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September 11th Changed Everything?

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Dr. Melancon is an Associate Professor of History at Southeastern Oklahoma State University.

Reporters, politicians and people on the street tell us ad nauseam that"September 11th changed everything." Did it? The tragic and horrific acts of murder committed that day call for extraordinary responses and patience. Does American security require, however, the country to assume that"innocent until proven guilty" is a Pollyanna notion. American security forces need the freedom to act and to act quickly to prevent"another September 11th," but does this freedom include torture and indefinite detention of potential witnesses or suspected criminals? Yes, law enforcement officers must act decisively and firmly, but, no, they must not forget what they enforce-the Constitution. It is unconstitutional for the government to hold indefinitely or to torture POTENTIAL witnesses or SUSPECTED criminals. If these individuals remain silent and refuse to cooperate, the government cannot assume that they are guilty and proceed with punishment. The government must find other means to prove their guilt.

The presumption of innocence is the heart of the American legal system, separating our system of justice from the tyrannies of history. Granted, the phrase"innocent until proven guilty" is an oversimplification, but it remains essentially correct. It most likely comes from Cesare Beccaria:"No man can be judged a criminal until he be found guilty; nor can society take from him the public protection until it have been proved that he has violated the conditions on which it was granted." (1764) Before September 11th Microsoft unsuccessfully challenged a verdict that the company constituted an illegal monopoly. Microsoft argued that Judge Thomas Penfield Jackson for the U.S. District Court for the District of Columbia was biased against the company, violating its right to a fair trail. In Microsoft's view, it had not been afforded the presumption of innocence. If innocence is not presumed by the judge or jury, why is the standard required for conviction in criminal cases"beyond of reasonable doubt"? In the courtroom prosecutors present their case first. If the defendant believes that a judge or jury has NOT been convinced, he/she can simply rest without presenting any evidence. Why? . . . because the defendant is in no way obligated to prove his/her innocence. After September 11th, the burden of proof still rests with the government, not the defendant.

Secret and indefinite detention of witnesses and suspected terrorists is now an accepted"post-September 11th fact." While the government does have the authority to detain a person on reasonable suspicion for a SHORT period of time (see Sixth Amendment requirement for a"speedy trial"), prolonged detention without a formal accusation is going too far. Unless the Congress votes to suspend the Writ of Habeas Corpus [See Article I, Section 9], the president is required by the Constitution to follow normal rules of due process already established by the Constitution, Congress and court precedent. Judicial torture is even more antithetical to American values. The government does not have the unrestrained authority to abuse physically a person thanks to the Eighteen Amendment's prohibition of" cruel and unusual punishment." The Supreme Court further clarified the issue in Wilkerson v. Utah (1879) when it declared that torture, as a form of punishment, was unconstitutional. How much more unconstitutional would it be for the government to torture a person before an actual conviction? When Cesare Beccaria first argued against judicial torture in On Crimes and Punishments (1764), he lived in a society that used violence to extract evidence from witnesses. He understood, more than two hundred years ago, that it is illogical for the government to expect credible evidence from victims of torture. After September 11th it remains true that Americans live in a much more SECURE society than societies which practice or practiced judicial torture (see Saudi Arabia).

If government officials, agents of the FBI, CIA, ATF, INS et cetera , use torture, they would be guilty of undermining the very document and values they have swore to protect. If United States'"National Security" means protecting the Constitution, if this war is about protecting"American values", why must we be willing to destroy the constitution in the process? Will we be anymore secure without constitutional guarantees of basic human rights? One thing must remain unchanged after September 11th; American laws should protect every individual from the tyranny of the majority.


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Pierre Troublion - 12/19/2001

Mr. Mirkin makes some good points, but "doing nothing" applies not only to the "the past 8 years", but to the earlier "New World Order" of 1990-1992 as well. That was when the U.S. walked away from the rubble of Kabul and Baghdad leaving messes behind that have come back to bite us. During tough times, everybody needs to do his or her bit, but curtailment of civil liberties ought not to be a cloak hiding or excusing governmental incompetence.


Howard Mirkin - 12/19/2001

I wish these academics would get realistic. This is a war. The enemy are terrorists, who do not deserve any vestige of humanity. It is not a question of innocent until proven guilty if someone is captured in a battle. The only question, and a minor one at that, is how high up is the prisoner in the enemy's hierarchy, and the higher up they are, the more they must be persuaded (Yes, tortured if necessary - because even if they lie, there will be some truths among the lies) by whatever means to divulge what they know to aid our efforts to get rid of them all.
By even being in an organization(s) that has murdered innocents, there is no question of innocence, just how guilty, and that Doc., is where you err.
However, in the case of people suspected of being terrorists, there needs to be probable reason, such as links to known terrorists, participation in organizations that are known to harbor or support terrorists. This does not mean that the reason has to be shouted to the media. There is plenty of time for that.
The main thing is that if a person has done nothing wrong, he should have nothing to worry about.
I believe that the united states government is fully capable of tempering its operations, but that does not mean there will be no mistakes. This is almost inevitable in an imperfect world, but the objective is to protect the people of this country, Americans and legal non-Amricans from terrorist activities.
Have faith Doc., the United States is still capable of toeing that fine gray line, and even if there are a dew mistakes, it is better than doing nothing as was done in the past 8 years.

Howard B. Mirkin
LCDR USN (ret)
Bangkok