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The Fourth Circuit’s Ominous Decision


Led by conservative judges, the Fourth Circuit Court of Appeals has just affirmed the Bush administration’s “enemy combatant” doctrine, a doctrine that allows President Bush and his military forces to designate anyone anywhere in the world as an “enemy combatant” in the so-called war on terrorism and treat him accordingly. While the case that the Court was deciding involved a foreigner, Ali al-Marri, the Court’s reasoning applies to American citizens as well.

Al-Marri is a citizen of Qatar. He was under federal court indictment for terrorist-related charges and actually preparing for trial under the principles of the Constitution, the Bill of Rights, and the U.S. federal court system. Before the trial was permitted to begin, U.S. officials yanked Al-Marri out of the federal court system and sent him into the clutches of the U.S. military. The government took the position that ever since 9/11 it had the power to treat suspected terrorists in one of two alternative ways — as a federal court defendant or as an “enemy combatant.” While they initially chose the first route with al-Marri, they ended up employing the second route.

The Fourth Circuit Court of Appeals has now upheld the government’s position and the government’s actions. That means that the president and the Pentagon now wield the same power wielded by totalitarian and authoritarian regimes around the world: the power to sweep into neighborhoods across the land and arbitrarily take citizens into custody as “enemy combatants.” After all, don’t forget the government’s argument, an argument that has now been upheld by a federal court of appeals: In the global war on terror, the entire United States is part of the battlefield.

Do people taken into custody by the military have any recourse? Yes, but it is extremely limited. They still have the right to file a petition for writ of habeas corpus to challenge the government’s designation of them as “enemy combatants.” But as soon as the government provides some evidence indicating that the detainee is a terrorist, then the government’s detention of him will be upheld and the courts will sustain the detention. And don’t forget the government’s argument: that in “war” the courts should defer to the wartime decisions of the commander in chief and his military.

Prior to 9/11, terrorism had always been considered a criminal offense. In fact, it’s still on the federal statute books as a criminal offense. That’s why, for example, terrorists such as Ramzi Yousef (the 1993 WTC terrorist), Timothy McVeigh (the Oklahoma City terrorist), and Zacharias Moussaoui (the 9/11 terrorist) were prosecuted, convicted, and sentenced in federal district court.

After 9/11, the president unilaterally adopted a new order of things here in the United States, without even the semblance of a constitutional amendment. From that point on, the president and the Pentagon would have the option of treating suspected terrorists, including Americans, as “enemy combatants” and treating them accordingly. Soon afterward, they established their torture and sex abuse camp for suspected terrorists in Cuba and later took an American citizen, Jose Padilla, into military custody as an “enemy combatant.”

Will Americans be concerned about the al-Marri decision? Not likely. Most of them will continue their sheep-like or ostrich-like way of life. The reason is that since the president and the military aren’t arresting Americans en masse and carting them into concentration centers, the standard attitude is, “Why worry?”

But if there is another big terrorist attack, then it is a virtual certainty that Americans will get to witness the full exercise of the power that has now been sustained by the Fourth Circuit. Orders for round-ups will be issued, and the troops will loyally and obediently follow those orders. In the midst of the fear and panic generated by such an attack, American sheep, both male and female, will not object to the round-ups of hundreds or thousands of American “terrorists” and “terrorist sympathizers.” For the sheep, the fear of being among those rounded up will be worse than the fear of “the terrorists.”

How will the Pentagon treat American “enemy combatants” in such a “crisis”? Well, just ask John Walker Lindh and Jose Padilla, two Americans who were tortured after being arrested. The fact is that U.S. personnel, both in the CIA and the military, view American “enemy combatants” in a much worse light than foreign “enemy combatants” because of the traitor aspect.

Given the decision in al-Marri, the government’s torture and sex abuse policy and its rendition policy now become more important for Americans. There is absolutely no reason that U.S. officials cannot treat American “enemy combatants” the same way they treat foreign enemy combatants. And everyone knows by now what they do to people they think are foreign “enemy combatants.”

Isn’t it amazing how the embrace of an imperial foreign policy can wreak such major changes in life at home? The president and his military go abroad and poke hornet’s nests. The hornets finally strike back. The retaliation enables the president and the military to revolutionize America’s judicial system through the unilateral assumption of omnipotent power over the citizenry by the president and the military. The courts uphold the assumption of power on the ground that the U.S. is now at “war” with the hornets, which attacked in the first place because the president and the military were poking their nests.

When will ordinary Americans finally start fighting back? When will they finally begin defending their own fundamental rights and liberties? When will they conquer their fears of both the government and “the terrorists”? When will they stop falling for the lies and deceptions? When will they finally begin behaving like men and women and not like sheep?

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.