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Judicial Blows against Military Tyranny


Two U.S. courts of appeal have dealt severe blows to the Pentagon’s contempt for the U.S. Constitution and its assumption of dictatorial powers as part of its so-called war on terrorism. The Second Circuit Court of Appeals has ordered military officials either to release accused terrorist Jose Padilla, whom the Pentagon has held in a military brig incommunicado for some 18 months, or to turn him over to U.S. civil officials for criminal charges. In a separate ruling, the Ninth Circuit Court of Appeals has held that the Pentagon’s base at Guantanamo Bay, Cuba, is subject to the constraints of the U.S. Constitution.

It is impossible to overstate the significance and importance of these two court decisions.

Ever since the September 11 attacks, U.S. military officials, led by their commander in chief, have taken the position that the war on terrorism effectively granted them the unrestrained power to seize any American and punish him without due process of law, by simply labeling him an “illegal combatant” in the government’s war on terrorism.

That’s exactly what they did with Padilla, an American citizen. Military officials took him into custody, labeled him a terrorist and illegal combatant, denied him the right to consult with an attorney, jailed him in a military brig in South Carolina, denied him the right of habeas corpus, and took the position that they could keep him incarcerated until the government’s war on terrorism was “won,” even if that meant forever. They even suggested that this newly assumed military power over the American people was omnipotent, that is, not even subject to review by the courts.

Why is the ruling in the Padilla case so critically important to the American people? Because as we have consistently held here at The Future of Freedom Foundation since September 11, if U.S. military officials are permitted to exercise such omnipotent power over the American people — the same kind of power that is wielded by the military in Pakistan and Burma — then the quaint belief that the American people are still free constitutes nothing more than a “life of the lie.”

Among the absolutely necessary prerequisites for a free society are the procedural protections accorded by due process of law and the writ of habeas corpus. No one can be considered free when his life, liberty, and property are subject to nothing more than the arbitrary whims of government officials, especially those in the military. Our Founders understood that important principle of liberty, which is why they fought so hard to ensure the inclusion of these protections in the Constitution and the Bill of Rights.

That, in essence, is the holding of the Second Circuit Court of Appeals in the Padilla case. But there seems to be a related holding in the case, subtle and implicit, but important: By ordering Padilla to be either released or turned over to the civil authorities for criminal prosecution, it seems that the court has effectively rejected the government’s contention that terrorist acts are acts of war to be handled by the military, rather than criminal acts to be handled by the courts. If so, then such a holding does not bode well for the government’s intention to transfer Zacharias Moussaoui’s case from federal-court jurisdiction to Pentagon jurisdiction, as the government has threatened to do in the Moussaoui case if the courts don’t do what the Pentagon wants, and which the Pentagon has already done in the case of accused terrorist Ali S. Marri. (See “Why Not Send Moussaoui to Havana and Be Done with It?” and “Crossing the Rubicon” by Jacob G. Hornberger.)

The perverse — and dangerous — irony to all this is how differently U.S. military officials consider the concept of freedom compared with the way that our Founders viewed freedom. To the military, freedom means the “freedom” of U.S. forces to operate without any external constraints whatsoever in order to protect the “security” of the nation. To them, such concepts as habeas corpus and due process of law are dangerous, horse-and-buggy constitutional technicalities that are unsuited in the new era of color-coded emergencies and perpetual threats of terrorism. Their concept of freedom is the freedom of U.S. officials to do whatever is necessary to deal with such emergencies and to “win” their so-called war on terrorism. It would be difficult to find a more perfect example of the utter contempt that the Pentagon has for the principles of the Constitution than its base in Guantanamo Bay, Cuba. (See “Cuban Military Tribunals Reflect Contempt for Our Constitution” by Jacob G. Hornberger.) Why did the Pentagon set up its prisoner base in Cuba rather than here in the United States? One reason: they wanted to avoid the constraints of the U.S. Constitution and the judicial branch of government at all costs. By operating in Cuba, a nation whose military regime also condemns such concepts as habeas corpus and due process of law, U.S. military officials wanted to wield the same omnipotent power that the Fidel Castro regime wields on its side of Cuba. By trying to free themselves from the Constitution and from judicial review, the military believed that they would then be “free” to wage their war on terrorism.

But the Ninth Circuit Court of Appeals has put the brakes on such freedom, holding that the U.S. military is subject to the supreme law of our land, even when it is operating 90 miles away from American shores.

The situation in Iraq provides a textbook example of how U.S. military officials, including their commander in chief, view the concept of freedom. Most all of them honestly believe that the Iraqi people are now free. And the reason for believing this is that, in their minds, freedom entails the unrestrained power of the U.S. military to do whatever it thinks is necessary for the “order” and “security” of a nation.

Notice that in the nine months that the Pentagon has been in charge in Iraq, there has been absolutely no attempt to set up a system in which there are independent civil magistrates whose job is to decide whether arrest warrants or search warrants should issue before raids are conducted on people’s homes and businesses. That’s the last thing that the military would think about doing, and the same applies to such due-process concepts as indictments, right to counsel, and jury trials. To the military, these principles would be dangerous and unwieldy impediments to the power of the military to do what is necessary for the “security” of the nation. In the mind of the military, the Iraqi people are now free because the U.S. military is “free.”

Thus, when U.S. officials, including those in the Pentagon, state that the September 11 terrorists attacked our “freedom,” what they’re referring to is not such concepts of freedom as due process of law and habeas corpus but rather their peculiar concept of freedom — the “freedom” of U.S. officials, including those in the military, to do whatever they want whenever they want in order to protect our “freedom” and to give “freedom” to people overseas.

Thus, the many years of U.S. government support of cruel and brutal dictators — such as the shah of Iran or Saddam Hussein; financial and military foreign aid to Israel, Jordan, Egypt, and other Middle East countries; the brutal 12-year embargo against the Iraqi people that contributed to the deaths of hundreds of thousands of their children; the illegal “no-fly zones” over Iraq that were never approved by either the U.S. Congress or the United Nations; and the arrogant stationing of U.S. troops on Islamic holy lands in Saudi Arabia — all this, in the minds of U.S. officials, constitutes the “freedom” that the September 11 terrorists attacked: the “freedom” of the U.S. government to operate without constraints.

The horrific consequence of this perverted concept of freedom, however, has been the deep-seated anger and hatred among foreigners that has given rise to terrorism against Americans. Thus, it’s somewhat ironic that the terrorist response to the U.S. government’s “freedom” has caused U.S. officials to demand even more “freedom” to deal with that terrorist response.

In 1803, in the landmark U.S. Supreme Court case of Marbury v. Madison, Chief Justice of the United States John Marshall enunciated one of the most important rulings in the history of our country. Although the Constitution does not expressly grant the judicial branch of the government the power to declare congressional laws and executive actions unconstitutional, the Marshall court ruled that the Constitution implicitly granted such power — the power of judicial review — to the judiciary. In an era in which a U.S. Congress is lying supine while the commander in chief and U.S. military officials are running roughshod over people all over the world, including Americans, under their distorted concept of freedom, we should pause and give thanks for those who enacted our Constitution, insisted on the passage of the Bill of Rights, and provided us with a judicial branch of government with the power to enforce such rights and protect our freedom — and for judges today who have the courage to do so.

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    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.