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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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Donald Trump Versus the CIA


It’s going to be very interesting to see how the fight between President-elect Trump and the CIA comes out. Trump obviously believes that he’s going to be in charge of the federal government when he takes office. He is in for rude awakening.

What all too many Americans simply do not want to confront is the fact when the national-security establishment was called into existence in the 1940s, it fundamentally altered America’s constitutional government structure in such a way that the military, the CIA, and, later the NSA, ended up becoming the most powerful branch of the federal government.

Yes, I know, all of us are taught in our public schools the standard line — that the federal government is divided into three branches — the legislative (Congress), the judicial, and the executive (the president).

It’s true that that was how the Constitution set up the original structure of the federal government. But all that changed with the conversion of the federal government to a national-security state. For all practical purposes, the Pentagon, the CIA, and the NSA — the principal components of the national-security establishment — became a fourth branch of government and ultimately the most powerful branch.

For anyone who hasn’t read the book National Security and Double Government by Michael Glennon, a professor at Tufts, I cannot recommend it too highly. Glennon clearly gets it. He makes a clear and convincing case that the national-security establishment is who is really in charge of the federal government. It just permits the other three branches to maintain the pretense of being in charge.

Many years ago, President Richard Nixon declared, “When the President does it, that means it’s not illegal.” Of course, most Americans would dispute that. They would say that the president is subject to the law, just like everyone else.

Not so with the CIA, however. What few wish to confront is that the CIA is the law. When the CIA does it, it’s not illegal.

Consider 18 U.S. Code Section 956. It holds that anyone who conspires to kill, kidnap, maim, or injure persons or damage property in a foreign country is guilty of a felony, with punishment being life imprisonment if the conspiracy is to murder or kidnap and 35 years in jail if the conspiracy is to maim. It was enacted in 1948.

In 2003 a team of CIA agents kidnapped a man in Italy and forcibly transported and delivered him to Egypt to be tortured. Some of the agents were convicted of kidnapping in Italy. It is a virtual certainty, however, that the kidnapping conspiracy originated here in the United States, specifically at CIA headquarters in Langley, Virginia.

Were any CIA officials subpoenaed to appear and testify before a federal grand jury? Were grand jury indictments issued? Of course not. That’s because subpoenas have to be enforced by U.S. Marshals, who lack the firepower that the CIA has, especially when backed by the 82nd Airborne Division and other units within the military establishment. Thus, despite the clear language of the federal conspiracy statute, the Justice Department doesn’t even think of instituting criminal charges against the CIA. The CIA is the law. Nothing it does is permitted to be considered to be illegal.

Or consider the CIA’s kidnapping of Maher Arar. He was a Canadian citizen who was simply changing plane at Dulles Airport in Virginia on his way back home to Canada. The CIA kidnapped him and forcibly transported him against his will to Jordan, where he was turned over the Syrian agents (Yes, that Syria!) for interrogation under torture. The CIA said that it was merely deporting him given that he had been born a Syrian citizen. Really? Then why not deport him to Canada, where he was headed and where he had acquired citizenship? Needless to say, there were no indictments or grand-jury subpoenas issued or served on CIA officials for violations of 18 U.S. Code Section 365.

Many years ago, U.S. officials here in the United States conspired to kidnap a Chilean man named Rene Schneider, who was serving as head of the Chilean armed forces. The reason? Schneider was standing in the way of U.S.-desired military coup that would prevent a democratically elected communist-socialist president, Salvador Allende, from coming into power. Pursuant to the kidnapping conspiracy, the CIA smuggled high-powered weapons into the country under diplomatic pouch.

During the kidnapping attempt, Schneider fought back and was shot dead. The CIA was later found to have paid hush money to the kidnappers-murderers. Needless to say, no subpoenas or grand-jury indictments were ever issued or served on the conspirators.

When Schneider’s heirs filed suit for the wrongful death of their father, the federal courts summarily dismissed their cases. As a practical matter, the courts undoubtedly understood that there was no way that they had the power (which consisted of U.S. Marshals) to enforce court orders and judgments against the CIA.

During the Chilean coup of 1973, which the CIA and other parts of the U.S. government had helped to instigate, two Americans, Charles Horman and Frank Teruggi, were murdered by Chilean military officials. Some years later, a State Department memo was released stating that an official (and secret) investigation had revealed that U.S. intelligence had played a role in their murders. Since it is inconceivable that U.S agents in Chile would authorize the killing of two American citizens in a foreign country without getting approval of superiors in Washington  and Virginia, the conspiracy to kill Horman and Teruggi almost certainly was centered in and Washington (where the executive branch of the federal government is located) and Virginia (where the CIA and Pentagon are located).

Once again, no subpoenas or grand-jury indictments. Moreover, when the Horman family filed suit, the federal judiciary gave them the same treatment that it gave the Schneider family. Suit dismissed.

Consider the CIA’s conspiracy, in conjunction with the Mafia, to murder Cuban President Fidel Castro, and the CIA’s conspiracy to initiate acts of sabotage and terrorism within Cuba. Once again, no subpoenas or indictments.

The reality is that the CIA, along with the military and the NSA, is simply too powerful, something that the federal courts and Congress are fully aware of. Within a few weeks, Donald Trump will encounter that reality.

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.