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The Abandonment of the Rule of Law

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Ahmed Khalfan Ghailana, a citizen of Tanzania, is learning first-hand what it’s like to be the victim of the U.S. government’s post-9/11 regime of the “rule of men,” as compared to the “rule of law.”

Some people believe, incorrectly, that the term “rule of law” means that people are expected to obey the law. What it actually means is that people should have to answer to a well-defined law for their conduct rather than the arbitrary whims of government officials.

Thus, the “rule of law” is contrary to what is often called “the rule of men.”

Let me provide an example. Suppose government officials had the power to define anything they wanted as a crime on the spur of the moment. They see a person charging $10 for a gallon of milk. Immediately, they order his arrest, declaring that such a price constitutes “price-gouging.”

The defendant is hauled into court to answer to the charges. He says to the judge, “But there wasn’t any law on the books that prohibited me from selling milk at $10 a gallon. How can I be guilty of something that isn’t against the law?”

The judge responds: “But it is against the law. It became illegal at the moment the government official declared it to be illegal. In our society, each government official can decide what is legal or illegal without having to enact a law in advance proscribing such conduct.”

That type of system would be described as one based on “the rule of men.” The reason is that how people are treated for criminal offenses is subject to the arbitrary whims of government officials.

Now, suppose the legislature enacts a law that says, “Anyone who sells milk for $10 a gallon shall be guilty of price-gouging.” In this case, we have the “rule of law” because everyone knows in advance what the criminal offense is. If a person charges $9 for the milk, the government lacks the power to charge him with a crime, even if some government official thinks that price is outrageously high. Under the rule of law, it doesn’t matter what the government official thinks because all the milk seller has to do is cite the duly enacted law and show that his conduct hasn’t violated it.

That doesn’t necessarily mean, of course, that a society based on the rule of law is a free society. Obviously, if the law punishes people for charging a certain price for their milk, their economic liberty is violated. It is simply to say that the rule of law is a necessary, but not sufficient, prerequisite to achieving a free society.

What does all this have to do with Ahmed Khalfan Ghailana? Ten years ago, he was indicted by a federal grand jury for allegedly participating in the 1998 terrorist attack on the U.S. Embassy in Tanzania. Four other defendants were convicted of the charges in federal court and are now serving life sentences. Ghailana was a fugitive at the time of the trial.

In 2004 Ghailana was taken into custody by the CIA, which transferred him to one of its secret prisons instead of returning him to the U.S. for trial. He later was transferred to the Pentagon’s prison camp in Guantanamo Bay, Cuba, where he is now awaiting trial before a military tribunal.

Military tribunal? Why isn’t he instead being sent to the jurisdiction of the federal district courts for trial, especially given that he is still under criminal indictment there?

The answer lies in the fact that after 9/11, the U.S. government abandoned the “rule of law” in terrorism cases and instead adopted a regime based on the “rule of men.” From that point on, the president and the Pentagon had the authority to decide whether a terrorism suspect would be entitled to go down the federal-court route or the military-tribunal route.

The determination as to which route is decided upon is totally arbitrary and ad hoc. Some terrorist suspects receive the federal court route, such as Zacharias Moussaoui, Jose Padilla, and others. Other terrorist suspects receive the military-tribunal route. It all depends on the whims of government officials. There is no duly enacted, established law that requires every terrorist suspect to be treated to the same process.

Of course, the ones who receive the military-tribunal route get the short end of the stick. As most everyone except the Pentagon recognizes, the military-tribunal route is nothing more than a political kangaroo proceeding in which the rules of procedure are made up as they go along and in which the outcome will be preordained or even ordered. It is also a process by which officials will even be able to use evidence acquired by torture and other illicit means to secure convictions, unlike the situation in federal courts.

The point is obviously of importance to those who are the accused. But the point is also important to Americans, for by adopting a regime based on the “rule of men” in terrorism cases, the United States has abandoned one of the most important and essential prerequisites to a free society — the “rule of law.”

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Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.