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The Greatest Threat to our Freedom, Part 3


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The most significant aspect of the case of Jose Padilla is not the horrific treatment to which he was subjected but the fact that what was done to him can now be legally done to every other American citizen.

On May 8, 2002 — about eight months after the 9/11 attacks — U.S. officials took Padilla into custody at Chicago’s O’Hare International Airport as he returned from a trip to Egypt, Afghanistan, Saudi Arabia, Pakistan, and Iraq. U.S. officials announced that he had plotted to explode a nuclear bomb within the United States. He was immediately labeled “The Dirty Bomber.”

At first, Padilla was held as a “material witness” and was not charged with a crime, but on June 9, 2002, the Bush administration converted Padilla into an “enemy combatant” in the “war on terrorism,” removed him from the jurisdiction of the federal courts, and transferred him to the control of the U.S. military.

U.S. military officials incarcerated him in a military dungeon in South Carolina, where he was subjected to the same kind of “touchless torture” to which U.S. POWs had been subjected by the North Korean communists during the Korean War. Such touchless-torture techniques included isolation and sensory deprivation, both designed to cause permanent mental damage to the victim.

Padilla was subjected to this enemy-combatant treatment for about three and a half years. During much of that time, he was denied any contact with the outside world. When he had to be removed from his cell for dental treatment, he was forced to wear dark goggles to ensure that there was no break in his sensory deprivation. He was never formally accused of a crime, including the supposed plot to blow up a nuclear bomb in the United States. He was never given a speedy trial. He wasn’t even accorded a kangaroo military tribunal. The government’s position was that the military could hold Padilla for the rest of his life and subject him to enemy-combatant treatment for as long as it wanted.

In principle, the government’s treatment of Padilla was no different from the treatment of its prisoners being held at the Pentagon’s prison camp at Guantanamo Bay, Cuba. As I pointed out in Part 2, after 9/11 the Bush administration established its prison camp in Cuba with the expectation that it would be a Constitution-free zone, one in which the military and the CIA could do whatever they wanted without the interference of the U.S. federal courts.

The idea was that the government — specifically the military and the CIA, i.e., the U.S. national security state — would have the omnipotent power to roam the world in search of suspected terrorists, take them into custody in foreign countries, render them to friendly brutal dictatorial regimes for torture, and bring them to Guantanamo Bay, where they would be held for the rest of their lives, tortured, and possibly executed, all without any interference by Congress, the federal judiciary, or anyone else.

The government’s rationale was that because of 9/11, the war on terrorism would be considered a real war — like World War I and World War II, one in which enemy forces constitute “enemy combatants.” Unlike those wars, however, U.S. officials effectively pointed out that the “war on terrorism” could last for generations. Therefore, enemy combatants in the war on terrorism could be incarcerated for life. Moreover, since these enemy combatants didn’t wear uniforms, they would be considered “illegal” enemy combatants and they would be denied the protections against torture guaranteed by the Geneva Conventions.

At first, U.S. officials exercised these extraordinary powers only against foreigners. We repeatedly emphasized at The Future of Freedom Foundation, however, that one of the great distinctions of America’s constitutional order was that the Bill of Rights guaranteed the same rights and protections to foreigners that it did to Americans. Moreover, we warned that the revolutionary legal change that was enveloping the nation encompassed, by its own logic, not just foreigners but also Americans.

It wasn’t difficult to follow the government’s reasoning. The war on terrorism was global in nature. The battlefield in this war wasn’t just Europe, or North Africa, or the Pacific. This war was global in nature. U.S. officials even called it the “global war on terror” or GWOT. That obviously meant that the United States itself was part of the battlefield.

Padilla was and is an American citizen. On the day he was placed into a military brig in South Carolina, the relationship between the U.S. government and the American citizenry underwent a revolutionary transformation. For, as we pointed out at The Future of Freedom Foundation, that meant that Americans now lived in a society in which the military could take any American into custody, place him into a dungeon or concentration camp, torture him, execute him, or simply keep him incarcerated for the rest of his life.

No formal charge. No indictment. No court hearings. No trial. No due process. No bar to cruel and unusual punishment. All that was needed was the military’s (or the CIA’s) label of “terrorist” to be placed on American citizens (and foreign citizens).

What about habeas corpus? Wouldn’t that still operate to ensure the release of an American citizen or a foreigner?

Initially, the government’s position was that habeas corpus didn’t apply and could not be used. After all, the government said, this was war. Who ever heard of allowing enemy prisoners to use habeas corpus to challenge their captivity?

