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The 9/11 attacks provided George W. Bush, the Pentagon, and the CIA with the perfect opportunity to seize extraordinary powers. That shouldn’t surprise anyone. A crisis fills much of the citizenry with great fear, and government officials have long known that in the midst of a crisis many people will eagerly trade their freedom for the promise of safety or security.
Among the extraordinary powers seized by Bush and his military and intelligence forces were the power to torture and assassinate people, including American citizens, without regard to the rights of trial by jury, due process of law, and other long-established procedural guarantees enumerated in the Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution.
That’s not to say, of course, that the U.S. government hadn’t been torturing and assassinating people before 9/11. As Americans have discovered over the decades through the release of once-highly classified documents, U.S. national-security state officials have been participating in torture and assassination schemes since the 1950s, in such places as Africa, Latin America, and Vietnam.
But before 9/11, U.S. officials strived to keep the torture and assassinations hidden from the American people. With the 9/11 attacks, torture and assassination were brought to the surface and made the official policy of the U.S. government.
How did Bush pull off that remarkable feat? How did he get away with actions that flew in the face of the Constitution and the Bill of Rights? How did he revolutionize American life without even the semblance of a constitutional amendment or even an act of Congress?
Bush and his national-security team made a clever legal argument. They said that since the 9/11 attacks were acts of war, Bush could wield all the powers of a wartime commander in chief. Moreover, this was a different type of war, Bush said, one that was to be waged against “terror,” a war that would inevitably last much longer than traditional wars, such as World Wars I and II or even the Vietnam War. This “war on terror” would very likely go on for decades, Bush intimated, perhaps even longer than the Cold War.
Bush said that since the United States was now at war, it was legally permissible for him to employ military and intelligence forces to kill the enemy. In the war on terror, the enemy was suspected terrorists.
What about torture? After all, signatories to the Geneva Convention, which include the United States, are prohibited from torturing prisoners of war.
Bush said that the Geneva Convention applied only to legal enemy combatants — that is, those who wore uniforms. Since terrorists are illegal enemy combatants, given their failure to wear uniforms, Bush said that they weren’t entitled to the protections of the Geneva Convention. In any event, Bush denied that U.S. officials were torturing people. They were just employing “enhanced interrogation techniques,” he said.
There were several big problems, however, with Bush’s reasoning.
Federal crime
First and foremost is the fact that under the law, terrorism isn’t an act of war but rather a criminal offense. Anyone who doubts that can simply examine the U.S. Code, which enumerates federal criminal offenses. Terrorism is listed there.
That includes the 9/11 attacks. Indeed, the 1993 terrorist attack on the World Trade Center was no different in principle from the 2001 terrorist attacks on the World Trade Center (and on the Pentagon). When one of the suspects in the 1993 attack, Ramzi Yousef, was discovered living in Pakistan, he was taken into custody, extradited to the United States, indicted by a federal grand jury, and prosecuted, convicted, and sentenced in U.S. District Court. That’s because terrorism is a federal criminal offense.
It’s no different from a multitude of other federal criminal prosecutions for terrorism. Accused terrorists are indicted, tried, and prosecuted in federal district court, where they are afforded the procedural guarantees enumerated in the Bill of Rights, including trial by jury, right to counsel, right to cross-examine adverse witnesses, due process of law, and others. Again, that’s because under U.S. law, terrorism is a federal criminal offense.
Bush and his national-security team never denied this fundamental principle of the law. What Bush decreed was that since the United States was engaged in a “war on terror,” he and his military and intelligence forces now had the option of treating suspected terrorists as either criminal defendants or enemy combatants.
Imagine that some Mexican drug lord sneaked into the United States and bombed a DEA office in El Paso, killing hundreds of people, including federal personnel. Assume that the president then declared a “war on drugs,” just as he declared a “war on terror,” and announced that from now on, he, the Pentagon, and the CIA would wield the legal authority to treat suspected drug-law violators either as criminal defendants or as enemy combatants. If U.S. officials chose to go the enemy-combatant route, drug suspects would be denied the protections of the Bill of Rights and be subject to being indefinitely incarcerated in a military dungeon or concentration camp, tortured, and assassinated.
Do you see the problems with that, at least from a constitutional perspective? That’s what they did with the federal crime of terrorism and their war on terror.
