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Enemy-Combatant Nonsense at the Wall Street Journal


In an editorial this week entitled, “The Tea Party Goes to War,” the Wall Street Journal takes Republicans Rand Paul and Mike Lee and Democrats Dianne Feinstein and Max Baucus to task for proposing an amendment to the current defense authorization bill that would require the federal government to use the federal-court system established by the Constitution to prosecute accused terrorists.

The Journal says that accused terrorists are wartime enemy combatants and, therefore, should not be treated as criminal defendants, or, as the Journal puts it, as “common burglars.”

Perhaps the Journal should immediately send out couriers across the land to advise the many thousands of federal judges and federal prosecutors who obviously haven’t gotten the word yet. They’re still prosecuting terrorists and they’re still convicting them in the federal courts. They’ve been doing that for a long time.

In other words, the federal courts are, in fact, treating accused terrorists as “common burglars.” They are reading them their Miranda rights, which the Journal points out doesn’t need to be done with wartime enemy combatants. They’re also according them the rights of trial by jury, right to counsel, right to confront witnesses, and the other procedural rights and guarantees of due process and the Bill of Rights.

Why are the federal courts treating many accused terrorists as “common burglars”? Because terrorism is, in fact, a federal criminal offense. I wonder if the editorial writers at the Journal know that. Terrorism is, in fact, listed in the U.S. Code, which enumerates federal crimes.

Given that that’s the case, then why are those members of Congress trying to enact a measure that would require suspected terrorists to be treated as criminal defendants?

The reason is that after the 9/11 attacks, President Bush decreed that he and the Pentagon now wielded the authority to treat suspected terrorists in two alternative, optional ways — as either a criminal defendant or as an illegal enemy combatant.

Under that new post-9/11 order, some accused terrorists receive the criminal-defendant route. They are the lucky ones. They are accorded all the procedural protections of the Bill of Rights.

Other accused terrorists get the Pentagon route. They are the unlucky ones. They are subject to being incarcerated for life without trial, tortured, or executed, without the protections of due process or the Bill of Rights.

The decision as to which route a person receives is entirely up to the discretion of the president and the Pentagon. The decision is totally arbitrary. It is that type of arbitrary system, of course, that is the hallmark of tyrannical regimes.

The arbitrary nature of the system was perhaps best exemplified in the treatment of American citizen Jose Padilla. He started out in the federal-court system, was then transferred to the control of the Pentagon for three years, where he was brutally tortured in a military dungeon, and then transferred back to the federal-court system, where he was ultimately convicted as a criminal defendant and sentenced to serve time.

Hmm. I wonder if the Journal is calling for Padilla’s criminal conviction in federal court to be vacated so that he can be re-transferred to the control of the Pentagon as an enemy combatant. Indeed, I wonder if the Journal is advocating the same for all the terrorists who have been convicted in federal court since 9/11, including the Detroit terrorist bomber, the New York terrorist bomber, and 9/11 terrorist co-conspirator Zacharias Moussaoui.

Like many other conservatives, the Journal maintains that ever since 9/11, America is been at war against terrorism and that it’s never necessary to treat enemy combatants in war as criminal defendants.

Yet, 9/11 wasn’t the first terrorist attack on the United States or even on American soil. There were the attacks on the USS Cole, the U.S. embassies in East Africa, the U.S. troops in Lebanon, CIA officials outside Langley, and the World Trade Center in 1993. Indeed, Ronald Reagan declared war on terrorism back in the 1980s. Would the Journal say that we’ve been at war continuously since the 1980s and that the president and the Pentagon have wielded this extraordinary and arbitrary power all that time?

For that matter, we could even go back further than that, with respect to the war on drugs, which, in principle, is no different from the war on terrorism. Both involve federal crimes, and U.S. officials have declared war on both of them. I wonder if the Journal would say that under the war on drugs, the president and the Pentagon wield the authority to send accused drug offenders either into the federal-court system or into the clutches of the Pentagon as enemy combatants.

Finally, the Journal emphasizes the importance of going after unlawful enemy combatants — i.e., “anyone who takes up arms against the U.S., fails to wear a uniform and targets civilians.”

Oh? Does that include agents of the CIA? They don’t wear a uniform and they target civilians. I doubt the Journal would go that far. As everyone knows, conservatives have never been known for their consistency.

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.