When that particular issue reached the U.S. Supreme Court, however, the Court not only rejected the government’s claim that the Pentagon’s prison camp at Guantanamo Bay constituted a Constitution-free zone, but it also held that prisoners held there were entitled to the benefits of habeas corpus to challenge the legitimacy of their detention.

Crisis and liberty

Now let’s back up a minute to examine the significance of what was happening in post–9/11 America. Recall that the reason that the Magna Carta came into existence in 1215 was that the English government had been using its military forces to take English subjects into custody without formal charges, incarcerate them, torture them, and deny them a trial or any semblance of due process of law. With the Magna Carta, the king agreed that he no longer wielded such omnipotent, totalitarian power over his subjects.

After 9/11, the U.S. government took the same position that English kings had taken prior to the Magna Carta’s being signed. The government decreed that because of the 9/11 attacks, it now wielded the power to take both foreigners and Americans into custody without formal charges, incarcerate them, torture them, and deny them a trial or any semblance of due process of law.

In other words, what the Magna Carta had established — and what had been reinforced in the Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution — was eviscerated after 9/11 — and by decree rather than by constitutional amendment.

There is another important thing to remember here: Terrorism is a federal criminal offense. It is listed in the U.S. Code as a federal criminal offense. Every federal prosecutor and every federal judge across the land know that terrorism is a federal crime. That’s why federal grand juries often issue criminal indictments against suspected terrorists. That’s why suspected terrorists are often prosecuted in federal district court. That’s why convicted terrorists are today serving time in federal penitentiaries. Examples include Ramzi Yousef, the terrorist in the 1993 terrorist bombing of the World Trade Center, and Zacharias Moussaoui, the terrorist in the 9/11 attacks. Timothy McVeigh was executed as a terrorist for his role in the Oklahoma City bombing.

Since terrorism is, in fact, a federal criminal offense, how did the Pentagon and the CIA acquire jurisdiction over suspected terrorists? Well, they certainly didn’t do it with a constitutional amendment. They did it simply by presidential decree. After 9/11, George W. Bush decreed that from then on America would be a country in which the national-security state would wield ultimate authority over the American people — indeed, over everyone in the world — by virtue of its omnipotent power to label people as terrorists and to treat them accordingly.

Who gets the final say — the federal courts or the military? Why, the military, of course. In fact, probably many Americans do not realize that a federal court’s jury verdict of acquittal in a terrorism case is no longer a final judgment, entitling the defendant to walk out of the courthouse as a free man. After 9/11, the military made it clear that it will no longer be bound by a jury verdict of acquittal in a federal terrorism case. Americans now live in a country in which the military can immediately take custody of a person who’s been acquitted of terrorism by a jury in federal court, whisk him away to a military dungeon or concentration camp, and treat him as an enemy combatant.

To put things into a stark context and just so you’ll comprehend the revolutionary nature of this change to our constitutional order (which was accomplished by decree rather than by constitutional amendment), the Gestapo in Nazi Germany would oftentimes ignore verdicts of acquittal by Germany’s constitutional courts and whisk the acquitted person away to a concentration camp.

In fact, let us recall that Hitler himself secured emergency powers in the context of his government’s war on terrorism. After the terrorist attack on the Reichstag, he went to the Reichstag and requested temporary, emergency powers to deal with the terrorist threat (and the communist threat too, given the cold war that then existed between Germany and the Soviet Union). After much discussion and debate, the Reichstag gave Hitler temporary emergency powers, which included the power of the military and the Gestapo to arrest suspected terrorists, incarcerate them without formal charges or trial, and treat them accordingly.

More recently, recall the massive protests that brought down Egyptian military dictator Hosni Mubarak. Among the protesters’ principal demands was that he lift the temporary emergency powers that had been in existence for nearly 30 years, including the power to have his military and intelligence forces arrest people without charges or trial, incarcerate them indefinitely, torture them, and even execute them.

Mubarak, claiming that the powers were absolutely necessary to keep the people safe from the terrorists (and communists and drug dealers), refused to do what King John had done at Runnymede — he refused to relinquish his omnipotent powers over the citizenry. After he was ousted from power, the Egyptian military dictatorship, it comes as no surprise, has steadfastly taken the same position as Mubarak — and, for that matter, the same position as Presidents Bush and Obama, the Pentagon, and the CIA — that such temporary powers, even though they have been in existence for decades, are still necessary to keep the people safe and to protect “national security.”

