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Chief Justice Speaks On Fear

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  • jail4judges
    J.A.I.L. News Journal _____________________________________________________ Los Angeles, California September 29, 2003
    Message 1 of 1 , Sep 29, 2003
      J.A.I.L. News Journal
      Los Angeles, California                                         September 29, 2003

      Chief Justice New Mexico Supreme Court (Ret.) Speaks On Fear
      What fear is doing to our freedoms
      By Gene E. Franchini, retired chief justice of the New Mexico Supreme Court

      For the next few minutes, I would like to speak with you about a subject which I'm sure every New Mexico Foundation for Open Government member cherishes . . . "the public's right to know." ....
      Fear is the most debilitating of all human emotions. A fearful person will do anything, say anything, accept anything, reject anything, if it makes him feel more secure for his own, his family's or his country's security and safety, whether it actually accomplishes it or not.

      It works like a charm. A fearful people are the easiest to govern. Their freedom and liberty can be taken away, and they can be convinced to believe that it was done for their own good - to give them security. They can be convinced to give up their liberty - voluntarily.

      Recently, the passage of the USA Patriot Act and the Homeland Security Act have resulted in the most direct attacks on the Bill of Rights that I have seen in my lifetime. These acts were passed without any meaningful opposition and still have considerable public support.

      The USA Patriots Act is an acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism."

      The way that government is going to be provided with these "appropriate tools" is to "temporarily" suspend or eliminate as much of our Constitution and its Bill of Rights as it can, without court oversight or intervention, so that we will not be at a disadvantage in the war against terrorism.  That's the idea.

      Think about that for a minute, and then ask yourself: Why in the world would we voluntarily do to ourselves that which our enemies over the last 200-plus years have not been able to do to us by force? Why would we be so willing to give up our God-given rights that have been verbalized in our Constitution, when we have fought so hard to preserve them?

      It almost boggles the mind, when one considers what fear for one's safety and security can accomplish. These bipartisan, virtually unopposed, legislative, governmental actions are saying to us, "If you temporarily give up some of your liberty and freedom now, you will be made more secure in the future."

      That, my friends, is a terrible lie. To paraphrase Benjamin Franklin, "One who trades his freedoms for security, deserves neither." I might add that person will finally lose both.

      The people have a right to know what their government intends to do about the war on terrorism, and that includes all of its branches - including the judicial branch.

      In a time of war, actual or threatened, our courts have, in my opinion, repeatedly abdicated their function of equally interpreting and applying the Constitution, bowing instead to "national security."

      The most horrible example was when the U.S. Supreme Court upheld the internment of Japanese Americans during the Second World War, because the government claimed they were a security threat. It took Congress some 50 years to attempt to rectify that horrible opinion.

      Did we learn anything? I'm afraid not. Today, with this unending war on terrorism, our government has taken steps again to radically infringe upon the right to counsel, reasonable search and seizure, the right to a speedy and fair trial, and other fundamental liberties, for fear of losing our security.

      We can hope that, eventually, the U.S. Supreme Court will subject these infringements to real constitutional scrutiny. Unfortunately, the courts have historically yielded to wartime fears and claims that our security interests would be jeopardized. Those prior wars ended before long and, when they did, the country regretted the fact that it had abandoned the Constitution, even temporarily.

      The war on terrorism is different. It's a war on an old idea - one that has been used for hundreds, if not thousands, of years. It is a horribly destructive idea, but history has shown that you can't kill an idea, however horrible, by killing those who have it. You kill or replace an idea only by coming up with a better one. So far, we haven't really tried to come up with a better one.

      No one can even guess how long this war will last. In the meantime, Americans, as well as aliens, have been harshly affected by governmental measures after 9-11.

      The attorney general of the United States had more than 1,000 aliens detained, keeping their names and locations secret. There are over 600 left at Guantanamo in Cuba. He ordered many deportation hearings in secret. He required visitors from 25 countries, mostly Muslims, to register with the government; and, if they didn't within 40 days, they were subject to arrest, detention and deportation - no public trials, no lawyers - all in secret, in the name of preserving security.

      For example, one American citizen, Yasser Hamdi, was found under unexplained circumstances on a battlefield in Afghanistan. He was classified as an "enemy combatant," a new term which the government created to give it the power to seize and hold American citizens indefinitely, without counsel or trial, and without any effective review by the courts.  He was totally isolated and not allowed to see a lawyer. He was not charged with any crime.

      However difficult, lawyers came forward and were eventually allowed to defend Hamdi. They immediately challenged his detention on constitutional grounds - specifically, that this American was denied his right to counsel, his right to know the charges against him, the right to face his accusers, and his right to a fair and speedy trial.

      The federal 4th Circuit Court of Appeals sidestepped the Constitution and ignored Hamdi's constitutional rights as an American. Its holding: "The defendant, an American citizen, classified as an `enemy combatant,' does not have a constitutional right to counsel or trial, because `Mr. Hamdi was not being prosecuted.'"

      The government, therefore, can impose solitary confinement indefinitely, by simply avoiding charging the defendant and giving such a defendant a lawyer or a trial. If this isn't a violation of the Sixth Amendment, Hamdi at least has certainly been deprived of liberty without due process of law.

      James Madison, the principal author of the Bill of Rights, must be spinning in his grave. Most Americans would be shocked, I think, if they realized that they could be classified as an "enemy combatant," taken off the street, imprisoned indefinitely and not be given the opportunity to call a lawyer. But you can, my friends. At least one federal appellate court has established that precedent.

      Since 1990, (the Foundation for Open Government) has had a single mission:  to help the general public, students, educators, public officials, media and legal professionals understand, obtain and exercise First Amendment rights, as well as their rights under the New Mexico Open Meetings Act and Federal Freedom of Information Act.

      The First Amendment is most important, or it would not have been the first.  But please don't forget the other nine, which, together with the first, compose the Bill of Rights, the foundation of this nation's greatness and the real source of our security.

      If the present situation lasts for a generation, as well it may, together with its formidable and direct attempt to restrict or eliminate the Bill of Rights in the name of security, then the next generation may not remember what their rights were.

      There won't be anyone around to remember them or remind the next generation what they were. They may say that they eliminated or restricted them for your own good, and, besides, your forefathers and mothers voluntarily gave a lot of them up a generation ago.

      So what is the Foundation for Open Government's mission? I think its prime purpose is to keep the public informed, to keep the government open and to preserve for the public their right to know. Its mission is to remind the people what has made this nation the greatest on Earth, especially why they should care, as well as why and how they can continue to preserve the Constitution and its magnificent Bill of Rights.

      Those first 10 amendments to the U.S. Constitution are the real foundation for our freedom and liberty, our foundation for real security. It is the fundamental law which has made us the land of the free and the home of the brave. We have been that for over 200 years. Let's keep it that way.

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