America's Post-9/11 Turn Toward Dictatorship

by Jacob G. Hornberger
May. 17, 2011

Among the most potent weapons employed by the Syrian dictatorship have been the arbitrary arrest, confinement, and torture of people without trial. Syrian police and military are simply arresting people without cause, jailing them indefinitely without trial, and torturing them.

No formal charges are necessary. No trial is necessary. The victim simply sits in jail and is tortured until the government decides to let him go, which could be never.

That was the type of thing that our American ancestors were concerned about when they were asked to call the federal government into existence through approval of the Constitution. That’s why the privilege of habeas corpus was included in the Constitution and why the Fourth, Fifth, Sixth, and Eighth Amendments were included in the Bill of Rights.

For more than 200 years, those particular constitutional provisions precluded federal officials from doing what the Syrian dictatorship is doing.

In order to arrest a person, the U.S. government needs evidence establishing “probable cause” that a person has committed a crime. No probable cause, no arrest.

Once a person is taken into custody, he is taken before a federal magistrate for the purpose of setting bail. The purpose of bail is to permit a person accused of a crime to remain free until the trial by posting cash or a surety bond that he will forfeit if he fails to appear.

The person has a right to a preliminary hearing before a federal magistrate, at which the government must establish probable cause that the person has, in fact, committed a crime. If sufficient evidence is not produced, the judge orders the person released from custody.

Even if probable cause is established at the preliminary hearing, to continue holding the person the government must secure a formal charge against him from a grand jury, a formal judicial body consisting of citizens appointed by a federal judge. That formal charge is known as an indictment; it cites the specific federal law that has been violated (e.g., terrorism). If the grand jury fails to issue an indictment, the government is required to release the person from custody.

If an indictment is issued, the person is entitled to a trial, either by jury, if he chooses a jury, or with the judge determining guilt or innocence.

At the trial, the person is presumed innocent. The burden is on the government to prove the person’s guilt with sufficient competent evidence that convinces the jury (or judge) beyond a reasonable doubt that the person is, in fact, guilty.

During the trial, the person has the right to cross-examine the government’s witnesses, which is usually done through his lawyer. Hearsay statements — that is, statements made outside the courtroom — are not permitted except under certain exceptional circumstances. The person cannot be forced to testify but is free to do so. He is also free to call witnesses on his behalf.

If the person is found not guilty, the government is required to release him immediately.

That was the American system of justice for more than 200 years. It came to an end on September 11, 2001, at least with respect to federal terrorism cases. During that so-called emergency, President Bush unilaterally made terrorism either a crime or an act of war, at the option of federal officials. That meant that people could now be arbitrarily picked up and treated as “enemy combatants” in the “war on terrorism” and thereby be denied the rights and guarantees provided criminal defendants in federal terrorism cases.

If the government opted for the criminal-defendant route, the accused would be accorded all the rights and guarantees of the Constitution and the Bill of Rights. However, if the government opted for the enemy-combatant route, the accused would be accorded none of them. In the latter case, federal officials wield the same powers that are now being exercised by the Syrian dictatorship.

The protection of the accused from arbitrary arrest, confinement, and torture that is guaranteed by the U.S. Constitution and the Bill of Rights is undoubtedly one of the greatest achievements in the history of freedom and civilization.

Unfortunately, that tremendous achievement came to an end on 9/11, when U.S. officials used the opportunity to seize the same emergency powers that the Syrian dictatorship is now exercising. Americans must now live with the hope that U.S. officials exercise their post-9/11 dictatorial powers more benevolently than the Syrian tyrants are.
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Jacob Hornberger is founder and president of The Future of Freedom Foundation.