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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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Waging the War on Terrorism on American Soil


A logical consequence of having permitted the Bush administration to treat terrorism as either an act of war or a criminal offense, came to the forefront last week when the New York Times revealed that top administration officials were considering deploying troops here in the United States to take suspected terrorists into custody as “enemy combatants.” The suspected terrorists were part of a group that came to be known as the Lackawanna Six.

Even though Bush ultimately decided against the move, instead relying on the FBI to handle the matter, the fact that it was even being considered reveals the revolutionary change in our structure of government as a result of the so-called war on terrorism.

Terrorism is a federal criminal offense. It is denominated as such in the federal criminal code. That’s why suspected terrorists have been indicted by federal grand juries and tried in federal district court. These have included Zacharias Moussaoui, Timothy McVeigh, Ramzi Yousef, Jose Padilla, and many others.

So, how did it come to be that the Bush administration even considered using military troops to arrest people here in the United States suspected of terrorism? Isn’t that the type of thing that occurs in places like Latin America, Burma, and China? Doesn’t the United States use the cops, not the military, to enforce criminal laws?

The answer lies in the revolutionary action that Bush administration officials took in the wake of the 9/11 attacks. They simply declared that from that day forward, U.S. officials would have the option of treating this particular federal criminal offense — terrorism — as either a federal crime or as an act of war, at their option.

It is impossible to overstate the difference between how a person is treated, depending on whether federal officials decide to treat him as suspected criminal or as an enemy combatant in the war on terrorism.

If he’s treated as a criminal defendant, he is accorded all the protections of the Constitution and the Bill of Rights — habeas corpus, grand jury indictment, protection from unreasonable searches and seizures and coerced confessions, right to counsel, trial by jury, due process of law, and protection from cruel and unusual punishments.

If U.S. officials, however, opt to treat him as an enemy combatant, their position has been that he is entitled to none of those protections. After all, they tell us, we are at war, where constitutional niceties don’t apply. Thus, those suspected terrorists who have the bad fortune of being sent down the enemy combatant road are subject to military custody, Guantanamo, torture, rendition, kangaroo tribunals, and indefinite detention, even in the unlikely event they are acquitted.

And it’s because of the power that George W. Bush was permitted to exercise in the environment of fear following the 9/11 attacks — the power to unilaterally declare that a federal criminal offense — terrorism — was now also an illegal act of war.

Given that declaration, how can it surprise anyone that Bush administration officials contemplated deploying U.S. troops to take suspected terrorists into custody here in the United States? Isn’t it the job of the military to wage war?

Let’s not forget, after all, that according to the war-on-terrorism paradigm, the entire world is a battlefield. Not just Iraq, Afghanistan, Yemen, and Pakistan. The entire world also includes the United States.

While the Bush administration decided against using the troops to take the Lackawanna Six people into custody, the discomforting fact is that he didn’t have to go that route. Under the war-on-terrorism paradigm that now controls the United States — a paradigm that permits U.S. officials to treat terrorism as an act of war — Bush could easily have gone the other way, and the troops would have loyally obeyed his orders.

All that is what has come with the power to treat what has historically been a federal criminal offense as an illegal act of war, at the option of federal officials. The federal power to send the military sweeping across our land to investigate and arrest suspected terrorists is now as much a part of American life as the military power to arrest, torture, and indefinitely detain American citizens as illegal enemy combatants in the war on terrorism.

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.