Of all the dangers to the freedom of the American people, I would rank the enemy-combatant doctrine as the greatest. In my opinion, the federal government’s power to label a person a terrorist as part of its so-called war on terrorism — a power that came into existence by presidential decree after the 9/11 attacks — is a greater threat to freedom than the welfare state, the income tax, the national debt, out-of-control federal spending, inflation, gun control, the drug war, or the warfare state. The enemy-combatant doctrine endows the government with omnipotent, direct power over the lives of citizens — the power to round them up, send them into concentration camps, torture them, and execute them. It is the ultimate power of any dictatorship, a power that people have resisted for centuries in their quest for freedom.
When the barons of England forced King John to sign the Magna Carta in 1215, one of the things that they required him to openly acknowledge was that his powers over the English people were limited in scope. Among the restrictions on power that the Magna Carta required the king to acknowledge was that no longer could he and his forces arbitrarily arrest or round up people and incarcerate them in violation of the “law of the land,” a phrase that over the centuries evolved into the phrase “due process of law.”
It is that phrase — “due process of law” — that occurs in the Fifth Amendment to the Constitution, where it expressly prohibits the government from depriving any person of life, liberty, or property without due process of law. It is also found in the Fourteenth Amendment, which applies the same restriction to state governments. Those particular parts of the Fifth and Fourteenth Amendments stretch all the way back to the year 1215, when English barons forced their king to acknowledge the principle of limited government.
Prior to the signing of the Magna Carta, the king possessed the omnipotent power to have people arrested and jailed. He didn’t need any reason or justification for doing so. He was the king, and the people were his subjects. As king, he could do whatever he wanted to his subjects. If he wanted to have a person arrested and jailed, that was his prerogative as the sovereign. People were expected to submit to the arrest and incarceration. If they resisted, they would be forcibly subdued by his military forces.
All too often, the king would wield such power over his political enemies or against those who simply criticized his policies or practices. Those who dissented from what he was doing would encounter soldiers bashing down their doors and carting them away to a dungeon, where they would be locked up indefinitely, tortured, or executed.
The Magna Carta represents one of the most gigantic steps in the advancement of freedom in history. No longer did the king have the power to arbitrarily arrest, incarcerate, torture, or execute people. With the Magna Carta, the king acknowledged that he no longer wielded the omnipotent power to take people into custody in violation of “the law of the land.”
What did “law of the land” or “due process of law” entail? The meaning of the concept evolved and developed over the centuries. At a very minimum, it meant notice and hearing. That is, before the king could punish someone, he would have to give formal notice to the person of the particular offense with which he was being charged. Moreover, before the king could punish him, the person would be entitled to a hearing at which he could contest the charges against him.
That concept — notice and hearing — was a phenomenal development in the history of liberty. With notice and hearing, before the king’s forces could seize an opponent or a critic of the regime the king would have to first charge the person with a particular crime and then grant him a hearing at which he could contest the charges against him. That requirement of notice and hearing obviously presented an enormous impediment to the king’s exercise of direct, omnipotent power over the citizenry that existed prior to the signing of the Magna Carta.
Now let’s jump forward from the year 1215 to 1776, to the Declaration of Independence. In that revolutionary document, Thomas Jefferson declared that all men have been endowed with certain fundamental, natural, God-given rights that no government can legitimately infringe. The sole purpose of government, he declared, is to protect the exercise of such natural or God-given rights.
Yet it is clear that due process of law is not a natural or God-given right. It’s obviously different from such rights as freedom of speech, freedom of religion, freedom of the press, and keeping and bearing arms, which inhere in people as part of their humanity. Due process of law, on the other hand, arises in the context of the establishment of government. That is, it is a protection from the government itself.
In the Declaration, Jefferson acknowledges that government is necessary to protect the exercise of man’s natural, God-given rights. But a problem instantly arises: the government itself, as necessary as it is to protect people’s rights and freedom, immediately becomes the greatest threat to such rights and freedom. Government inevitably attracts those people in life who choose to use its power to oppress people, sometimes with the best of intentions and most of the time with the greatest zeal.
So how do people resolve this conundrum? On the one hand, government is necessary to protect their freedom. On the other hand, once it is established, government immediately becomes the greatest threat to their freedom.
