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Will Freedom Endure?     By Karen MacNutt

Joe was stopped on his way home from work by two men flashing state security badges.

"We want to question you," they said pushing him into the car.

"What have I done?," he asked.

"You know what you have done. We do not have to tell you," was the reply.

When they arrived at headquarters, Joe asked to call his lawyer but he was denied. "Let me call my family so they will not worry." Again the answer was no. Three days later, he was still being held without charges being brought against him. He demanded to be brought before a court. He wanted to know what he was being accused of.

"How can I convince you I am innocent if you will not tell me what you think I have done?" Again the answer was no. "Look," said Joe, "You have no right to do this. I've been in jail seven days and I have done nothing. When I get out, I'm going to hire a lawyer and sue you all."

The agents laughed. "With what you terrorist scum, we've seize all your bank accounts."

"Why do you say I'm a terrorist? I've done nothing. Where is your proof?"

"We have evidence," said the agents. "We do not have to tell you what it is. You have been denounced. If you want things to go easy on you, you will tell us who your accomplices are."

"But I have no accomplices," pleaded Joe.

"Think about your future. Your non-cooperation will make things harder on you. Surly there is someone you could denounce," said the agent. "If you co-operate with us now, you might still be able to get your job back. You know, you were fired when you stopped showing up for work without explanation. Then there is your mother. She never got her citizenship. We could have her deported..."

Joe is fictional, but his plight is real. After the September 11th terrorist attacks, the Justice Department took over a thousand people into custody. They wanted to question up to five thousand more even though they admitted there was no reason to believe any of those 5,000 were engaged in any wrong doing. The Justice Department would not disclose the names of those they had detained. The vast majority of the detainees had nothing to do with the terrorist attacks.

Jail is not a nice place to be. Not for an hour, not for a day, not for a week. People like Joe have families who worry about them. They may be single parents with children or have elderly parents who depend upon them. They have jobs that require their presents. They have rent or mortgages or car payments or support payments that must be met. If they do not work, or if they lose their job because they do not show up for work, they suffer. No one will compensate them for their time or financial loss due to their being held by the government. There is no way to erase the stigma of their detention. If you are in the United States on a work visa, your being fired could cause a revocation of your visa.

Prior to the terrorist attacks, if you were arrested, you were given one phone call to let friends or family know what was going on. You could have your lawyer present while you were being questioned. This is very important because often what one person says is not what another hears. Police tend to hear what they want rather than what is said. Police are suppose to tell you why you are being held and bring you before a magistrate as soon as possible, no later than 48 hours from your arrest. If the magistrate is satisfied that there is probable cause to believe you committed a crime and there was cause to think you would flee or you were a danger to society, the magistrate could order you held. If not, he could order you released. In any event, this began the process by which a court would determine your guilt or innocence.

All this is done to protect the innocent. If you have committed no offense, you should not have your freedom forfeited for even a day. Those picked up for "questioning" after September 11th, were not accounted for to a magistrate. At least one man died of a heart attack while being held.

There is a public presumption that this is ok because these people must be guilty of . . . well, of something. In a free country, the legal presumption is that of innocence. Law enforcement is not always right. There have been a number of scandals involving police and FBI agents who manufactured evidence or who framed innocent people. Although these abuses are the exception rather than the rule, they do occur and highlight why there must be restraints on the power of law enforcement.

We, in the United States, are the recipients of a legal system a thousand years in the making. Refined by war and revolution, it began in a time when a king's word was law. To speak ill of the king was treason. You could be arrested and held indefinitely without charge or trial. Secret evidence was often used, especially in political trials. Great injustice was done.

In the year 1215 AD King John of England was forced to sign an agreement with his lords called the Magna Carta. One of the rights King John agreed to was that "no freeman shall be taken or imprisoned or disseised from his freehold, or liberties or immunities nor outlawed nor exiled nor in any manner destroyed, nor will we come upon him or send against him, except by legal judgement of his peers or the law of the land." Accusations against someone had to be under oath. When the lords forced King John to sign Magna Carta, they believed they were securing the ancient rights of Englishmen.

When the England's North American Colonies revolted some five hundred and fifty years later, they based their right to self determination on the concept of Natural Law. That concept has never been better stated than in our Declaration of Independence.

"We hold these truths to be self evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these, are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed;...."

Human rights are not given to us by governments, but are the gift of God. To say that some people should not be given the judicial protection granted to citizens is to deny the source of our right to liberty. It cheapens and jeopardize everyone's freedom by allowing the claim that government has the legal authority void rights that God has given.

