Forgetting the Fundamentals

March 24, 2002

by John F. Schmidt

In our zeal to find and punish the perpetrators of the awful terrorist acts of September 11, 2001 we must be careful to avoid falling into the trap of surrendering the heart and soul of our liberties.

A number of disturbing trends have emerged since 9-11 that should not be allowed to continue unchecked. First, we saw the imprisonment (or detention without bail) of hundreds of individuals that were suspected of being connected with terrorist organizations, or having knowledge of them. That violates several provisions of our Bill of Rights, but in the danger of the moment perhaps it was justified. Now, after so much time has elapsed, the authorities better have solid evidence for detaining anyone.

Second, under the Patriot Act, signed into law in the days following the terrorist attack, the government is permitted to use secret evidence in prosecuting individuals or organizations that may have terrorist connections. The U.S. Justice Department recently revealed that it plans to use such evidence to justify the financial sanctions it imposed against a Chicago-based Muslim charity thought to have ties to Hamas, a terrorist organization in Palestine. Global Relief Foundation is fighting back in Chicago Federal court, alleging a violation of their constitutional rights.

The issue here is more than simply a question of whether a Muslim-based charity is actually a conduit for funds to terrorist groups in Palestine. That may well be a fact that will come out of some future investigation. And possibly the Justice department’s prompt action stopped funds from flowing to terrorists. But the end cannot justify the means.

The right of an accused person to confront his accusers is not just a feature of our U.S. Constitution, but is also based on ancient precepts. To allow the erosion of this protection of our fundamental liberties could constitute a greater blow to American freedom than the terrorist’s attack itself.

The English Magna Carta provided that: “{38} No bailiff shall in future put anyone to trial upon his own bare word, without reliable witnesses produced for this purpose.” While there was no direct mention of a right of the accused to confront those witnesses, the Magna Carta recognized that it was basically dangerous to empower the legal authorities to try a person with no evidence but the government’s word. The accused must have had the right to challenge the reliability of witnesses - and their testimony - or the word ‘reliable’ would have had no application.

The U.S. Constitution states that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, … and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” That is pretty solid protection against abuse of power by the government.

It seems that in our rush to bag some bad guys, and make sure that National Security is not compromised, we have skirted almost every provision of the Sixth Amendment.

Granted, the accused are Muslim organizations that may actually have engaged at least in inflammatory rhetoric on behalf of some terrorist organizations. When it comes to fairness and even-handedness, many Muslim groups - even in the U.S. - have demonstrated very little restraint in their denunciation of Israel, or the U.S. But for all that, they are entitled to a fair trial based on the merits of the charges, and should be given a chance to rebut the evidence and witnesses.

Likewise, there can be no doubt that we are in ‘troublesome times,’ which arguably call for extraordinary measures. Such was the case immediately after the Japanese attack on Pearl Harbor. Thousands of Japanese Americans were gathered up and herded into internment camps. It was a bad time later repudiated by our government. But considering the unknown dangers of invasion and sabotage that existed at the time, the actions of the authorities were at least to some extent justified. Abraham Lincoln, just after taking his oath of office, suspended the right of habeas corpus, and virtually arrested the Maryland State Legislature that was debating secession. Lincoln rightly judged that had all the legal niceties been observed, he may well have guaranteed that the Constitution whose provisions he had just sworn to uphold would have been immediately destroyed by letting the seat of the Federal Union fall into hostile hands. Lincoln had to perform a bit of legal triage just as he took office.

It would be insane to argue that we must be so bound by legalism that we would put the life of our nation and people at real risk. So we don’t want to hyperventilate over every necessity in a time of National Emergency.

But it does seem rather ironic that the act under which the Justice Department is claiming authority to use secret evidence is called “the Patriot Act.” We ought to be a bit careful of labels like that. Not only is the road to Hell paved with good intentions, but also the road to serfdom will most certainly be billed as the Patriotic Path. If we ever do lose our liberty in America, it will arrive billing itself as the protector of the republic, not what it actually is.

The Patriot Act is probably not as bad as all that, but it cracks the lid open on Pandora’s box. It is noteworthy that it was passed with very little comment from the conservative side, who would have been apoplectic if it had been proposed under a liberal administration like Clinton’s or Gore’s. Makes you wonder.

But more fundamentally, America’s patriotism has always been characterized by a higher call than just “My country right or wrong.” Our patriotism is aptly expressed in the Declaration of Independence “all men are created equal and are endowed by their Creator with certain inalienable rights.” That document merely affirmed what has been true from the Creation: human rights come only from God. There is no other logically defensible source. Our national conscience has always been guided by reverence for God - and therefore necessarily - respect for men.

Our government is in the wrong when it tramples the rights of anyone - American, Muslim or whomever. Even if we disagree with their theology, we can’t deny the claims of their humanity. And that obligation is placed on us because of our superior theology. If we keep that truth firmly in mind we won’t stray too far from right.

Don’t think that I have any sympathy for the Muslim persecutors of Israel, or the bin Ladenites. Religious Muslims, when they have the upper hand in government, have amply demonstrated that they don’t respect the rights of anyone but Muslims. Demonstration of this politically incorrect statement is tragically easy.

It would be a tragedy if Americans who, of all people, ought to understand the real source of human rights, should deny that truth in the face of the whole world, imitating those whose only interest is self-interest.

It is not just self-serving sentiment to state that we as Americans have a higher calling - not just to mankind, but also to God. It’s the truth we started with. Let’s not forget it.

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John F. Schmidt has written numerous articles over the last decade. Politically, he is an Alan Keyes-type Republican. Along with his wife, he has organized voter drives in Pennsylvania, and been active politically since the 1990 elections. His livelihood, until recently, was spent in automation engineering for a large global equipment manufacturing company, specializing in coal mining. WANB in Waynesburg, Pennsylvania hosted Schmidt's weekly talk radio program "Issues and Answers." His writing is intended to relate the headlines of today to the foundation of eternal truth - the Scriptures. He currently resides in Palm Beach County, Florida. Visit his website at: Inalienable-Rights.org

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