Effects of the Padilla case

But unlike prisoners held in Nazi Germany, Egypt, and other nations headed by totalitarian regimes that wield such omnipotent powers under the rationale of a war on terrorism, Jose Padilla could still resort to the remedy of habeas corpus: it is the extraordinary legal remedy that forces the government to justify holding a person prisoner. Keep in mind that a hearing on a writ of habeas corpus is not a trial but rather a means by which the judiciary can order the release of a person who is being unlawfully detained.

Padilla ultimately filed a petition for writ of habeas corpus in a South Carolina federal district court. On appeal, however, the Fourth Circuit Court of Appeals upheld his designation as an enemy combatant and upheld his indefinite detention by the military as part of the “war on terrorism.”

It is impossible to overstate the significance of that judicial decision. As we repeatedly emphasized at The Future of Freedom Foundation, as a practical matter the court wasn’t holding simply that the U.S. military could do this only to Padilla. It was holding that the military could do it to any American.

What about evidence needed at the habeas corpus hearing to justify holding an American as an enemy-combatant terrorist? In repeated holdings, the court has made it clear that what it will require of the government is a modicum of evidence to sustain its suspicion that the person is a terrorist, in which case the habeas corpus petition will be dismissed. The Fourth Circuit Court ruled that the government had met the light evidentiary burden in Padilla’s habeas proceeding.

What did the Supreme Court rule when the Padilla case reached that Court on appeal? Well, the case never reached that Court. Why? Because before the Court had an opportunity to consider the case, the government removed Padilla from the control of the military and placed him back in the jurisdiction of the federal courts. It then quickly secured a federal grand jury indictment against him, thereby effectively converting his status from that of an enemy-combatant terrorist to that of a federal criminal defendant charged with the federal crime of terrorism.

Why did the government do that? The most likely reason was to prevent the Supreme Court from overruling the Court of Appeals. Once the government had secured a favorable ruling from the Court of Appeals, it knew that it had secured a revolutionary transformation in America’s constitutional order, one that gave the president, the military, and the CIA ultimate control over the American citizenry. Not wanting to jeopardize that ruling, which would obviously come in handy in some future crisis, the government converted Padilla to a criminal defendant to make his habeas corpus petition moot.

The government’s strategy worked. The Supreme Court refused to overrule the holding of the Appellate Court, ruling that Padilla’s habeas corpus petition had become moot.

In other words, after years of telling the federal courts that Padilla posed a grave threat to national security requiring his arrest, detention, and torture as an enemy-combatant terrorist, the government suddenly changed its position and converted him to a federal criminal defendant in a terrorism case in federal district court.

The government ultimately secured a conviction of Padilla on charges that had nothing to do with his supposed dirty-bomb plot. In fact, the government’s indictment of Padilla didn’t even mention the supposed dirty-bomb plot. All it accused him of was a conspiracy to participate in overseas terrorist activity.

But the government got wanted it wanted — a court ruling by a federal court of appeals that is ready-made for any future crisis in the United States — a ruling empowering the president and the military to round up Americans as suspected enemy terrorists and subject them to the treatment accorded Padilla and the suspected terrorists at Guantanamo Bay.

In 2012, Barack Obama signed into law the National Defense Authorization Act, which codified the revolutionary post–9/11 transformation of America’s constitutional order, as represented by the Jose Padilla case. The only good thing about this totalitarian law is that at least it is bringing to the attention of the American people the kind of country in which they now live.

As long as a government wields the power to round up citizens without formal charges or trial, torture them, incarcerate them indefinitely, and execute them after some sort of kangaroo proceeding, there is no way that the people living under that government can be considered free in any meaningful sense of the word.

Eight centuries ago, the great barons of England required their king to relinquish such powers. A little more than 200 years ago, our American ancestors enshrined the Magna Carta’s protections in the Bill of Rights. On 9/11, those centuries-old protections were eviscerated, enabling the U.S. government to wield the same powers wielded by some of the most totalitarian regimes in history, all under the guise of keeping people safe and protecting “national security.”

The omnipotent powers now wielded by the president, the military, and the CIA as part of the never-ending “war on terrorism” constitute the greatest threat to the freedom of the American people since the founding of their nation.

Part 1 | Part 2 | Part 3

This article originally appeared in the March 2012 edition of Freedom Daily. Subscribe to the print or email version of The Future of Freedom Foundation’s monthly journal, Future of Freedom (previously called Freedom Daily).

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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.