-Caveat Lector-
http://www.fff.org/comment/com0201h.asp
The Bill of Rights At Work
by Jacob G. Hornberger, January 2002
The unfolding developments in the John Walker Lindh case and the
Guantanamo "detainees" situation reflect why Americans should be so
grateful to our early ancestors for demanding the first ten
amendments to the Constitution as a condition of adopting the
Constitution. Recall that there was tremendous resistance among the
several states to the adoption of the Constitution because of the
fear of calling into existence a federal government. One of the
objections people raised was that there were no express guarantees
that people who were accused of crimes would be accorded the
traditional notions of due process of law, a legal concept that
stretched all the way back to Magna Carta. The proponents of the
Constitution responded that no such express guarantees were included
in the original Constitution because Americans who became public
officials, either through election or appointment, would always be
devoted to the principles of due process of law and therefore it was
unnecessary to expressly required them to apply such principles in
criminal cases. Our ancestors's response was: "Oh, no -- even a U.S.
government will end up attracting Americans who do not believe in due
process of law as a matter of principle, especially for criminal
suspects who they are convinced are guilty." Fortunately, the
proponents of express guarantees in the Bill of Rights won out, for
in retrospect it is now clear that they were the ones who were right.
The reason that John Walker Lindh has been brought back to the United
States to face criminal charges, has been formally notified of the
charges against him (through grand-jury indictment), has defense
attorneys, and will be accorded a jury trial with full rights of
cross- examination is not that federal officials believe in these
concepts as a matter of principle but rather because they feel that
the Constitution (and specifically the Bill of Rights) requires them
to do so--and that a federal judge will slap them down if they don't.
The reason that the Afghan War "detainees" are being transported to
Cuba, rather than the United States, is to avoid having to provide
them either prisoner-of-war status under the Geneva Convention or the
traditional guarantees of due process of law if they are treated as
criminal suspects. Ironically, communist dictator Fidel Castro, who
rules over the rest of Cuba, approves of the U.S. government's
conduct, for he has the exact same policy with respect to criminal
suspects under his jurisdiction: people are presumed guilty, there
are no grand jury indictments or other formal notification of
charges, no independent defense attorneys, no jury trials, and
indeterminate jail sentences. Thus, regardless of the outcome of the
Lindh case -- guilty or not guilty -- Americans today ought to be
counting their blessings for the courage of those who demanded that
the Constitution be amended with the Bill of Rights immediately after
its adoption.
Mr. Hornberger is founder and president of The Future of Freedom Foundation in
Fairfax, Va.
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