The Slippery Slope

One of the more frightening implications of the Scott Brown Senate victory is that voters were mainly motivated by his position on terrorists. During the campaign, Brown was widely quoted as saying:

“I believe that our Constitution and laws exist to protect this nation – they do not grant rights and privileges to enemies in wartime… In dealing with terrorists, our tax dollars should pay for weapons to stop them, not lawyers to defend them.”

Further, a poll run during the campaign found that voters favored Brown’s position over his opponents assertion that accused terrorists have constitutional rights by 61% to 29%. To me, this is far more terrifying than some kid with PETN tucked in his tighty-whities.

Mind you, I’m not particularly concerned with the likes of the so-called Fruit-of-the-Boom bomber. He was caught red “handed” and is guilty beyond any measure of reasonable doubt. His conviction is assured pretty much regardless of how it’s handled. Although I would argue that these are the cases we absolutely should be trying in civilian court while affording the accused a full slate of rights under American jurisprudence. They are slam dunks. Why not show the world we are a moral and just people while still exacting our vindication?

Rather, the slippery slope comes in when you consider that what we are talking about here is revoking the rights of people accused of a crime. And not all the people accused will be so clearly guilty as a man with a pant-load of undetonated explosives. From a legal standpoint, it immediately begs the question of who gets to level the accusation. The police? The FBI? The military? How about your neighbor? What is the burden of proof for the accusation? We pretty much have to accept there is some burden of proof lest we open up the door for those so empowered to use that accusational ability for less than noble purposes. And once there is a burden of proof to meet, we’re back to requiring a trial or judicial process of some sort, which gets us cleanly back to square one.

Moral clarity is easy to achieve at the extremes. It is a waste of time and resources to provide due process to a man trying to board a plane wearing a suicide bomb. It would also be the height of judicial silliness to revoke your rights because your neighbor accused you of “terrorist activities” because you launched a few bottle rockets from your back yard on Independence Day. But the vast majority of cases are not so clear-cut. The majority are in the gray. It’s easy to want to strip the rights of an acknowledged Al Qaeda operative from a foreign land, but what if your son was facing an accusation you felt was unjust? Would you then be so willing to sacrifice his rights to a fair trial? Would that clarity you were so confident of when you cast your ballot to assuage your need for safety be so brightly lit in your mind?

Part of what defines us as a model democracy for the world (at least for a wee bit longer) is that we are a nation of law. Blackstone’s formulation, a bedrock principle of law in England, imported and adopted as a foundational element of American justice states, “better that ten guilty persons escape than that one innocent suffer.”

As a nation, we puff our chests at every opportunity to assert how we would die for our freedom, and yet we repeatedly demonstrate that we will sacrifice our freedoms to avoid the risk of dying. It’s time to man up.

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