While Barack Obama’s Justice Department is deliberating over what to do in the al-Marri case, the same Justice Department is defending Former Defense Secretary Donald Rumsfeld, former Justice Department attorney John Yoo, and other Bush administration officials in civil lawsuits brought by Jose Padilla.
Both Padilla and al-Marri were arrested on American soil, treated as enemy combatants in the war on terrorism, and detained for years in a military dungeon in South Carolina. Padilla is an American citizen and al-Marri is a citizen of Qatar.
The Fourth Circuit Court of Appeals upheld the enemy-combatant doctrine in both cases, denying the habeas corpus relief sought by both men. When Padilla appealed to the U.S. Supreme Court, the Justice Department quickly shifted positions and converted Padilla to a criminal-court defendant. That made Padilla’s appeal moot, which deprived the Supreme Court from ruling on the matter. Thus, the Justice Department’s clever piece of legal maneuvering left the Fourth Circuit’s decision upholding the government’s enemy-combatant power intact, thereby empowering the government to apply it to all other Americans.
Padilla was then prosecuted in federal district court on terrorism charges, convicted, and sentenced to serve time in a federal penitentiary. Of course, one of the ironies is that supporters of the war on terrorism continue to tell us, with straight faces, that the federal courts cannot handle terrorism cases.
Meanwhile al-Marri has appealed his continued detention as an enemy combatant to the Supreme Court, where the government’s brief is pending. President Obama has ordered a review of the case.
Padilla wasn’t finished, however. He filed a 43-page civil lawsuit in federal court in Charleston against several U.S. officials, including former Defense Secretary Donald Rumsfeld, his deputy Paul Wolfowitz, and former Attorney General John Ashcroft, seeking a declaration that was done to him, including torture, isolation, and denial of the procedural protections in the Bill of Rights, was illegal and unconstitutional. Padilla has filed a similar case in San Francisco against Yoo, who authored or co-authored some of the infamous torture memos.
At a hearing today in Charleston, Barack Obama’s Justice Department will ask a federal magistrate to dismiss Padilla’s case against Rumsfeld and others. Next week, it is expected to do the same in the case against Yoo. In its legal brief in support of its motion to dismiss, the Justice Department states that “adjudication of the claims pressed by [Padilla] in this case would necessarily require an examination of the manner in which the government identifies, captures, designates, detains, and interrogates enemy combatants” and that a Padilla victory “would strike at the core functions of the political branches, impacting military discipline, aiding our enemies, and making the United States more vulnerable to terrorist attack. ”
So, where does all this leave us?
Unless the Supreme Court reverses the Fourth Circuit Court of Appeals and expressly strikes down the enemy combatant doctrine, under the current state of the law the president, along with the military, have the authority to round up any Americans they choose, including critics, dissidents, newspaper editors, and the like as enemy combatants. As I have repeatedly emphasized over the years, this power constitutes a revolutionary change in the relationship between government and citizen. The power to round up people and incarcerate them indefinitely as enemy combatants, denying them right to counsel, trial by jury, and other due process rights, constitutes the ultimate power that any government can have over its own citizens. It is impossible to reconcile such power with the principles of a free society.
But it get worse. If the Justice Department succeeds with its motions to dismiss Padilla’s civil lawsuits, it will mean that the government will not only have the power to take people into custody and hold them as enemy combatants. It will also mean that the government will be empowered to treat them any way it wants, with impunity. Waterboarding, isolation, sensory deprivation, and sexual abuse and humiliation. It will all be available for use against American citizens taken into custody as enemy combatants because there will be nothing the citizen will be able to do about it. Any lawsuits he later files for what was done to him will be thrown out of court as a threat to national security and to the waging of the perpetual war on terrorism.
While it’s true that Americans will still have the right to file a petition for writ of habeas corpus, such right will be fairly meaningless. After all, don’t forget that Padilla’s and al-Marri’s detention as enemy combatants was upheld by the Fourth Circuit as part of their petition for habeas relief. Once the right crisis occurs and the round-ups begin, the courts are unlikely to second-guess the government’s determination as to who is an enemy combatant and who isn’t, as both al-Marri and Padilla discovered. (As Obama’s chief of staff Rahm Emmanuel put it so aptly, “You never want a serious crisis to go to waste. And what I mean by that is an opportunity to do things you think you could not do before.”)
So, while we continue focusing on the ever-increasing infringements on economic liberty at the hands of the Obama regime, let us not forget that such infringements pale in significance compared to the power to round up people, torture and sexually abuse them, incarcerate them for the rest of their lives, deny them access to friends and family, and deny them the due process protections of the Bill of Rights.