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Hornberger's Blog is a daily libertarian blog written by Jacob G. Hornberger, founder and president of FFF.
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Bush, Musharraf and Enemy Combatants


We mustn’t forget one of the most important aspects of the Musharraf crackdown in Pakistan — that the post-9/11 “enemy combatant” doctrine assumed by President Bush and the Pentagon empower the feds to conduct the same types of “emergency” round-ups and incarcerations here in the United States that Musharraf is conducting in his country. Plus don’t forget that Bush and the military also wield the power to torture and sexually abuse detainees, even though they falsely deny exercising such power.

“No way!” some naïve Americans might exclaim. “America is different from Pakistan. Here we have freedom of speech and freedom of protest. There is no way that Bush and the military could round up and incarcerate protestors, dissidents, lawyers, government critics, and newspapers editors, as Musharraf is doing. After all, this is America we’re talking about, not Pakistan.”

Well, that was pre-9/11 America. Like it or not, in post-9/11 America the president and the Pentagon wield the card that trumps freedom of speech and freedom of protest. That card is the “enemy combatant” card. It empowers the president and the military to label any number of Americans as “enemy combatants” and treat them accordingly.

Suppose some American political dissidents find themselves labeled as enemy combatants and carted off to some secret CIA center in the dead of night. As they are being tied down to the water board, they exclaim, “You can’t do this to me. I’m an American. I have the right under the First Amendment to criticize President Bush and his policies. I have my rights!”

The federal agent would simply respond, “Well, of course you have your rights. But we have our rights too. And among our rights is the right to label you an enemy combatant. Just ask the Fourth Circuit Court of Appeals, the most conservative court in the country. Now, stop your chattering, take off your clothes, lie down on the water board, and start drinking.”

How did the president and the Pentagon acquire their enemy combatant power? Did they secure a constitutional amendment to acquire it? No. After the 9/11 attacks, they simply declared that they now possessed such power. Then they later got a terrified and intimidated Congress to ratify it. They cowed a frightened American public into accepting it.

So, if President Bush and the Pentagon have the same round-up powers that Gen. Musharraf and his military goons have, why aren’t we witnessing round-ups here in the United States? Because they isn’t a sufficiently serious terrorist “emergency” here, yet, as Musharraf says there is in Pakistan.

What’s important to keep in mind is that dictatorship doesn’t depend on the exercise of dictatorial powers but rather the possession of dictatorial powers. The fact is that given the right “emergency,” such as some coordinated terrorist strikes across the United States, the president now wields the same powers of round-up (plus the powers of torture and sex abuse) that military general Musharraf wields against his people.

What about habeas corpus? Americans could still file a petition for writ of habeas corpus to challenge their detention, assuming that they would be able to contact a lawyer. But don’t forget that the government’s position is that a federal judge in a habeas corpus proceeding should not second-guess the president’s enemy-combatant determinations. Therefore, the evidentiary requirement to uphold the president’s enemy combatant detentions is likely to be quite low in habeas corpus hearings, especially during a terrorist “emergency.”

Don’t forget also that in an “emergency,” a terrified and intimidated Congress would likely do to Americans what it did to foreigners — remove the jurisdiction of the federal courts to consider habeas corpus petitions in terrorism cases. In an “emergency,” it will likely be “bye, bye habeas corpus” for Americans, as it has been for foreigners.

Lest anyone think that President Bush would hesitate to conduct such enemy combatant roundups if he felt that national security was at stake, just look at his conduct in Iraq, where some 28,000 Iraqis are held in detention without trial. Even worse, as conservative columnist Robert Novak reports, Bush is even ignoring the orders of judges to release Iraqi detainees.

Is Bush a kinder dictator than Musharraf? Americans would certainly say so but probably not the Iraqi people. Who can tell what could happen in an “emergency” where “national security” is at stake? Don’t forget that there are still many conservatives and neo-cons who still idolize Chilean military strongman Augusto Pinochet, who rounded up, tortured, sexually abused, and killed thousands of Chilean citizens who he and his military goons considered enemy combatants.

The best hope there is if the American people, including the men, conquer their silly fears about “the terrorists” and finally recognize what our American ancestors understood: that the biggest threat to our rights and freedoms lies with our very own government officials. That is, in fact, what the Bill of Rights is all about — protecting us not from “the terrorists” but instead from the feds. That’s why the feds hate the Constitution and the Bill of Rights and do everything they can to circumvent and ignore them. They know that these documents serve as constant reminder of the danger that the federal government poses to the freedom and well-being of the American people.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and 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. View these interviews at LewRockwell.com and from Full Context. Send him email.