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The Rule of Terror

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THE HORRIFYING SEIZURE of Elián Gonzalez is one more reflection of the depths of depravity to which the U.S. government has plunged in our lifetime. The episode also reflects the extent to which all too many Americans continue to deny the reality that beneath the velvet glove of the benign welfare state lies the iron fist of a brutal, terrifying government.

President Clinton and Attorney General Reno said that they had no choice — that the military-style raid on the home of the Miami relatives of Elián Gonzalez was necessary to enforce “the rule of law.”

They are wrong. The raid was instead a denigration of the rule of law and an elevation of the rule of terror — the same type of terror that reigns in the nation from which the boy was taken by his mother.

What does the term “rule of law” actually mean? It means that in a free society, people are able to govern their conduct according to well-defined laws that have been duly enacted and judicial judgments interpreting the laws.

On the other hand, in societies governed by the “rule of men,” people must govern their conduct through obedience to the arbitrary, constantly shifting dictates of government bureaucrats.

Reno and the INS claim that their terroristic, predawn raid was justified because the INS had revoked the “parole” under which it had given custody of Elián to the Miami relatives. Thus, in the classic bureaucratic style that has come to characterize such agencies as the IRS and the ATF, they commanded the Miami relatives to turn the boy over to his father and threatened the use of force in the event of recalcitrance or disobedience.

But the government had an alternative remedy when its orders were not immediately and unconditionally obeyed — the same remedy available to every citizen of the United States when an agreement is thought to have been breached. The government could have gone to court to enforce the parole agreement and secure the necessary judicial orders for the change in custody, pending the outcome of the boy’s asylum claim in a federal court of appeals.

Why would this have produced a different result?

One reason is that a judicial proceeding, unlike a predawn raid, allows both sides to be heard before a fair and impartial judge, and that’s important, especially to the losing side.

Another reason is that Cuban- Americans, like many other Americans, have a deep and abiding respect for America’s judicial system. If either a state or a federal court had issued a final order commanding the Miami relatives to surrender the boy forthwith, on pain of contempt for failing to do so, there is little doubt that they would have complied, especially because their attorneys would certainly have advised them to comply.

The difference between a bureaucratic edict and a judicial order is the difference between night and day, especially for people who have fled a society whose very existence is based on the rule of men and the rule of terror rather than the rule of law.

Due process of law

Due process of law has always been the major underpinning of the British and American legal systems. The term itself stretches all the way back to Magna Carta — the “Great Charter” that the barons of England extracted from King John at the point of a sword. In that great document, in which a king admitted that his powers were limited, the term used was “the law of the land.” Over the centuries, it evolved into “due process of law.”

What does due process mean and why is it so important? In a procedural sense, it means that no government official can legitimately deprive a person of life, liberty, or property without following long-established judicial procedures, including notice and hearing before a judicial officer in a court of law. Due process of law guarantees that a person will have the opportunity to receive advance notice of a seizure and to present his side of the case before a fair and impartial judge before the seizure is effected.

In ancient times, the king could simply send his forces across the land and arrest citizens indiscriminately and incarcerate them for indefinite periods of time. Or he could send his minions to arbitrarily seize a person’s real or personal property. Don’t forget: It was commonly believed that people’s lives and property ultimately belonged not to them but rather to the king himself. Thus, the common conception was that life, liberty, and property were simply privileges bestowed by the king, rather than fundamental rights bestowed by God, and therefore that such privileges could be revoked by the king any time he wanted.

Thus, the concept of due process of law was a revolutionary departure from that notion. It placed a dramatic limitation on the power of the king to seize people and their property. First, it required the king to give notice to the person and then it required a hearing before a magistrate at which the person could be heard.

America’s Founding Fathers understood the vitally important nature of due process of law, which is why they incorporated the notion into the Fifth Amendment to the U.S. Constitution. Later, the concept was applied to the state governments through the Fourteenth Amendment.

The raid on the home of the Miami relatives violated this centuries-old bedrock of liberty and jurisprudence. What Bill Clinton, Janet Reno, and the INS did was exactly what the brutal kings of old did — send well-armed military forces into a private home to seize the body of a human being. In principle, their conduct was no different from that of nasty King Edward “Longshanks,” depicted in the movie Braveheart.

Judicial orders vs. bureaucratic decrees

What should government officials have done? They should have filed an action in court asking for a judicial order commanding the Miami relatives to return the child to his father. The court would have set a judicial hearing and would have notified the Miami relatives to appear and show cause why Elián should not be returned to this father. The relatives would have had the right to present their arguments in a judicial hearing. They would have been accorded their “day in court.”

If the court had ruled against the Miami relatives, they then would have been faced with violating a court order, which is an entirely different thing from a bureaucratic decree. The likelihood of their having done that is minimal, but if they had, their resistance would have lost much of its legitimacy.

Would such a judicial procedure have resulted in delay? Of course, especially if there were appeals of the lower court ruling. But that is the nature of due process of law — it does not rush to judgment (unless there is imminent danger) but instead proceeds in a logical, dispassionate way to a final judgment.

Ironically, by proceeding in the manner it did, the Clinton administration pursued the exact course of action that Fidel Castro pursues in Cuba. When the Cuban government wishes to seize a person, do you think it first provides notice and hearing to the aggrieved person? The absence of due process of law is the very essence of a tyrannical government. This is why every American who values his own freedom, regardless of whether he favored Elián’s return to his father or not, should be condemning the Elián raid. After all, if U.S. paramilitary forces are accorded the power to do this to a poor Cuban- American family, they can do it to any American family.

Doing it for the children

Clinton, Reno, and INS Commissioner Doris Meissner justified the raid by their purported concern for the welfare of the child. But how can that “concern” be reconciled with the forcible extraction of the child at the point of an assault rifle from the arms of the man who had helped save the boy’s life at sea? More important, their own justification for the military-style assault belies their claim that they had the welfare of the boy at heart. For if there was any chance whatsoever that a shootout would occur, morality and the welfare of the child dictated that the raid not take place at all. After all, wasn’t it Clinton’s and Reno’s concern for the children that cost children their lives in the Waco inferno?

Clinton’s and Reno’s claim that they simply wish to reunite a father with his son is also overshadowed by the official long-standing policy of the Clinton-Gore administration to repatriate Cuban refugees back into communist tyranny. Let’s not forget that only recently, in a desperate attempt to capture defenseless Cuban refugees before they reached American shores and to repatriate them into communist tyranny, U.S. Coast Guard officials attacked them with water cannons and pepper spray in the middle of Miami Harbor.

Make no mistake about it: Father or no father, forcible repatriation to Cuba is what would have happened to Elián if U.S. government officials, rather than Donato Dalrymple, had found him clinging to that inner tube.

The winner in all this, of course, is Fidel Castro, who has every reason in the world to be celebrating. Not only has he converted a sitting U.S. president, attorney general, and INS commissioner into his emigration agents, he also has displayed to the world that the U.S. government behaves just like his.

A detailed account of Hornberger’s trip to Cuba last year — “A Libertarian Visits Cuba” — is posted on this website:

Part 1
Part 2
Part 3

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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.