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Fighting Terrorism with Terrorism

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After the bombings of the U.S. embassies in Kenya and Tanzania, the U.S. government retaliated by bombing a gathering of individuals in Afghanistan and a pharmaceutical plant in Sudan. American government officials were convinced to a moral certainty that the people meeting in Afghanistan were international terrorists, probably even including some who were involved in the Kenyan and Tanzanian bombings. They also believed that the Sudanese plant was being used in the manufacture of chemical weapons.

In domestic criminal cases, U.S. government officials are constrained by the Constitution, including the restraints enumerated in the Bill of Rights. No matter how convinced of a person’s guilt federal law-enforcement officers are, they are not permitted to inflict punishment on the suspect before fundamental procedures of due process are followed. The person accused of a crime must be formally charged by information or indictment, cannot be denied the services of an attorney, is entitled to a trial, has the right to cross-examine witnesses, must be proven guilty beyond a reasonable doubt, and much more. The purpose of these due process protections is to ensure that innocent people are not punished for crimes that the government is “certain” that they committed.

Of course, these constitutional protections do not protect foreigners suspected of having committed crimes in foreign countries. Thus, American government officials felt legally justified in killing the suspected terrorists in Afghanistan and destroying the suspected chemical-weapons facility in Sudan.

Who were the estimated 30 people who died in the Afghan bombing? We’ll probably never know. They might have included some of the people involved in the embassy bombings in Kenya and Tanzania. But there’s also the possibility that among those killed were individuals who had nothing to do with those bombings.

What about the Sudanese plant? Sudanese authorities have invited U.S. officials to inspect the remains of the facility to confirm that it was not engaged in the manufacture of chemical weapons. So far U.S. officials have refused to accept the invitation, claiming that the evidence they had to justify the bombing is clear and convincing.

Why didn’t our government rely on the customary judicial devices for bringing suspected wrongdoers to justice? After all, the suspected terrorists and the pharmaceutical plant were inside the territorial jurisdiction of independent, foreign countries. Doesn’t our Constitution require a declaration of war before our government begins bombing people or places inside sovereign nations?

If the embassy bombings constituted criminal offenses in Kenya and Tanzania, why not permit the judicial mechanism in those countries to operate? Or if the bombing of an American embassy constitutes a criminal offense under American law, then why not let normal U.S. judicial processes take their course? Isn’t that what international extradition agreements are all about?

Have the American retaliatory bombings made life safer for the American people? It is hard to see how they have, especially if innocent people were killed in the bombings. Friends and family members of the deceased will have the urge to retaliate against Americans; and no matter how powerful the U.S. government is, it cannot protect the American people all over the world from retaliatory terrorist killings.

Much of the hatred that foreigners have for the United States, of course, stems from American foreign policy. Many Middle Easterners deeply resent, for example, watching Iraqi children slowly die as a result of the American embargo against that nation. Americans cannot reasonably expect to kill foreigners with impunity. Retaliation against Americans is to be expected.

Once opponents of American foreign policy retaliate by killing Americans, how should the U.S. government proceed? Should our government adopt the practices of the terrorists themselves and engage in indiscriminate and arbitrary killings of human beings or destruction of private property? Or should it instead maintain a higher standard: a firm commitment to the rule of law, due process, and well-established judicial procedures to bring the guilty to justice?

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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.