Hornberger's Blog

Hornberger's Blog is a daily libertarian blog written by Jacob G. Hornberger, founder and president of FFF.
Here's the RSS feed or subscribe to our FFF Email Update to receive Hornberger’s Blog daily.

The Conservative Love for Unlimited Government

by

A good example of one of the things that is wrong with conservatives is provided by a conservative named Rich Lowry, who has an article today about the Detroit bomber case on nationalreviewonline.com, one of the premier websites in the conservative movement.

Lowry is upset that the suspect in the Detroit bomb base, Umar Farouk Abdulmutallab, was treated as federal criminal suspect rather than an enemy combatant in the war on terrorism. He points out that when Abdulmutallab was taken into custody, he talked freely to the authorities and provided a significant amount of information … until he was read his Miranda warnings, at which point he clammed up.

Lowry thinks that Abdulmutallab should have been transferred to the U.S. military so that they could have forcibly extracted more information from him with waterboarding, the process that induces the feeling of forced drowning. Citing the case of Jose Padilla, Lowry says that after all pertinent information had been extracted from the man, the military could then have transferred him back to the federal court system to be prosecuted as a criminal defendant,

There are several important points about Lowry’s position, none of which, unfortunately, he addresses.

First of all, why bother with turning the guy over to the military rather than simply letting all federal law-enforcement officers engage in waterboarding and other forms of torture? After all, it is one government, even though it is divided into separate agencies, departments, and bureaucracies. Why not simply let the FBI, DEA, TSA, ICE, ATF, U.S. Customs, and all other federal law-enforcement officers waterboard terrorist suspects too? Why waste time and resources with all the paperwork and changing of prison facilities rather than simply unleashing all the forces of the federal government to forcibly extract information from terrorist suspects?

Second, why limit waterboarding to people accused of terrorism? Why not expand it to all crimes, federal, state, and local? What about suspected murderers, bank robbers, rapists, and drug dealers? When those people are caught in the process of planning or committing their crimes, isn’t it important to identify the other people who might be engaged in a conspiracy to commit the crime? And how else would we find out whether other people are involved without forcing the guy to talk?

Third, what about the presumption of innocence in criminal cases? Lowry obviously feels that it should be discarded, at least when it comes to terrorism cases. After all, surely Lowry wouldn’t favor waterboarding innocent people, would he? When he argues that the Detroit bomb suspect should be turned over to the military for waterboarding, Lowry is obviously assuming the man is guilty.

Yet, ordinarily, that is what a trial is all about — to determine whether a government’s accusation of guilt is meritorious or not. At the trial, the judge instructs the jury that the accused is to be presumed innocent and is to be found not guilty unless the government has satisfied the jury, beyond a reasonable doubt, with competent evidence, that he truly is guilty.

Fourth, while Lowry addresses his argument in a case involving a foreign citizen accused of terrorism, what he conveniently ignores is that the principle he calls for — the pre-trial torture of a person accused of a crime — applies to Americans as well. After all, as U.S. officials have often reminded us, in the so-called war on terrorism, the entire world is a battlefield, including the United States. Indeed, including Detroit! Moreover, American citizens are as fully capable of committing acts of terrorism as foreign citizens. In fact, while Lowry cites the case of Jose Padilla, he forgets to mention that he is an American.

Do you see the problem with conservatives? While purporting to stand for freedom and limited government, they’re willing to entrust the federal government with the omnipotent power to arrest and round up people, including Americans, label them as terrorists, presume their guilt, torture them, and then, sometime down the road, send them into the federal district court system for trial, one where a verdict of acquittal, by the way, is irrelevant because under Lowry’s system the military is vested with the power to retake an acquitted federal-court defendant into custody as a guilty enemy terrorist.

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.