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No Right to Counsel in the War on Terrorism


The feds have figured out another way to use the war on terrorism as a way to avoid the Constitution, specifically the Bill of Rights. This time, it’s the Sixth Amendment’s guarantee of effective assistance of counsel that falls by the wayside.

Keep in mind that the president no longer complies with the Constitution’s requirement that Congress must declare war before the president can wage war. Ever since World War II (when FDR sought a declaration of war from Congress after the Pearl Harbor attack, as the Constitution required him to), presidents have simply ignored the Constitution in this regard. Hardly anyone — libertarians being the big exception — has cared. After all, it’s only one constitutional requirement that’s being ignored, right?

After 9/11, the president and Pentagon declared war on terrorism, which they said gave them the prerogative of avoiding constitutional restraints on their power. This was war, they said, and nothing can interfere with the president’s omnipotent military powers to wage the war.

What was interesting about this war was that it involved what had traditionally been a criminal offense — that is, terrorism (which still is a criminal offense in the U.S. Code), which they simply converted into an act of war, at their option.

Those suspected terrorists who are treated as criminal defendants receive the guarantees of the Constitution and the Bill of Rights.

Those who are labeled enemy combatants get kangaroo military tribunals, indefinite incarceration, denial of speedy trials, torture, and sometimes even extra-judicial execution.

Then came the power to assassinate. The president, the CIA, and the Pentagon now claim the authority to assassinate anyone they want, including Americans, because, they say, in the war on terrorism the entire world, especially the United States, is the battlefield.

Thus, while they seem to acknowledge that they’ve got to go to a judge to get a warrant to search a person’s home, they can simply kill the person with a bullet or a drone missile attack without any judicial review whatsoever.

And now, they’ve come up with a clever little bureaucratic trick to ensure that the Americans (and others) who they target for assassination, torture, or incarceration cannot receive the benefit of counsel.

Without any constitutional amendment — indeed, without even a law enacted by Congress — the Treasury Department has issued regulations barring attorneys from representing specially designated terrorists without first securing a license from the Treasury Department. If an attorney represents such a terrorist without the special license, they’ll criminally prosecute him — and possibly even deny him the assistance of counsel.

As an aside, keep in mind that the Treasury Department is the agency responsible for issuing licenses to Americans who wish to travel to Cuba and spend money there. In other words, notwithstanding the fact that the rights to travel and spend one’s own money are fundamental rights, an American must ask for a license from his own government before he can exercise them. That’s what statists call freedom — the freedom to ask for permission to exercise fundamental rights.

And now they’ve done the same with the right of criminal suspects to have an attorney represent them before they’re murdered, tortured, incarcerated, or otherwise punished by the government.

Why do the feds hate criminal defense attorneys? Criminal defense attorneys are obstacles to illegal conduct on the part of the government. They ensure that the government is not only following the law but also that it’s not using perjured or manufactured evidence to convict people who the feds are convinced are guilty.

The government often wrongfully accuses people of crimes. It makes mistakes, and it sometimes even targets people who are innocent, manufacturing or planting evidence to establish guilt.

Moreover, keep in mind that everyone is supposed to be presumed innocent until proven guilty beyond a reasonable doubt in a court of law. The government wants to avoid that important step and simply have its accusation be conclusive.

Criminal defense attorneys serve as obstacles to a government running roughshod over the citizenry. That’s why they are so hated and resented not only by U.S. officials but also officials in China, North Korea, and Cuba.

Our American ancestors knew that the federal government would attract the types of people who would run roughshod over people. That’s why they included the following provision in the Sixth Amendment: “In all criminal prosecutions, the accused shall … have the Assistance of Counsel for his defence.”

Like so many other constitutional constraints, the feds are now avoiding that one. It’s just another sad and ominous legacy of 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.