Lies the government told you (30 page)

Lucky for the police, the car was a beautiful $85,000 Mercedes Benz coup. (The present-day version of this car sells for $160,000.) Even luckier for the chief prosecutor of the county, the police proceeded to gift the car to him, and he proceeded to use it as his own
personal
car. Imagine the outrage of being presumed innocent, having your car seized, and then, walking down the street, observing the men who had
stolen
it, driving it. Imagine then that you had no legal recourse, that the law that was meant to protect you instead validated the theft.

Unfortunately for the prosecutor, the defendant who was driving the car did not own the Mercedes; his father did. Needless to say, when the young man and his father petitioned me to have the car returned, I did just that. A few years later, I was accosted by the former prosecutor’s wife as the judge who had taken
her husband’s car
away. The former prosecutor who used the car has since been convicted of unrelated crimes, incarcerated, disbarred, and presently works as a night security guard at a hotel.

These stories are just a few about the forfeiture laws in the United States, but they so aptly debunk the myth that one is innocent until proven guilty. Once your money or property is seized, which can be done for no apparent reason, it is
your
burden to prove
your
innocence and
your
ownership of
your
asset. The reason that we have laws stating that one is innocent until proven guilty is because it is so very hard to prove a negative. Just imagine trying to prove that the twenty dollars in your wallet right now are yours legally, that you did not steal them, especially if there is no specific accusation as to whom you stole the money from, when you stole, it, or how. Instead, like sheep we permit the government to say, “I am going to assume that this is stolen, and if you want it back, prove to me that it is not.” Now imagine that the money was your entire life savings.

Guilty by Presumed Association

In 2000, the U.S. Department of State Country Reports on Human Rights Practices, reporting on the Egyptian custom of trying those accused of terrorism in front of military tribunals, noted that “military courts do not ensure civilian defendants due process before an independent tribunal.” Yet only a few years later, the federal government apparently felt that this statement did not apply to it and enacted a law allowing any noncitizen suspected of being a terrorist to be tried by a military commission.

The last time the government used a military tribunal in this country to try foreigners who violated the rules of war involved Nazi saboteurs during World War II. They came ashore in Amagansett, New York, and Ponte Vedra Beach, Florida, and donned civilian clothes, with plans to blow up strategic U.S. targets. They were tried before a military tribunal, and President Franklin D. Roosevelt based his order to do so on the existence of a formal congressional declaration of war against Germany.

In the uproar caused by Attorney General Eric H. Holder Jr.’s 2009 announcement that the alleged planners of the 9/11 attacks are to be tried in U.S. District Court in New York City—and the suspects in the attack on the U.S. destroyer
Cole
will go on trial before military tribunals at Guantanamo Bay, Cuba—the public discourse has lost sight of the fundamental principles that guide the government when it makes such decisions. Unfortunately, the government has lost sight of the principles as well.

When President George W. Bush spoke to Congress shortly after 9/11, he did not ask for a declaration of war. Instead, Republican leaders offered and Congress enacted an Authorization for the Use of Military Force. The authorization was open-ended as to its targets and its conclusion, and basically told the president and his successors that they could pursue whomever they wanted, wherever their pursuits took them, so long as they believed that the people they pursued had engaged in acts of terrorism against the United States. Thus was born the “war” on terror.

Tellingly, and perhaps because we did not know at the time precisely who had planned the 9/11 attacks, Congress did not declare war. But the use of the word
war
persisted nonetheless. Even after he learned what countries had sponsored terrorism against us and our allies with governmental assistance, Bush did not seek a declaration of war against them. Since 9/11, American agents have captured and seized nearly eight hundred people from all over the globe in connection with the attacks, and now five have been charged with planning them.

Virtually all of those seized who survived interrogation have been held at Guantanamo Bay. Bush initially ordered that no law or treaty applied to these detainees and that no judge could hear their cases, and thus he could detain whoever he decided was too risky to release and whoever he was satisfied had participated in terrorist attacks against the U.S. He made these extraconstitutional claims based, he said, on the inherent powers of the commander in chief in wartime. But in the Supreme Court, he lost all five substantive challenges to his authority brought by detainees. As a result, some detainees had to be freed, and he and Congress eventually settled for trying some before military tribunals under the Uniform Code of Military Justice and subsequent legislation.

The casual use of the word
war
has led to a mentality among the public and even in the government that the rules of war could apply to those held at Guantanamo. But the rules of war apply only to those involved in a lawfully
declared
war, and not to something that the government merely
calls
a war. Only Congress can declare war—and thus trigger the panoply of the government’s military powers that come with that declaration. Among those powers is the ability to use military tribunals to try those who have caused us harm by violating the rules of war.

The recent decision to try some of the Guantanamo detainees in federal District Court and some in military courts in Cuba is without a legal or constitutional bright line. All those still detained since 9/11 should be tried in federal courts because without a declaration of war, the Constitution demands no less.

That the target of the
Cole
attackers was military property manned by the navy offers no constitutional reason for a military trial. In the 1960s, when Army draft offices and college ROTC facilities were attacked and bombed, those charged were quite properly tried in federal courts. And when Timothy McVeigh blew up a federal courthouse in Oklahoma City; and Omar Abdel Rahman attempted in 1993 to blow up the World Trade Center, which housed many federal offices; and when Zacarias Moussaoui was accused in the 9/11 attacks, all were tried in federal courts. The “American Taliban,” John Walker Lindh, and the notorious wouldbe shoe bomber, Richard Reid, were tried in federal courts. Even the “Ft. Dix Six,” five of whom were convicted in a plot to invade a U.S. Army post in New Jersey, were tried in federal court. And the sun still rose on the mornings after their convictions.

