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Warning The War on Law by John L.
Martinez Terrorism must be fought. But not at the
expense of liberty and law.
To wage war on terrorism as a matter of foreign policy is
one thing. To wage that war as a matter of domestic policy is another. The
government cannot wage such a domestic "war" without in large part disregarding
the Constitution. Domestic war and domestic law cannot possibly coexist in a
constitutionally based legal framework.
| | John L.
Martinez served on the Municipal and Superior Courts of Los Angeles County
for more than 22 years. |
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An act against society, however violent and dastardly, by any individual who
has submitted himself to that society's jurisdiction can never be an act of war
against that society. He may well be an enemy of the people and worthy of the
most serious punishments, but there does not exist a state of war between the
individual and society. His acts can and must be dealt with as crimes against
society. This, of course, society is equipped to do through its legal processes.
To attempt to avoid important and necessary legal processes by labeling persons
terrorists does not change this imperative. The expression "war on
terrorism," as used domestically, is as misleading as the expressions "war on
poverty" and "war on drugs." "War" can be and often is used to provoke emotion,
passion, or our irrational natures. To make radical improvements in our national
security, to organize ourselves to accomplish this goal, to make a greater
commitment of our resources and energy to achieve this end — these are all
good and necessary things. But they are not the "prosecution of war."
To refer to them in this way is to do a major disservice to the American
people by insinuating that it is quite to be expected that we must forego our
liberties for the duration of "combat." "War" is the time when constitutional
protections tend to be most imperiled — even when war is being waged for the
liberties guaranteed by them. We need to be sober and critical about attempts to
lead us into "war," and never more so than at times, like the present, when the
"combat" is obscure.
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| Our true safety must
ultimately depend on sound and effective law enforcement and a fair and open
justice system. |
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Let me offer some examples of areas in which vigilance is required. One has to
do with proposals for new courts, whether civil or military, wherein the
providers of clearly inadmissible evidence and the inadmissible evidence itself
are not disclosed to defense counsel. The mere name of "court" would not save
these bodies from their tyrannical nature. It would merely give them the illusion
of functioning in a traditionally constitutional manner.
Another example is the idea of arresting and subsequently detaining persons
for uncertain periods of time on the basis of government suspicions about their
intentions. This is a radical departure from a fundamental principle of
constitutional law, the principle that probable cause must be shown that some
offense has been committed before government intrusion in this manner is
warranted and permitted. Our true safety must ultimately depend on sound and
effective law enforcement and a fair and open justice system. We cheat ourselves
if we accept anything less.
The requirement that there be evidence of some offense before arrests ensue
does not mean that law enforcement officers must wait around with their hands
tied before they can act on our behalf. No, the law has always provided them with
the ability to thwart intended crime. Common means of doing this have included
the laws of "attempt," "conspiracy" and "possession of apparatuses." When a
direct but ineffectual act is committed toward the commission of a crime, that in
itself is the crime of attempt. The law does not even require that an attempt
shall actually have been committed. When two or more people agree to commit a
crime and one of them engages in some overt act or step in furtherance of the
objective, we have the crime of conspiracy. The law can also make it illegal just
to possess certain dangerous materials or criminally useful objects.
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outside the powers delineated in its constitution, against any one person subject
to its laws, is declaring war on all the people.
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John Locke, in his "Second Treatise on Government" — a document that
exercised enormous influence on America's founding fathers — argues that
government "is bound to . . . decide the rights of the subject by promulgated
standing laws." To suggest, then, that a government can, at its own discretion,
determine that one citizen has fewer rights than other citizens or that one
person is entitled to constitutional protections and another person is not, is to
sanction tyranny over constitutional governance. For the government to operate
beyond the powers granted to it by the Constitution when it itself is a creature
of that Constitution by using, domestically, the expression "war on terrorism" as
its justification does profound damage to permanent and perpetual individual
freedom. The situation only looks worse when the war itself has no boundaries or
identifiable end.
More than three centuries ago Benedict de Spinoza, who is said to be the first
philosopher to justify democracy systematically, wrote that "the true aim of
government is liberty." We must always remember that the unique concern of a
democratic government is the preservation of personal liberty, and that the
paramount obligation of each member of a democracy is to demand from that
government nothing less.
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