Hornberger's Blog

Hornberger's Blog is a daily libertarian blog written by Jacob G. Hornberger, founder and president of FFF.
Here's the RSS feed or subscribe to our FFF Email Update to receive Hornberger’s Blog daily.

The Nullification of the Bill of Rights


Last Friday the U.S. Supreme decided to hear the Ali al-Marri case, about which we have written extensively during the past several years. See my November 25 blog post entitled “The al-Marri Case Affects Us All,” which includes links to most of the commentaries we have published on the al-Marri case.

The case involves the power of the U.S. government, including the U.S. military, to seize anyone and everyone, both foreigners and Americans, as “enemy combatants” in the “war on terrorism” and treat them accordingly — i.e., torture and sex abuse, waterboarding, isolation, sensory deprivation, stress positions, etc.

How long can such treatment last? Forever because that is how long the “war on terrorism” is going to last, especially since the “war on terrorism” generates an endless supply of terrorists.

When someone is designated an “enemy combatant” in the “war on terrorism,” the government no longer needs a criminal indictment against him. There is no jury trial. The military now has the authority to round up anyone and everyone, put them in a military dungeon or concentration camp, and throw away the key.

If a prisoner is lucky enough to contact a lawyer who files a habeas corpus petition, all that the government must do at the hearing is produce some evidence to sustain its finding of “enemy combatant.” Once that evidence is produced, federal judges are extremely unlikely to second-guess the government’s determination, especially in the midst of a big crisis when “national security” is at stake and the government is representing to the judge that the people they have in custody are dangerous enemies of the United States.

Make no mistake about it: The troops will carry out their orders, faithfully and obediently. In their minds, obedience of the orders of their commander in chief fulfills their oath to support and defend the Constitution. The last thing the troops are going to do is buck the president when “enemy combatants” in the “war on terrorism” are threatening the “national security” of the United States in the midst of a big crisis.

It’s important to recognize how U.S. officials accomplished this revolutionary transformation in American law, without even the semblance of a constitutional amendment. They simply declared a criminal offense — terrorism — to be an “act of war.” By doing so, they enabled themselves to avoid the application of that portion of the Bill of Rights that accords people fundamental procedural protections in federal criminal cases.

The Framers used the Constitution to bring the federal government into existence, with the understanding that government officials would prosecute people for crimes. But they also understood that throughout history government officials had the propensity to incarcerate and punish people for doing such things as criticizing or opposing the government.

To protect people from government abuse in the federal prosecution of crimes, our American ancestors demanded passage of the Bill of Rights. The Fourth, Fifth, Sixth, and Eighth Amendments enumerate specific rights and guarantees that the federal government is required to honor with respect to the federal criminal justice system. Those rights and guarantees have protected people in federal criminal prosecutions since the ratification of the Bill of Rights in 1791.

But with its post-9/11 declaration that terrorism could now be considered either an act of war or a federal crime, federal officials took a fateful step, one that gave them the power to void the Bill of Rights for people whom the government chose to treat as “enemy combatants” in “war.”

Given the government’s discretionary power to treat terrorism as either an act of war or a criminal offense, it would be difficult to find a better example of a flagrant violation of the principles of the “rule of law” and “equal treatment under law.” Two people accused of the same conspiracy to commit terrorism can now be treated in two entirely different ways, at the discretion of federal officials.

While Ali Al-Marri is a foreign citizen, the principles applied in his case will apply to Americans as well. Thus, if the government wins in the al-Marri case, it will not only have the power to arbitrarily arrest and incarcerate Americans of foreign origin, as it did to Japanese Americans in the crisis of World War II — it will have the power to round up any and all Americans, regardless of national origin. And it will have the power to do so right now and forever as part of its ongoing, never-ending “war on terrorism.” That’s why every American who is committed to the principles of a free society should be extremely concerned with the outcome of the al-Marri case.

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.