Clearly there are some privileges of citizenship, such as voting, that non-citizens should not have. However, those things that touch on basic human rights should be guaranteed to all. But, you say, this is to protect us from terrorists! That begs the question. Who is to say who is a terrorist? Who is to say who is a citizen? The purpose of a trial is to find facts in a fair and impartial manner. The rules of court have been developed for that purpose. To deny one a fair trial is to say that there is no interest in finding truth. Without a search for truth, there is no justice.

The very bed rock of our freedom is under assault, not from foreign terrorists but from well meaning officials at home. America was born in the blood of revolution. It seized a continent by raw determination. It met natural disasters of all kinds. It was tried in the gore of civil war. It over came the curse of slavery. It absorbed the discontent of the labor and civil rights movements. It met and defeated anarchists, Fascists and Communists. We have seen much worse than what we are facing today. From time to time we strayed from our great legal principles. In moments of weakness the Supreme Court ruled that Blacks were not people and Americans of Japanese ancestry could be placed in concentration camps. These decisions are national embarrassments. We should not look to them as examples to govern our present course. Our traditional system of law and justice is able to deal with whatever threats lie ahead of us.

Our jury trial system was born during the political intrigues and civil wars of England. It was not born to help common criminals. It was born to protect people from politically motivated prosecutions.

Civilization is only a thin veneer over barbarism. In this terrorist attack, we are fighting a Charlie Manson type of leader supported by guilt ridden Patty Hurst type rich kids leading a bunch of ignorant goat herders. Their act of terrorism was amazingly low tech. It was insultingly low tech. It depended upon their belief that Americans would not fight or resist the terrorist who took control of aircraft. As maddening as their act might be, it is not an excuse to revert to barbarism.

I never imagined that a credible American would advocate the use of torture. Yet, it has been suggested that our law enforcement should be able to use a little torture in questioning suspects.

First, torture is against the Constitution. If we bar cruel and unusual punishments, how can we justify cruelty against those who have not even been convicted? That leads to a bigger problem. The reason you torture a suspect is that you assume he is guilty and that he has something to say. That violates the presumption of innocence. What if he is not guilty? How will you compensate the person who was innocent and tortured? How much is an hour of pain worth? How much money would you accept to be wrongfully tortured? The wrongfulness of the practice is fully stated by the Constitutional provision that no person can be forced to testify against themselves. These things are in the Constitution because they were common government practices in Europe at the time of our revolution and we, for good reason, rejected them.

For the same reasons torture is against the Geneva Conventions. Torture is a war crime as well as an assault under domestic law.

Torture is unreliable. People will say or do anything to avoid unpleasantness. There is a great incentive to give false information against someone you do not know or do not like.

If we are going to allow torture, how much torture should we allow? Do we force subjects to listen to loud pop music until they can stand it no longer? Do we force them to go without sleep? Do we refuse them water or food? Can we threaten to take their children from them? Can we use pins under their finger nails or hot coals or electric cattle prods?

Los Angeles Times: "deSosa is 85 but he remembers his tormentor with photographic clarity. . . Four times, he says, a man known as "El Enfermero" - The Nurse - attached electrodes to deSoso's temples, and 10 times to his genitals. "You feel like an explosion in your head and you lose consciousness," deSosa recalled. When he came to, the Havana newspaper publisher would usually be lying in his own excrement. . . . " 18 Nov 2001

Is this what we want to become? What if the suspect dies under questioning? What if the suspects says nothing because he or she is totally innocent and knows nothing? How much torture can be applied before the person claiming their innocence will be believed?

If we could solve all the problems of the world by torturing one innocent child to death, should we do it? What about 500 innocents? Or 5,000 innocents? Or six million innocents? The promise of good coming from bad is seductive. The ends do not justify the means. Bad never produces good. We should not follow the systems used by countries that have been involved in fratricidal war for generations. Even one innocent indifferently wronged is too many. That is what distinguishes us from a Charlie Manson or a Bin Laden or a Hitler. Our system is built on individual responsibility and a presumption of innocence.

The test of our resolve to defend freedom is not measured by the weight of bombs we can drop on foreign soil. It is a measured by our commitment to the institutions that define freedom. It is easy to support those institutions in times of peace. The real challenge is our determination to stand by them in times of crisis. If freedom is to endure, we must not let our fears destroy that very thing we wish to defend.


This article was reprinted from Women&Guns, Copyright © Karen MacNutt