Hornberger's Blog

Hornberger's Blog is a daily libertarian blog written by Jacob G. Hornberger, founder and president of FFF.
Here's the RSS feed or subscribe to our FFF Email Update to receive Hornberger’s Blog daily.

The Military’s Exalted Position in American Life


The Ninth Circuit’s decision holding John Yoo immune from liability in Jose Padilla’s lawsuit against him pretty much confirms what I recently wrote about the exalted position that the U.S. military and the CIA hold in American society. See here and here.

The Court confirmed that when the cops are dealing with a criminal defendant, they are prohibited from illegally detaining him and torturing him and can be held liable for doing so.

But it’s an entirely different situation when one substitutes the military for the police. In American society, the military is special. They can take criminal defendants into custody, refuse to grant them a trial for years, and torture them. And there isn’t anything the victims can do about it.

Think about that. Under our system of government, the military is allowed to do things to Americans that the cops are prohibited from doing. And while the cops can be held liable for doing such things, the military, along with U.S. officials who authorized or ordered that such things be done to Americans, are immune from liability.

Where in the world does it say that in the Constitution? Doesn’t the Bill of Rights apply to the U.S. government? Aren’t the military and the CIA part of the U.S. government? Where does the Bill of Rights provide an exception to the military and the CIA?

For example, the Fifth Amendment reads in part, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury….” The Sixth Amendment reads in part, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial….” The Eight Amendment reads in part, “…. Nor cruel and unusual punishments inflicted.”

Do you see any exception in those Amendments for the U.S. military and the CIA? Do you see any language that says, “except when it’s the military or the CIA doing these things, in which case it’s all okay”?

No, of course not. That’s because our American ancestors clearly intended to bar the entire U.S. government, not just some sections of the U.S. government, from doing these things to people, including American citizens.

The Court of Appeals observed that things are different with the military because the military labeled Jose Padilla an “enemy combatant” in the “war on terrorism” rather than a “criminal defendant” in a criminal prosecution.

Big deal. So, all the government has to do in the land of the free and home of the brave is deliver a criminal defendant to the clutches of the military, change his designation from “criminal defendant” to “enemy combatant” and the Bill of Rights is nullified.

Yeah, sure, that’s exactly what our American ancestors intended. Too bad they didn’t put that in the Bill of Rights.

It’s all one great big sham, one that federal judges are scared to death to pierce, just as the federal judges in Chile were scared to do when military strongman Augusto Pinochet, whom the U.S. military and the CIA fully supported, was doing the same thing with his military and intelligences forces during his “war on terrorism” and his “war on communism.”

The war on terrorism is just a figure of speech, one that enables the sham to be perpetrated. The fact is that Padilla, along with every other accused terrorist, is a criminal defendant. That’s because terrorism is a federal criminal offense. The only difference is over which federal agency is going to get to prosecute him — the Justice Department or the Department of Defense.

At the risk of belaboring the obvious, the Justice Department and the Defense Department are two different sections of the same government.

If accused terrorist were really enemy combatants in war, why would the military be prosecuting them in kangaroo military tribunals? Everyone knows that in wartime, it’s the job of combatants to kill enemy soldiers and that such soldiers cannot be criminally prosecuted for doing so. When George Patton captured German soldiers at the Battle of the Bulge, were the German POWs prosecuted in kangaroo military tribunals for murder or terrorism? Of course not. In a real war, soldiers are taken prisoner and not prosecuted.

But here we see the U.S. military prosecuting terrorist suspects for the crime of terrorism. That’s what those kangaroo military tribunals in Cuba are for — prosecuting people for criminal offenses relating to terrorism — the same criminal offenses that defendants are prosecuted for in federal court.

Yep, the whole process is a sham, one that conveniently enables the U.S. government to avoid the restrictions provided in the Bill of Rights by simply delivering criminal defendants to the Pentagon, which is held immune from the restrictions of the Bill of Rights due to its special and exalted position in American life.

Doesn’t the Padilla case provide a perfect example of this sham? They start him out under the custody of the Justice Department, which is prohibited from torturing him. They then turn him over to another agency within the same government — the Department of the Defense, which tortures the heck of him for 3 years. The Defense Department then gives him back to the Justice Department with a permanently damaged mind, owing to the three years of torture, where they finally prosecute, convict him, and sentence him as a criminal defendant.

According to the federal courts, those 3 years under military custody just don’t count because of the special, exalted place the military and the CIA play in American society. Oh, sure, if the cops had done this, they’d be held liable. But when the military or the CIA do it, no federal judge is going to touch them, just like in Chile under Pinochet.

To grasp the full nature of this great big sham, consider this: Let’s assume that a criminal defendant in a federal terrorism case is tried and acquitted by a federal jury. Ordinarily, the federal judge would order him released. Not so, however, if the U.S. military or the CIA decide to ignore the jury’s verdict of acquittal. In that case, the federal judge will meekly defer to them, permitting troops or CIA agents to enter his courtroom and take person into custody as an “enemy combatant” based on precisely the same criminal charges on which he was just acquitted by the jury. Once taken into custody, the military and the CIA will be able to do whatever they want to the guy knowing that the federal judiciary will not dare interfere with them, just like the Chilean federal judiciary wouldn’t dare interfere with Pinochet’s military reign of terror in Chile.

If that doesn’t show the supremacy that the military now has in American society, including supremacy over federal judges, I don’t know what does. By the way, the Gestapo had the same power to ignore jury verdicts of acquittal in Nazi Germany as the U.S. military and the CIA now do here in the United States.

Undoubtedly, Padilla will appeal to the U.S. Supreme Court. Good for him. Maybe the Court will reverse the Ninth Circuit’s decision and finally expose this entire sham for what it is. I wouldn’t count on it though. The military and the CIA have become a powerful part of the U.S. government, much more powerful in my opinion than the judicial branch of the federal government. My hunch is that the Supreme Court isn’t about to take on the military and the CIA. In fact, I think there’s a good chance that the Supreme Court will even decline to hear Padilla’s case, so as to avoid having to go on record in the matter.

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.