Let’s now jump ahead to 1787, when the Constitution was enacted. The Constitution proposed that the federal government be called into existence. The American people were not enthusiastic about that idea. As imperfect as the Articles of Confederation were, the powers under the federal government were weak under them, and Americans were happy about that. They had had experience living under a government whose powers over them were extensive, and they didn’t like it. In fact, they so disliked it that they took up arms against their own government and successfully seceded from the British Empire. The last thing they wanted was to call into existence a federal government that would end up putting them under the same yoke as their government had done prior to 1776.
Ultimately, however, Americans acceded to the Constitution, in large part for two reasons.
First, they understood that the Constitution limited the new federal government to just a few powers, ones that were expressly enumerated in the Constitution itself. If a power wasn’t enumerated, the federal government couldn’t exercise it, even if it wanted to, even if it believed that it was in the best interests of the country to do so, and even if most people favored it.
Second, they were assured that soon after the Constitution was ratified, it would be amended with a bill of rights, one that would expressly prohibit the federal government from interfering with certain fundamental rights and, equally important, would prohibit it from arresting and punishing people without first overcoming a myriad of barriers and obstructions.
Natural and judicial rights
Compare the rights in the First and Second Amendments with those in the Fourth, Fifth, Sixth, and Eighth Amendments. The First and the Second protect natural and God-given rights — rights that preexist government — from infringement by the government itself. The guarantees in the Fourth, Fifth, Sixth, and Eighth Amendments protect people who are being targeted by the government for punishment.
When the Constitution was being proposed, the reason people resisted approving it was their conviction that this new federal government would end up taking away their freedom of speech, freedom of the press, the freedom to dissent, the right to keep and bear arms, and the freedom to worship. They were certain that even a U.S. government would end up attracting power-lusting people who, perhaps with the best of intentions, would end up doing those things.
Therefore, they demanded that it be made clear in the First and Second Amendments that the federal government was expressly prohibited from doing those sorts of things, no matter how well-intended federal officials might be.
But that wasn’t the end of the story. What if the Constitution had been amended with only the First Amendment? What if there had been no Fourth, Fifth, Sixth, or Eighth Amendments? Suppose that while the government was prohibited by the First Amendment from infringing people’s freedom of speech, it nonetheless wielded the omnipotent power to arrest anyone and incarcerate him, torture him, and execute him— that is, it wielded the power that English kings had prior to the signing of the Magna Carta?
The obvious question arises: What difference would it make if people were guaranteed the right of freedom of speech if the government wielded the omnipotent power to arrest, incarcerate, torture, and execute them for whatever reason it wanted? The government could round people up legally and simply deny that it had anything to do with their criticism of the government. Wouldn’t the mere existence of such power serve to silence the citizenry, notwithstanding the fact that the First Amendment expressly guaranteed the exercise of freedom of speech? People in jail could scream to their heart’s content that the First Amendment protected their right to criticize the government, but what difference would it make? Their torturers would just smile and say, “Of course, you have freedom of speech, which is why I’m letting you scream as loudly as you want as I turn the screws a bit tighter, which I have the lawful authority to do.”
It was that concern that motivated our American ancestors to insist on including the guarantees in the Fourth, Fifth, Sixth, and Eighth Amendments in the Bill of Rights. They knew from history — a history of resistance to tyranny that stretched all the way back to the Magna Carta — that they needed a judicial process that would prevent the federal government from doing what governments throughout history had done — arbitrarily deprive people of their rights and freedoms through the power to simply round them up, send them into jails or torture chambers, and execute them.
That concern among our American ancestors was not only reflected in the principles found in the Fourth, Fifth, Sixth, and Eighth Amendments but also in the Constitution itself — in the provision relating to the ancient judicial protection of habeas corpus. Let’s now examine the principles of habeas corpus and the principles underlying the Fourth, Fifth, Sixth, and Eight Amendments in the context of the post–9/11 enemy-combatant doctrine.
This article originally appeared in the January 2012 edition of Freedom Daily. Subscribe to the print or email version of The Future of Freedom Foundation’s monthly journal, Future of Freedom (previously called Freedom Daily).