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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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The al-Marri Case Affects Us All


Today the U.S. Supreme Court decides whether to consider what is quite possibly the most important legal case in our lifetime. While the case involves a foreign citizen, Ali al-Marri, its outcome affects the freedom of every single American, especially those who wish to maintain the freedom to criticize the policies of the federal government in the future, especially during periods of crisis.

An editorial in today’s New York Times and an op-ed in today’s LA Times call on the Supreme Court to accept the case and to rule in favor of al-Marri. I highly recommend reading both articles.

In the last seven years, FFF supporters might have asked themselves, “Why has FFF taken a leading role in the defense of civil liberties? ” The al-Marri case provides a good answer to that question: Because the achievement of a free society will be extremely difficult if the government power at issue in the al-Marri case is upheld. That’s why we have repeatedly addressed the al-Marri case for the last five years:

Crossing the Rubicon” (2003) by Jacob G. Hornberger
Pentagon Learns About the Sixth Amendment” (2004) by Jacob G. Hornberger
Ali Saleh Kahlah al-Marri: Charge Him or Release Him” (2005) by Jacob G. Hornberger
How the “Enemy Combatant” Label Is Being Used.” (2005) by Jesselyn Radack
Foreign Policy Threatens Our Freedom” (2005) by Jacob G. Hornberger
Bush’s Tyranny Thwarted – For Now” (2007) by Sheldon Richman
A Federal Inanity in the Fourth Circuit” (2007) by Jacob G. Hornberger
The Enemy Combatant Attack on Freedom” (2008) by Jacob G. Hornberger
The Fourth Circuit’s Ominous Decision ” (2008) by Jacob G. Hornberger
The Pentagon’s Bizarre “Judicial” System” (2008) by Jacob G. Hornberger
Crossing the Rubicon, Revisited” (2008) by Jacob G. Hornberger

The al-Marri case involves the power of the military to take any American — repeat any American, including newspaper editors, government critics, and dissidents — into custody and imprison him for the rest of his life as an “enemy combatant” in the “war on terrorism.” No grand jury indictment. No bail. No trial by jury. Just indefinite imprisonment in a military dungeon or prison camp and the possibility of being tortured or abused.

The assumption of such power, if upheld, would constitute one of the greatest transformations of power and liberty in American history. It would fortify the federal government’s position as master and that of the citizens as servants.

While Americans who were rounded up could still file petitions for a writ of habeas corpus, all that the government would have to do at the habeas corpus hearing is provide a bit of evidence establishing the person’s ties to terrorists. Upon the presentment of such evidence, the habeas corpus petition would be denied because there is no way that a judge is going to challenge the president and the Pentagon on military matters, especially during some big crisis involving “national security.”

Of course, a habeas corpus petition assumes that the military is going to let multitudes of “enemy combatants” contact their lawyers. How likely is that in the midst of a big crisis?

Why should Americans be concerned? After all, it’s just a foreigner they’re doing this to, right? Well, not exactly. They also did it to a man named Jose Padilla, who is an American. The point is this: If the power to do these things to al-Marri and Padilla is upheld, the power will automatically extend to all Americans.

One might be tempted to say, “Oh, there’s nothing to be concerned about. They’re only doing it to one or two people. It’s not like they’re rounding up hundreds or thousands.”

That’s not the way these types of tyrannical powers generally work. When they come into play is when there is a big crisis or emergency, when people are fearful and will support whatever the government is doing. At that point — in the midst of some big crisis — is when President Obama and the Pentagon would be most tempted to employ the powers they acquired in the al-Marri and Padilla cases.

And at that point, it will be too late for people to say, “Gosh, I sure hope this is stopped” because those who will be saying that will be in immediate danger of being among those being rounded up.

There are those who might be tempted to say, “But, golly, that could never happen in the United States.” They’re wrong. After all, don’t forget that it was our very own government that rounded up Japanese Americans and incarcerated them in the midst of a big wartime crisis. And don’t forget that there were officials in our very own government who supported the round up, torture, and execution of government critics and dissidents by military dictator Augustine Pinochet in Chile in the midst of a crisis.

Would U.S. troops obey orders to round up Americans? Of course they would, especially in the middle of big crisis. After all, how many U.S. soldiers have refused to participate in the jailing of al-Marri and Jose Padilla? How many have protested against such actions? How many of them have protested kidnappings, murders, tortures, and renditions by the CIA and the Pentagon?

The reason they don’t disobey orders or protest is because they put their faith in the president’s judgment, especially when “national security ” is at stake. In the minds of the troops, when they obey the orders of their commander in chief, they’re supporting and defending the Constitution and putting their lives on the line for their country. In the midst of a big crisis, the last thing the troops are going to do is question the president’s judgment on matters relating to war, enemy combatants, and national security.

There is no way a society can be considered free when the government wields the power to round up its citizens, incarcerate them without trial, and even torture them. Such power is the ultimate power in any dictatorship. Such rights as freedom of speech, freedom of the press, the right to keep and bear arms, and the right to trial by jury become meaningless in the face of the power of government to simply go to your home, take you into custody, lock you up, throw away the key, and abuse you.

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.