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 Power to Imprison Americans Is Not Freedom


I’d venture to say that few Americans know who Jose Padilla is. Nonetheless, Padilla is one of the most important figures in the lives of the American people. It was his case that revolutionized America’s legal system by upholding the power of the military to take American citizens into custody, put them into concentration camps for as long as the military wants, and torture them in the process. It was Padilla’s case that revolutionized America’s legal and constitutional system and established the superior role of the military over American civilians.

Padilla was arrested in 2002 on American soil. This was in the immediate aftermath of the 9/11 attacks. During that fear-ridden environment, the federal government adopted extraordinary powers over the American people, powers that historically have been inherent to totalitarian regimes.

When Padilla was arrested, U.S. officials said that he had been planning to detonate a “dirty bomb” in the United States. They never presented any evidence of that nor did they ever charge him with such a crime. But by conjuring up the notion of a mushroom cloud over an American city, U.S. officials knew that fear would ensure that there would be little opposition to what they were going to do to Padilla.

After holding Padilla as a “material witness,” U.S. officials transferred him to the custody of the military. What was their rationale for removing an American citizen from the U.S. criminal-justice system and delivering him into military custody? They said that he was an “enemy combatant” in the “war on terrorism,” a “war,” they said, that would effectively last forever.

Notice the ominous implication here, an implication that The Future of Freedom Foundation was pointing out at the very inception of this case: If the feds could get away with doing that to Padilla, an American citizen, they could get away with doing that to dozens, hundreds, or thousands of Americans.

Initially, the military said no lawyer for Padilla. This was “war,” they said. And in war, POWs do not have lawyers. Ultimately, the federal judiciary forced the military to permit Padilla to have legal counsel.

Trial by jury? Of course not. Again, this was “war,” they said. There are no jury trials in war.

Padilla was held in a military dungeon for some three years. During that period of time, he was subjected to what is called “touchless torture.” Embraced by the CIA decades ago, it is a way of torturing people mentally so that there are no physical signs of torture on the person’s body. The CIA learned long ago that by subjecting people to extended periods of isolation and sensory deprivation, they could cause severe and permanent mental damage in the victim. The beauty of this type of torture, from their perspective, is that it gives them the ability to deny that they’ve actually tortured the person. (See this article for more information on touchless torture.)

Padilla’s case slowly made its way through the federal courts, which ultimately upheld the power of the president and his military to do what they did to Padilla. Deferring to the authority of the national-security state in that fear-ridden environment, the federal courts bought into the government’s inane “war on terrorism” rational for what they did to Padilla.

Why is that significant? Because the federal ruling in Padilla’s case now applies to all Americans. The president and his army now have the superior position with respect to the relationship between the military and civilian. If an American is suspected of terrorism, the military can take him into custody, hold him forever, and torture him, just as they did with Padilla.

And they’re not limited to a military dungeon. If it’s large numbers of Americans whom the military is rounding up, concentration camps can be used. As Justice Scalia recently pointed out, the U.S. Supreme Court case upholding the military round-ups of Japanese Americans and their placement into concentration camps has never been overruled. The same thing, he said, could happen again.

Now, one might say, “But Jacob, terrorism is an act of war, not a criminal offense. Therefore, it is entirely proper for the military to take Americans suspected of terrorism into custody as POWs and treat them accordingly.”

Well, you’d have a hard time convincing the federal judge who is now considering a resentencing of Padilla of that.

Federal judge, you ask? Resentencing, you ask? “Jacob, I thought you said Padilla was in military custody as a POW.”

That’s right. But what the feds did after they secured a favorable court ruling on military custody over Americans in the perpetual “war on terrorism,” they quickly and suddenly removed Padilla from military custody and transferred him to the federal courts for criminal prosecution for terrorism. Imagine that: After repeatedly telling the federal courts that Padilla was a dangerous “enemy combatant” in the “war on terrorism,” they shifted gears and transferred him to criminal defendant status, where he was convicted and sentenced of terrorist-related criminal offenses.

So, what does all this mean? It means that we now live in a country in which our own government has the option of treating Americans citizens either as “enemy combatants” or criminal defendants for a suspected terrorist offense. That is, if two Americans are both accused of committing the same terrorist  offense, one can be sent to the military and the other to the federal courts. You couldn’t find a better example of denial of equal treatment under law and a violation of the “rule of law” than that.

One might say, “Oh, well, no big deal. President Obama and his army might now wield this power but at least they’re not exercising it. There are no roundups taking place.”

But that’s not the test of a free society. A free society is one in which government officials don’t even wield those types of totalitarian powers. Moreover, history has shown more than once that when people surrender totalitarian powers to their rulers, they are inevitably exercised in the next big crisis. And let’s not forget here that the next president who wields this power and who will be in charge of military might well be Hillary Clinton.

Jose Padilla is now facing a resentencing hearing. I wonder if he knows that the ruling in his case now applies to all Americans. I wonder if he counts himself lucky. After all, don’t forget: U.S. officials also now wield the authority to assassinate Americans.

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.