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OP-ED:

The O'Reilly Fear Factor

by JACOB G. HORNBERGER
O'Reilly insists that "we're not losing any rights" with the passage of the new detainee law, even though the right to habeas corpus is guaranteed in the Constitution and the rights to an indictment, due process of law, counsel, trial by jury, a speedy and public trial based on competent evidence, and protection against cruel and unusual punishments are enumerated in the Bill of Rights.
It should come as no surprise that conservative Fox News commentator Bill O'Reilly is praising the military-detention bill that President Bush recently got through Congress. In a commentary dated September 29, 2007, O'Reilly said that "the only downside for the president is that interrogation methods like water boarding are no longer allowed."

The new detainee law constitutes the most extreme reordering of America's criminal-justice system since our nation's founding. It cancels habeas corpus and fundamental procedural rights of due process that stretch back to Magna Carta. Federal grand-jury indictments for terrorism are no longer necessary. Criminal prosecutions for terrorism can now be handled by the military, which is part of the executive branch, rather than by the judicial branch. There will no longer be any right to a jury trial in which the jury consists of ordinary citizens. Military personnel will decide the guilt or innocence of the accused and, unlike in federal-court proceedings, will be permitted to rely on hearsay evidence and evidence acquired by torture to convict the defendant. Right to counsel will be limited. There will no longer be a right to a speedy and public trial. Military judges, not independent federal judges, will preside over the proceedings. The military will be free to inflict cruel and unusual punishments on those judged to be terrorists.

Nevertheless, O'Reilly insists that "we're not losing any rights," even though the right to habeas corpus is guaranteed in the Constitution and the rights to an indictment, due process of law, counsel, trial by jury, a speedy and public trial based on competent evidence, and protection against cruel and unusual punishments are enumerated in the Bill of Rights.

If O'Reilly thinks that the new detention law applies only to foreigners, he'll be surprised to learn that the new law does not limit the definition of "unlawful enemy combatants" to foreigners but instead refers to "persons." Don't forget, after all, that U.S. officials have applied the term to Jose Padilla, an American arrested in Chicago and accused of terrorism.

The law prohibits foreigners, but not Americans, accused of terrorism from filing petitions for writs of habeas corpus in federal court, an abrogation of the long-held principle in U.S. criminal jurisprudence of equal treatment under law.

Who decides who the terrorists are under the new terrorism law? U.S. military personnel, who answer to the president, will make that determination rather than civilian juries in federal courts.
Who decides who the terrorists are under the new terrorism law? U.S. military personnel, who answer to the president, will make that determination rather than civilian juries in federal courts. That makes O'Reilly happy because he intimates that he trusts the military more than he trusts civilian juries. He even laments the fact that convicted terrorist Zacarias Moussaoui received a trial by jury in a U.S. District Court, as the Sixth Amendment requires, rather than a military tribunal, because it cost American taxpayers millions of dollars to prosecute and convict him in U.S. District Court.

What about those "terrorists" whom the feds prosecuted in Detroit a couple of years ago? Those "terrorists" either were acquitted by a federal jury or had charges of terrorism against them dismissed by a federal judge. That case must have cost taxpayers millions of dollars too. Undoubtedly, O'Reilly regrets that those Detroit "terrorists" were not sent to the kangaroo military tribunals, where they would have been easily convicted and executed, rather than through the federal-court system that ultimately released them from custody.

Why, maybe O'Reilly even wants the feds to seek the military extradition and execution of Canadian citizen Maher Arar, whom U.S. officials arrested and "renditioned" to Syria for torture because they were certain, erroneously as it turned out, that he was a "terrorist."

Why does O'Reilly place his faith in the military to determine who is a terrorist, rather than in civilian juries and the federal-court system that the Framers established in the Constitution? He says it is because "most Americans are in danger and want the military to protect them."

Unlike Bill O'Reilly, I don't live my life in fear of terrorists, and like our American ancestors who enacted the Bill of Rights I'm not willing to trade our fundamental rights and freedoms for the pretense of federal "security."
Translation: "I'm scared to death, my knees are knocking, and I'm willing to surrender rights and freedoms that stretch all the way back to Magna Carta in the hope that the federal fox will protect us chickens from those big bad terrorists."

But unlike Bill O'Reilly, I don't live my life in fear of terrorists, and like our American ancestors who enacted the Bill of Rights I'm not willing to trade our fundamental rights and freedoms for the pretense of federal "security."
Jacob Hornberger is founder and president of The Future of Freedom Foundation (fff.org) in Fairfax, Virginia.



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This story was published on October 4, 2006.