Collateral Damage and Rule of Law – Does The End Always Justify The Means?
“Freedom and the dignity of the individual have been more available and more assured here than in any other land on earth. The price for this freedom at times has been high, but we have never been unwilling to pay that price. … I do not believe in a fate that will fall us no matter what we do. I do believe in a fate that will fall on us if we do nothing.”
Ronald Reagan
“But a Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever.”
John Adams
1776 and Onwards – The Early Days of The United States
Since the days of Massachusetts lawyer John Adams, the Declaration of Independence, the Constitution of the Commonwealth of Massachusetts and the U.S. Constitution, the U.S. has prided itself on being a nation of laws (not men) and based on the “rule of law”. Does “rule of law” include any law? Does it matter if people know of the law? Does it matter if a law is unjust? Does it matter if the law has unforeseen consequences? It would be interesting to hear the views of John Adams on these questions.
The United States of 2011
The IRS witch hunt is inflicting far more pain on innocent people than it is successful in combating tax evasion. The IRS is threatening to take the life savings of hard working U.S. ex pats who had no knowledge of FBAR. The FBAR requirement is arguably a gross invasion of the privacy of American citizens. Yet as long as the U.S. government believes that it could be remotely helpful in finding terrorists, it justifies this assault on hard working Americans, whose only sin is to have a foreign bank account and save for retirement. The U.S. government is of the view that it is more important that guilt be punished than innocence protected.
The Patriot Act has destroyed the freedom and mobility of millions of innocent Americans. Yet as long as it is seen to be in any way helpful in impeding terrorism, the U.S. government believes it is justified. Osama Bin Laden was successful in destroying the American ideal. The Government of The United States stole the freedoms of the American people – freedoms that two world wars were fought for – under the guise of protecting the country from terrorism.
Clearly it is more important that guilt be punished than innocence protected.
In the invasion of Iraq the U.S. forces created conditions which allowed for the looting of some of the oldest and most important museums in the world. The position of the U.S. government was that “things happen” and that the looting of the museums was collateral damage (as was the damage to Iraqi civilians).
Clearly it is more important that guilt be punished than innocence be protected.
What Would John Adams Think?
Well, we don’t know for sure. That said the following story does provide some insight into the principles that the U.S. constitution was founded on.
“The Boston Massacre case demonstrates John Adams’s deep and abiding respect for a legal system based on the rule of law. For in this case, John Adams was requested to – and did – defend British soldiers who had fired into a mob of unruly colonists.
Events began on March 5, 1770, when tensions were high between the colonists and the armed British soldiers stationed in Boston. That evening, a dispute between a British sentry and a colonist led to the gathering of a disorderly crowd of colonists which, eventually, confronted Captain Thomas Preston and eight British soldiers.
When the volatile crowd refused orders to disperse and threw objects at the soldiers, the soldiers shot into the crowd, killing five colonists, including Crispus Attucks. Captain Preston and the soldiers were arrested.
The following day, John Adams was asked to defend Captain Preston and the soldiers from anticipated indictments. Adams agreed. Though committed to freedom from British tyranny, he believed that those accused deserved a proper defense. Adams’s decision to defend the accused was particular noteworthy as other patriots, including his cousin Samuel Adams and Paul Revere, who invoked what they now named the “Boston Massacre” to inflame anti-British sentiments.
Captain Preston’s trial was held first, from October 24-30, 1770. Adams’s strategy was to challenge the prosecution’s claim that Preston had ordered his soldiers to fire. Adams succeeded, and the jury acquitted Preston.
The subsequent trial of the eight soldiers was transcribed and published. After calling over forty witnesses, Adams gave an “electrifying” closing argument in which he argued that the soldiers had acted in self-defense when facing a mob. He further contended that because the evidence was unclear as to which soldiers had fired, it was better for the jury to acquit all eight defendants than mistakenly to convict one innocent man. “The reason is, because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished.”
The jury acquitted six soldiers and found two guilty of manslaughter; those two had been clearly proved to have fired shots.
For his role in the trials, Adams received serious public criticism and lost a substantial portion of his law practice. Later, he would write:
The part I took in defense of Cptn. Preston and the Soldiers, procured me anxiety, and obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country. Judgement of death against those soldiers would have been as foul a stain upon this country as the executions of the Quakers or Witches, anciently. As the evidence was, the verdict of the jury was exactly right.
As reflected in observations of the Writs of Assistance case and his own role in the Boston Massacre trials, Adams had a passionate commitment to the rule of law and the right of all to fair proceedings. These passions would guide Adams as he developed and articulated his philosophy of a government based on laws not men.
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