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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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Padilla and Mubarak


A federal judge in South Carolina has dismissed a civil suit brought by convicted terrorist Jose Padilla against Defense Secretary Robert Gates, former Defense Secretary Donald Rumsfeld, and other U.S. officials. The judge held that Padilla had no right to recover for constitutional violations arising out of three years of military detention and torture.

Why should this matter to the American people? Because the ruling applies not only to Padilla, who is an American citizen, it applies to all Americans. That’s why the government has been resisting Padilla’s suit so vehemently. If Padilla won, the government would be precluded from exercising such powers against Americans generally.

Here is the practical effect of the ruling: The U.S. government wields the post-9/11 power to take any citizen into custody by simply labeling him an “enemy combatant” in the “war on terrorism.” The military can keep the American in custody as long as it wants, even for life. The military can also torture the prisoner, including subjecting him to what is commonly known as “touchless torture.” That’s where the prisoner is deliberately kept in isolation with the intent of causing him permanent mental damage. That’s what they did to Padilla. That’s what they can do to any American.

The American prisoner can still file a petition for a writ of habeas corpus, but if the government provides a relatively small amount of evidence to establish that the American has ties to terrorism, the petition will be denied.

There is always the possibility that the military might decide to turn the American over to the federal civilian authorities for criminal prosecution, given that terrorism is still a criminal offense under the U.S. Code. That’s what they did with Padilla after the military imprisoned him without a trial and tortured him for some 3 years. That’s where he was convicted of terrorism — in federal district court. He was suing for the unconstitutional treatment he was subjected to by the military branch of the federal government prior to being turned over to the civilian branch for criminal prosecution.

Even if an American citizen is accorded the federal court route (along with the standard constitutional protections), however, the military has the ultimate say over whether he will be released. The military has the power to ignore the federal jury’s verdict of acquittal and take (or retake) the American into custody as an “enemy combatant,” keep him incarcerated indefinitely, and torture him.

There is nothing Americans can do about any of this. That’s one of the things the 9/11 attacks achieved for the U.S. military. As that federal judge in South Carolina has shown with his ruling, American officials, including those in the military, are empowered to treat Americans as “enemy combatants,” incarcerate them indefinitely, and torture them, with impunity and immunity.

Ironically, the judge’s ruling comes in the wake of the ouster of Egyptian president Hosni Mubarak as dictator of Egypt.

One of the persistent demands that the Egyptian people made of Mubarak was the lifting of the Egyptian government’s 30-year-old, “temporary” emergency anti-terrorist legislation, which empowered the Egyptian dictator and his military to take Egyptian citizens into custody as suspected terrorists, incarcerate them indefinitely, and torture them.

While the Egyptian people rightfully recognize such powers as attributes of tyranny and dictatorship, U.S. officials continue to maintain that such powers are actually pro-freedom devices designed to keep people safe.

How ironic is that!

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.