Imagine if the DEA established a torture and prison camp in, say, Odessa, Texas. Whenever DEA agents arrest someone suspected of violating America’s drug laws, the suspect is taken to the DEA camp, where he is tortured into giving up names of people involved in the drug trade. Prisoners are denied a trial for years, perhaps forever. If a trial is ever held, a tribunal of DEA officials determines guilt or innocence. Hearsay evidence is admitted at trial — the accused are not permitted to cross-examine witnesses against them. Attorney-client communications are monitored and supervised. Meanwhile, the DEA initiates an assassination program that brings swifter “justice” to drug-law violators. It enables DEA agents to simply kill drug suspects without any indictment or trial at all.
There is no doubt that the U.S. Supreme Court would declare all of this unconstitutional. That is precisely the type of thing that our ancestors wished to avoid. That’s why they enacted the Bill of Rights. They weren’t satisfied with just the Constitution. They knew that the federal government would attract the type of people who would set up these types of camps. They wanted a Bill of Rights to specifically spell out express restrictions on the powers of federal officials.
Take the Fifth Amendment. It expressly states that no person shall “be deprived of life” without “due process of law.” Due process means formal notice of an accusation, such as a grand-jury indictment,” and a trial. That means no assassination because assassination involves killing someone without an indictment or trial.
Thus, if the DEA established an assassination program for drug suspects, it would quickly be declared unconstitutional.
Consider the Sixth Amendment. It states “In all criminal prosecutions, the accused shall enjoy the right of speedy and public trial, by an impartial jury….”
Why did our ancestors include that provision? Because they knew that without it, federal officials would jail people indefinitely, perhaps for the rest of their lives. They also knew that if they didn’t make it clear in the Bill of Rights, federal officials would use judges or tribunals, not juries, to decide guilt or innocence.
Thus, if the DEA established our hypothetical system, there is no doubt that the Supreme Court would declare it unconstitutional.
The Sixth Amendment also guarantees the right of an accused to confront witnesses against him. That entails the right to cross examine them. With the use of hearsay evidence, that right is destroyed. Thus, there is no doubt that the Supreme Court would declared the DEA’s “judicial” system unconstitutional.
Given that the Supreme Court would declare our hypothetical DEA torture and prison camp and “judicial” system unconstitutional, why hasn’t it done the same with the Pentagon’s and the CIA’s torture and prison camp at Guantanamo Bay?
After all, that camp has all the characteristics of our hypothetical DEA camp. Moreover, military and CIA officials are every much federal officials as DEA officials. As such, they are just as subject to the Bill of Rights as other federal officials, There is no exception in the Bill of Rights for the military or the CIA.
So, why the difference? Why do the Pentagon and the CIA get a pass on violating the Bill of Rights while the DEA doesn’t?
The answer is very simple: In a national security state, the military-intelligence establishment is sovereign and supreme. It runs the show. It permits the Supreme Court, along with the president and the Congress, to have the veneer of power but it is the ultimate decider of how the federal government is going to run.
It all turns on power. In the final analysis, government is force. It is through force and the threat of force that its commands and orders are carried out. The Supreme Court’s orders are enforced by U.S. Marshalls. Imagine a team of U.S. Marshalls appearing at the Pentagon and CIA headquarters with an order to shut down the torture and prison center at Gitmo. What do they do when the Pentagon and the CIA ignore them? They do nothing because the amount of force wielded by a team of U.S. Marshalls is minuscule compared to the military and intelligence force they are facing.
Everyone in the federal government fully understands this phenomenon. The national-security establishment is all-powerful within the federal government. Its powers are omnipotent. When it comes to enforcing the Bill of Rights against the omnipotent power of the Pentagon and the CIA, the Supreme Court knows full well that it is impotent.