The Framers of the Constitution feared letting the president alone decide with whom we are at war, and thus permitting him to trigger for his own purposes the military tools reserved for wartime. They also feared allowing the government to take life, liberty, or property from any person without the intercession of a civilian jury to check the government’s appetite and to compel transparency and fairness by forcing the government to prove its case to twelve ordinary citizens. Thus, the Fifth Amendment to the Constitution, which requires due process, includes the essential component of a jury trial. And the Sixth Amendment requires that when the government pursues any person in court, it must do so in the venue where the person is alleged to have caused harm.

Numerous Supreme Court cases have ruled that any person in conflict with the government can invoke due process—be that person a citizen or an immigrant, someone born here, legally here, illegally here, or whose suspect behavior did not even occur here.

Think about it: If the president could declare war on any person or entity or group simply by calling his pursuit of them a “war,” there would be no limit to the government’s ability to use the tools of war to achieve its ends. We have a “war” on drugs; can drug dealers be tried before military tribunals? We have a “war” on the Mafia; can mobsters be sent to Gitmo and tried there? The Obama administration has arguably declared “war” on Fox News. Are my Fox colleagues and I in danger of losing our constitutional rights to a government hostile to our opinions?

I trust not. And my trust is based on the oath that everyone who works in the government takes to uphold the Constitution. But I am not naïve. Only unflinching public fidelity to the Constitution will preserve the freedoms of us all.
²⁰

Guilty Solely Through Existence

If you find that the standard of “innocent until proven guilty” has been categorically breached by the government time and time again, with no regard for due process and with continuing deception, then I can only imagine your outrage when you learn about a Federal law that in essence ensures you are guilty no matter what your intentions may be. This is the Sherman Antitrust Act of 1890. This one-hundred-twenty-year-old piece of legislation was the beginning of the ambiguous “Progressive” antitrust laws in the United States. It was hailed as ensuring that consumers would now be safe from the big, bad corporations who were going to get together and make everything unbelievably expensive.

After the Sherman Act became law, the business folks had a lot of trouble: If their prices were too high, that meant they were intending to monopolize; if they charged lower prices than the competitors, then they were charged with unfair competition; and if they charged prices similar to everyone else, then they could all be charged with conspiracy.
²¹
Because the law is unclear, and its interpretation is constantly shifting and changing, a businessperson cannot know whether she or he is doing something legal or illegal. The president of United States Steel Corporation noted in a speech in 1950, which he entitled “Guilty Before Trial,” that if the antitrust laws persisted and were to be enforced “impartially against all offenders, virtually every business in America, big or small, is going to have to be run from Atlanta, Alcatraz, Sing Sing, Leavenworth or Attica.”
²²

Unlike the “supposed” presumption of innocence for individuals in the justice system, the business folks under attack from antitrust laws are in essence guilty until proven innocent, and there is no standard on how to prove their innocence. Supreme Court Justice Robert Jackson, when he was head of the Antitrust Division of the Department of Justice, noted that it “is impossible for a lawyer to determine [in advance] what business conduct will be pronounced lawful by the Courts,”
²³
and that this was an embarrassing situation for everyone involved. Basically, anytime anyone goes into business, he can be automatically guilty of one violation of the Sherman Act or another, solely through the setting of prices for his product.

The government always claims to have good reasons for antitrust laws. Its original reasoning was that “trusts [an ancient word for commercial agreements] tended to restrict output and drive prices up.” Of course, there was no evidence in support of this theory at the time that the Sherman Act was passed. Rather, there is actually evidence that the trusts reduced prices, and Congressman William E. Mason (R-IL) stated, on June 20th 1890, that “trusts have made products cheaper, have reduced prices” but then also claimed that this was irrelevant, because by making prices lower, the trusts had effectively “destroyed legitimate competition and driven honest men from legitimate business enterprise.”
²⁴

The basic rationale behind antitrust legislation is, as usual, the public safety; specifically economic safety. The feds claim they can prevent companies from restricting the market and therefore raising prices and preventing technological advancement. The government assumes that without its protection, the people will be gouged by corporations who would form monopolies or cartels, or “trusts,” and engage in “predatory practices.”

These are the government terms that strike fear into the average person. All of us, even those who have not studied economics in any way, have learned the dangers of these actions. We hear the word
monopoly
and think that it means the end of competition in the market, and the beginning of one giant corporation taking every little cent of our money. Yet, when one actually considers the monopoly in a free market, it should be simple to see that the only monopoly that could survive was one that offered the best products at the best prices.

Any corporation needs customers who are willing to buy from it. If it is monopolistic and does not offer the best products, other entrepreneurs will start their own business, and customers will leave the monopoly and move to the competition. And if it does offer the best product for the best price, then why is that movement a bad thing? Do we honestly mind paying less for a better product because it is produced by a company that sells more than 50 percent of those products in a given market? In reality, the only monopolies existing currently are those run by the government, like the post office and utility companies, which are
immune
from the antitrust laws.
Sadly, as we know, the government does not practice what it preaches
.

But if the whole purpose of the Sherman Act, as stated by the government, has been to ensure competition, was not part of competition the idea that some lose while others win? Even the government could not keep its sham reasoning straight. And the reason for this was explicitly stated by the
New York Times
, on September 29th 1890, which concluded “[t]hat so-called Anti-Trust law was passed to deceive the people and to clear the way for the enactment of this . . . law relating to the tariff.”
²⁵
Tariff laws were, of course, very beneficial to the government collecting the tariffs, so there is no question why it would want to ensure that the public was kept from those truths because the Sherman Act falsely proved to everybody that the government was protecting them.