Which option they chose for an accused terrorist — criminal defendant or enemy combatant — made all the difference in the world. If they chose the criminal-defendant route, the accused would be accorded all the rights and guarantees provided in the Bill of Rights, as required under our constitutional system. If they chose the enemy-combatant route, however, the accused could be denied all those rights and be subject to torture, indefinite detention, kangaroo military tribunals, and execution, or even be assassinated.
Given that the president now has the option to treat suspected terrorists as either criminal defendants or as enemy combatants, the Bill of Rights has effectively become a nullity. That is, since the president now can, at his discretion, treat a person suspected of terrorism as an enemy combatant, what good are the rights and guarantees in the Fourth, Fifth, Sixth, and Eighth Amendments?
At the inception, some people assumed that the extraordinary powers to torture and assassinate people applied only to foreigners. Knowing that Americans might be more reticent about such powers if they knew that they applied also to them, Bush and his team did little to disabuse people of that notion.
But anyone who gave careful consideration to Bush’s argument could easily see that such powers applied also to Americans. After all, he always made it clear this was a war against terrorism. It didn’t take a rocket scientist to figure out that an American can just as easily be a terrorist as a foreigner can.
The threat to citizens
Equally important, Bush also made it clear that his war on terror was not limited to foreign lands but instead was a global war. That meant that the war also encompassed the United States, which further meant that the presidential powers to torture and assassinate could be exercised right here on American soil against American citizens suspected of terrorism.
The Jose Padilla case made it clear that the federal courts were not going to stand in the way of Bush, the Pentagon, and the CIA. Padilla, an American citizen, was taken into custody and accused of terrorism. When Bush ordered that Padilla be transferred from federal court jurisdiction to the jurisdiction of the Pentagon, the federal judiciary buckled, not daring to stand in the way.
Padilla was held in a military dungeon without trial for about three years, during which he was subjected to what is known as “touchless torture,” a process, used by the North Korean communists against American POWs that subjects a prisoner to isolation and sensory deprivation with the aim of causing permanent mental damage. Since the torture is mental, the torturer can innocently say, “I never laid a hand on him.”
Exercising the option of treating an accused terrorist as an enemy combatant, the president and the Pentagon claimed that Padilla was an illegal enemy combatant. The federal judiciary, continuing a decades-long tradition of deferring to the national-security state apparatus, upheld what the Pentagon was doing to him. What many Americans didn’t realize — and still don’t realize — is that the ruling upholding what was done to Padilla applies to all Americans.
Several years later, U.S. officials decided to assassinate an American citizen named Anwar al-Awlaki, who was living abroad and was accused of terrorism. Awlaki’s father brought suit in federal district court seeking to prevent the assassination of his son. Relying on the Fifth Amendment, the suit contended that the government was prohibited from depriving his son of his life without due process of law.
Once again, the federal judiciary deferred to the CIA, saying that Awlaki’s father lacked “standing” to bring the case. Awlaki himself would have to come to court to seek relief, the court held, ignoring the fact that the CIA would kill him before he could set foot in the courthouse.
And sure enough, the CIA did assassinate Awlaki. They also assassinated his 16-year-old son, who was also an American. When family members brought suit in federal district court for the wrongful death of both Americans, the federal judiciary summarily dismissed the suits without even permitting the plaintiffs to take depositions, demonstrating once again the extreme deference that the judicial branch of government has always shown to the military, the CIA, and national-security state operations.
Can the presidential authority to torture and assassinate people be reconciled with the principles of a free society? Of course they can’t. Legalizing such powers is inherent to dictatorial regimes — regimes that will not countenance dissent or disagreement with what the government is doing and which inevitably begin viewing critics, dissidents, and whistleblowers as enemies of the state, especially in the middle of a big crisis.
With the Constitution and the Bill of Rights, the Framers and the American people in the late 1700s did everything they could to protect us from such dictatorial power. As we have seen, however, no words on some parchment will ensure the protection of the rights and freedoms of the citizenry from those people who have an insatiable thirst for power and will look for every opportunity to wield it and exercise it. Ultimately, the liberty of the people turns on citizens who understand the genuine meaning of freedom, are passionately committed to it, and refuse to permit federal officials to take it away, even in the midst of crisis.
This article was originally published in the September 2014 edition of Future of Freedom.