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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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The Military Has the Authority to Nudify You Too


In the controversy over the U.S. military’s decision to nudify Bradley Manning, I suspect that most Americans have not yet come to the realization that U.S. military forces have the authority to do the same thing to each and every American. It’s simply one part of the revolutionary transformation of American life, one in which the military now has the dominant, controlling position over the citizenry, who now are in the subservient position.

Consider, for example, a jury trial in federal district court in which an American citizen is being prosecuted by federal prosecutors for terrorism. The prosecutors put on their case, which is then given to the jury. The jury decides that there is insufficient evidence to establish guilt beyond a reasonable doubt, and acquits the accused.

Is that the end of the story? Does the person’s acquittal mean that he walks out of the courtroom a free man? Does the double jeopardy clause of the Fifth Amendment preclude him from being punished again for the same offense?

The answer used to be “yes” to all three questions.

Not anymore. The U.S. military now has the dominant, controlling power over the federal judiciary. The military can now ignore and disregard the verdict of acquittal from a federal jury and an order of discharge by a federal judge. The military can take the person into custody before he leaves the courtroom and take him to a military prison, where he can be treated as an “enemy combatant” in the “war on terrorism.” That, of course, can mean indefinite detention, torture, including waterboarding and sensory deprivation, and forced nudity.

Yes, this applies to you and every other American. We now live in a country in which the military, pursuant to orders from the commander in chief, has the authority to arrest and round up Americans as suspected terrorists, transfer them to a military dungeon or concentration camp for life, torture them, and nudify them.

While Americans, like foreigners, still have the right to petition a court for a writ of habeas corpus, all the government has to do is provide a modicum of evidence establishing ties to terrorism and the petition will be denied. When it comes to “national security” and the perpetual “war on terrorism,” federal judges are deferring to the military, just like they do in other countries where the military plays a dominant role in society.

A few weeks ago, a federal district court dismissed a civil lawsuit brought by the American citizen Jose Padilla against U.S. officials. The suit alleged that the U.S. government, operating through its military, had no lawful authority to treat Padilla or any other American as an “enemy combatant” in the “war on terrorism,” including indefinite detention, torture, and denial of trial by jury, speedy trial, and due process of law.

The government opposed Padilla’s suit with extreme vehemence, just as it opposed Padilla’s habeas corpus actions when he was being held as an “enemy combatant.”

Why was the government fighting the Padilla case with such vehemence? Because the government knew that if it could prevail in the Padilla case, the ruling would apply to all Americans, not just Padilla, thereby effecting a revolutionary transformation in the historical relationship between the military and civilian in American life.

As people in Egypt have discovered, the power of the government to spy on people, take them into custody, torture them, and incarcerate them indefinitely is the hallmark of a tyrannical government. As you may know, the Mubarak dictatorship justified such powers under the war on terrorism and the war on drugs. The government assumed such powers during a crisis or emergency when the president of Egypt was assassinated 30 years ago. While the powers were supposed to be temporary, they are still in existence three decades later.

Interestingly and revealingly, the U.S. government supported the Mubarak dictatorship for those 30 years, including with cash and military armaments. The support came from not just the president and the Congress but also from the Pentagon, which worked closely with the Egyptian military and even provided training for Egyptian military forces. The U.S. military did not provide such training with reluctance. It was provided with conviction and belief that this was the right thing to do to maintain order and stability in the Middle East.

We should also keep in mind that the CIA, the U.S. government’s paramilitary force, also worked closely with the Egyptian dictatorship’s torture team, even retaining the team to torture people on behalf of the U.S. government. That arrangement was, again, not made reluctantly. It was done with the conviction and belief that this was the right thing to do.

Is the U.S. government spying on, rounding up Americans, imprisoning them, torturing them, and nudifying them? Well, we don’t know yet the extent of the illegal NSA-telecom spying. But no, the government is not doing to a large number of Americans what it has done to Padilla and Manning.

What is dangerous, however, is that Americans now live in a country in which their very own government now wields the same types of anti-terrorism powers that the Mubarak’s military dictatorship wielded in Egypt. Even more ominous is the fact that Americans now live in a country whose military showed enthusiastic support for the Egyptian dictatorship, including its military forces.

If another big emergency or crisis arises here in the United States, especially one relating to the war on terrorism or the war on drugs, American might just discover why the Founding Fathers opposed standing armies and militarism and why they enshrined the Fourth, Fifth, Sixth, and Eight Amendments into the Bill of Rights.

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.