Jacob G. Hornberger – September 22, 2019
Given that the American people have been inculcated with the notion that they are a free people who live under limited government, whatever the federal government does is considered part and parcel of a free society. Sometimes it’s helpful to examine what totalitarian regimes do in order to bring a sense of reality to Americans.
Most every American would agree that China is not a free society. It is ruled by a brutal unelected communist totalitarian regime that will suppress any dissent that is considered to be [a] potential threat to the regime’s monopoly control over the political process. So, we can safely use China as a model for a tyrannical regime.
A few weeks ago, 28-year-old Simon Cheng, a Chinese citizen from Hong Kong crossed the border and entered mainland China, where he was arrested. The Chinese authorities apparently suspect him of involvement in the recent protests that have occurred in Hong Kong. No one has heard from him since. He has disappeared into the bowels of China’s communist criminal justice system.
According to a New York Times article about the incident, “Under Chinese law, suspects held for administration detention can be held for up to 15 days without court hearings or access to lawyers.” Regardless of what the law technically says, however, the Chinese authorities can and do hold suspects for much longer periods of time, sometimes indefinitely. The reason is there is no independent judiciary to require them to release a person. The Chinese judiciary is subservient to the ruling regime and defers to its authority.
Moreover, the regime can and does torture prisoners. Again, there is nothing anyone can do to prevent this. The torture is oftentimes so brutal that some independent minded, courageous individuals who were protesting come out of the prison process as broken people, ones whose minds have been fixed through brutal and tortuous reeducation.
Before the 9/11 attacks, that sort of thing could not happen here in the United States, at least not legally. If the government arrested someone, it was required to file formal written charges (e.g., an indictment) that would notify the person of what he was being charged with. He also would be entitled to a jury trial instead of judge trial or a tribunal trial. He had the right to an attorney to represent him. He also had a right to an independent judge. And no cruel and unusual punishments, such as torture. That’s all because our American ancestors had the wisdom to guarantee such rights in the Bill of Rights.
What if U.S. officials did to someone what the Chinese government has done to Simon Cheng. In that event, the Constitution enables him to file a petition for writ of habeas corpus, a right that stretches back several centuries in English history and which actually is a lynchpin of a free society. An independent federal judge orders the government to bring the person to court and show cause why he should not be released. At the habeas hearing, the judge orders the government to charge the person with a crime or release him. No indefinite detention, like there is China. And of course no torture.
All that came to an end with the 9/11 attacks. At that point, the national-security branch of the federal government adopted many of the same powers as the Chinese communist regime, and without any amendment to the Constitution. The military and the CIA, two of the principal elements of the national-security state, now wield the power to take anyone, including both Americans and foreigners, into military or CIA custody by simply labeling them a “terrorist,” hold them as long as they want in a military dungeon or secret CIA prison camp, torture them, and even assassinate them. While Americans still have the right to file a petition for habeas corpus, federal judges will customarily defer to the Pentagon and the CIA on their determination that a person poses a threat to “national security.”
This is what all too many Americans still don’t realize — that U.S. officials used the 9/11 attacks to destroy the freedom of the American people by adopting the same type of totalitarian powers that are wielded by the Chinese communist regime and other totalitarian regimes.
Want another example? As those of you who have been reading my articles for some time know, I have continually emphasized that America’s system of immigration controls has brought into existence a police state in the American Southwest. As part of this system, federal officials have been requiring American citizens to turn over cellphones and disclose their passwords so that officials can retrieve all of the information on the cellphone and make a copy of it. No warrant. No probable cause or even reasonable suspicion that a crime has been committed. Just raw omnipotent power to search the cellphone and, for that matter, the American citizen himself, including body cavities.
Now consider this excerpt from the NYT article:
Chinese border officers have stepped up checks on people crossing the border from Hong Kong. They have begun routinely searching the phones of people who enter the mainland from Hong Kong, apparently to identify people sympathetic to the protest movement and to prevent photographs or other information about the demonstrations from spreading to the mainland.
This is what all too many Americans simply will not permit themselves to consider: that the conversion of the federal government from a limited-government republic to a national-security state ended up destroying their liberty and their privacy. Oh sure, Americans can easily recognize tyranny abroad but they just are unable to recognize it at home. At home, they see the tyranny as “freedom” and, even worse, express gratitude for it. Unfortunately, all too many Americans reflect the words of Johann Goethe: None are more hopelessly enslaved than those who falsely believe they are free.
Originally published at FFF.org. Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He 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.
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