It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [115]
This line of argumentation should however sound shockingly familiar: It is the ideological justification for the Third Reich. It also conflicts with moral universalism, the philosophy that all humans are subject to the same moral standards. Thus, if it is wrong for a group of people to be aggressors against us, it is wrong for us to be aggressors against them, and similarly, if it is right for us to receive certain procedural protections, then it is also right for all people to receive those protections. The source of moral universalism is the Natural Law: Because we are endowed with inalienable rights by virtue of being human, then all humans are endowed with those rights, and must be treated equally, irrespective of the place of their birth or what the government says they have done. The modern-day empire which we have fashioned, meddling as it does in the affairs of foreign countries, violates moral universalism in every way possible and predictably leaves us and our children at home with a bloated, broken system.6
Millennia of history have taught us that tyranny is the inevitable consequence of assigning justice to the discretion of government officials. To say that alleged terrorists shouldn’t enjoy the same procedural rights as Americans is to place our full and abiding trust in the government’s ability to determine who is guilty and who is not. Anyone who espouses the prudence of such a policy should know the story of Mohammed Akhtiar, an Afghan citizen who was mistaken for a terrorist and detained in Guantanamo Bay for three years. Ironically, he was maliciously abused because he supported America and rejected the teachings of hatred; his tormentors were not the U.S. military, but his fellow inmates.
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But more fundamentally, how can we allow the clear intent of the Founders and the struggles of Zenger to be cast aside by the simple assertion that “we are fighting an unconventional war”? Aren’t such claims of public necessity always the excuse? Why is now any different? A quick examination of history will show that these same words have been spoken in nearly identical language, by nearly every government for hundreds of years. Although the war might be unconventional, the claim that it justifies suppression of procedural rights is anything but.
Some may contend, however, that they are not complicit in suppressing due process because they trust the government, but because they have a “gut feeling” that the suspect is in fact guilty. But if we are capable of intuiting guilt without the rigors of the judicial system, then why would we ever need procedural rules? It is precisely because human intuition and judgment have proven over time to be insufficient that these rules of procedure were devised.
Moreover, if we genuinely prefer that innocents remain in prison (and believe me, they do) than actual terrorists go free, then the issue becomes one of sacrificing liberty to security. To do so in the context of procedural due process is even more outrageous than in other contexts: You are giving up someone else’s liberty for your own security. How else shall we define tyranny of the majority? It is because of the manifest injustice of sacrificing another’s liberty for greater security that William Blackstone believed it “better that ten guilty persons escape than that one innocent suffer.” And even if we as a people are still prepared to deprive others of their rights and impugn the role of justice in our society, we must ask: How long will it be until it is you or I who is sacrificed in an effort to keep our neighbors more secure?
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Conclusion
Robert Bolt’s question to us in A Man for All Seasons, as the individuals who will ultimately shape government policy: