted their insistence in Magna Carta that “no free man shall be taken or imprisoned ... except by the legal judgement of his peers or by the law of the land.” Bitter resentment against capricious arrest and incarceration was one of the prime causes of the French Revolution. And so the Declaration of the Rights of Man and of the Citizen stipulated that “No man should be accused, arrested, or held in confinement except in cases determined by the law, and according to the forms which it has prescribed.” Arbitrary arrest and arbitrary searches conducted under the infamous writs of assistance and general warrants were among the bitterest grievances against George III recited in the American Declaration of Independence. When they established their independence Americans were determined that no government of their own creation should ever engage in these forms of despotism. Accordingly, they imposed heavy restraint upon police activity in the Fourth Amendment to the Constitution.

POSTSCRIPT: Last Saturday in Philadelphia, I gave a speech to a regional conference of the Students for Liberty, a great nationwide organization of students with chapters all over the country. There are few better highs in life than preaching to the choir when the choir is filled with young libertarians with fire in the belly for liberty and free-market economics. Here’s a photograph of the group. (See if you can pick me out from the students!) My talk was on how the welfare state and warfare state combine to form a giant threat to the freedom and well-being of the American people and why it’s necessary to dismantle both of them to restore freedom, prosperity, morality, and harmony to our land.
Jacob Hornberger is founder and president of the Future of Freedom Foundation.