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A Dual System of Justice Violates the Rule of Law

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Conservatives are once again on the rampage, this time with respect to the alleged Detroit bomber. They’re saying that he should be treated as an enemy combatant rather than prosecuted as a criminal defendant. Ironically, as they criticize President Obama’s decision to treat the alleged bomber as a criminal defendant, they block out their minds that conservative icons George W. Bush and Dick Cheney treated Zacharias Moussaoui, Jose Padilla, John Walker Lindh, and many other accused terrorists as criminal defendants.

More ironic, however, is the fact that conservatives purport to be ardent and enthusiastic defenders of the concept known as the “rule of law.” Go to any conservative conference in the country. Listen to the speeches. You will inevitably hear, at least once, some conservative expressing devotion to “the rule of law.”

Why is that ironic? Because it would be difficult to find a better example of a violation of the rule of law than the dual system of justice for prosecuting suspected terrorists than that which was adopted by the Bush administration and now embraced by the Obama administration.

What is meant by the term “the rule of law”? Some people think that it means that people should obey the law. Not so. What it means is that people in a society should have to answer to a well-defined law rather than to the arbitrary, ad hoc edicts of government officials.

Suppose, for example, there is a natural disaster and ice producers begin charging people $100 for a bag of ice, when the going rate before the disaster was $10 a bag. Local officials fine the seller for price-gouging, notwithstanding the fact that there was no law prohibiting him from selling at whatever price he wanted, natural disaster or not.

That would constitute a violation of the rule of law. Why? The man is having to answer to an arbitrary, ad hoc decision of a government official, rather than to a well-defined law, for his conduct.

Now, suppose the law states: “No person shall charge more for his product during a natural disaster than he was charging before the disaster.”

That would comply with the rule of law because now people can look to the law for guidance on what is legal and illegal. They don’t have to worry about whether they’re going to be fined or punished for engaging in conduct that doesn’t violate the law.

It should be clear that while the rule of law is an essential prerequisite for a free society, it is not a sufficient prerequisite. For example, in our natural disaster example, a price-control law would meet the standard of the rule of law but would nonetheless violate the principles of economic liberty.

Everyone concedes that terrorism is a federal criminal offense. It’s listed on the federal statute books as a crime. The government indicts and prosecutes people for terrorism. They’re tried in federal district court. When they’re convicted, a federal judge sends them to jail.

The problem is that after 9/11, the government set up a competing judicial system for handling people it accused of terrorism. This system was established by the Pentagon and was designed to compete against the federal-court system.

The difference between these two competing judicial systems is white and black.

The federal-court system — the one that the Constitution set up for trying accused criminals — has all the protections of the Bill of Rights. Its purpose is to determine whether there is sufficient evidence to convict a person of terrorism and, if so, to punish him for his crime. In the event of an acquittal, this system requires the person to be released from custody, no matter how convinced people are that he really did commit the crime.

The Pentagon’s system is the opposite. Its principles involve such things as a presumption of guilt, torture of the accused, kangaroo military tribunals, indefinite incarceration, no protection against self-incrimination, secret evidence, and the use of hearsay. The Pentagon’s system is designed for one purpose: punishment of whoever the government accuses of terrorism.

Does the person accused of terrorism get to choose which system he’ll be prosecuted under? No. That life-changing decision is left entirely to the government. And it is entirely discretionary and arbitrary. How can such a dual system, based entirely on the discretionary, arbitrary, ad hoc decisions of government officials be reconciled with the principle known as the rule of law? It can’t be.

To put the matter more starkly, suppose, for example, that there were two people on the Detroit flight working in concert to blow up the plane. Under the current post-9/11 system, U.S. officials could treat one of them as a federal-court defendant and the other as a Pentagon defendant, notwithstanding the fact that they are accused of the exact same crime and notwithstanding the fact that the two processes, and thus the results, are so different.

With the Constitution, the Framers established the finest judicial system in history, one that is subject to the Bill of Rights, whose principles stretch back through centuries of American and English history. The competing system established by the Pentagon after 9/11 is a travesty and a shame. Not only does it violate the rule of law, it also violates fundamental principles of justice and liberty and centuries of English and American jurisprudence.

This post was written by:

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.