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A Federal Inanity in the Fourth Circuit

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One of the most inane arguments I’ve ever heard came this week from one of the 10 judges serving on the Fourth Circuit Court of Appeals, which is reputedly the most conservative federal appellate court in the country. The judge is J. Harvie Wilkinson III, who was nominated to the bench by Ronald Reagan. The case involves Ali al-Marri, a citizen of Qatar who was initially a criminal defendant in a terrorism case but who was whisked into the clutches of the Pentagon as an “enemy combatant” shortly before his trial was to begin. The issue in the case is whether the “enemy combatant” power is constitutional.

According to the New York Times, Wilkinson “added, in extended remarks, that civil liberties groups had stirred up needless anxiety about the president’s detention powers. ‘We’re not talking about an indiscriminate roundup,’ he said. ‘We’re talking about two people’ — Mr. Marri and Mr. Padilla — ‘in six years with undisputed ties to Al Qaeda.’”

That is one inane argument.

First of all, we can only hope that Wilkinson was simply making a political observation rather than making a legal argument. After all, surely he knows that whether a particular power is constitutional or not turns not on the number of people it is being used against but rather on whether it is consistent with the provisions of the Constitution. That is, even if a power that is being claimed is not being exercised against anyone or only against two people doesn’t mean that the power is constitutional.

For example, supposed the president and the military have taken into custody two Catholics under a claimed power to arrest and incarcerate people because of their religious beliefs. Surely, Wilkinson wouldn’t suggest that the claimed power was constitutional simply because it was being exercised against only two people.

But even if Wilkinson’s point was simply a political one, which would be somewhat odd given that he was presiding over an important legal proceeding, his point is still inane.

The enemy-combatant doctrine is quite possibly the most revolutionary legal doctrine in American history. If ultimately upheld by the courts, it will constitute a fundamental reordering of America’s judicial system. Prior to the assumption of such power after 9/11, terrorism was always considered a federal criminal offense. In fact, it is listed in the federal statute books as a federal felony, which means that terrorism was always prosecuted in federal district court. That’s why such terrorists as Zacharias Moussaoui, Timothy McVeigh, Ramzi Yousef, and Jose Padilla were indicted and prosecuted for terrorism in federal district court.

After 9/11, the president and the Pentagon unilaterally changed that principle. Declaring a “war on terrorism,” they said that from now on, the president and the military would have the option of treating suspected terrorists in two completely different ways: one, the traditional route involving the federal courts, where defendants are according all the rights and guarantees of the Bill of Rights; and, two, as “enemy combatants,” where they would be accorded virtually no rights whatsoever and subjected to torture, indefinite incarceration, and execution.

Neither the president nor the Pentagon secured a constitutional amendment before assuming this new, revolutionary power.

Now, ask yourself: From a political standpoint, after 9/11 how smart would it have been for Bush and the Joint Chiefs of Staff to go out and start rounding up large numbers of Americans, torturing them, incarcerating them in prison camps, and executing them?

Not very smart at all because there would have been a big possibility that Americans would have risen up in opposition. That’s why the round-ups were limited to foreigners, who were whisked away to Gitmo or to the secret CIA camps around the world or renditioned to friendly brutal regimes for torture and punishment.

Insofar as American citizens were concerned, the feds selected and pursued a couple of legal test cases designed to get their enemy combatant power against Americans upheld. They chose the cases that would be likely to receive the least sympathy from the American people. They chose Jose Padilla and Ali al-Marri, neither of whom were, say, a high school principal living in American middle-class suburbia and attending the local Baptist church. The feds knew that few Americans would sympathize with a Muslim-American who had supposedly threaten to explode a nuclear bomb in America and a foreigner who had supposedly supported terrorists while living in America.

The feds knew that if they could get the enemy combatant power upheld in their test cases, the holding would then apply universally against all Americans. In other words, from a political standpoint, why start the round-ups of American citizens before the power is upheld by the courts? In fact, it wouldn’t even be smart from a legal standpoint because it’s obvious, based on Wilkinson’s remark, that some judges would be less likely to uphold the power if it was being exercised against large numbers of people.

What Wilkinson possibly was forgetting when he made his remark is that once the courts uphold the principle in a case involving only two people, the power can then be legally exercised against everyone else. Once the power is upheld and subsequent roundups begin, Wilkinson cannot then cry, “Wait a minute! When we issued our rulings in Padilla and al-Marri, we didn’t realize that the government would abuse the enemy-combatant power by rounding up hundreds or thousands of Americans. We trusted the government to exercise its power judicially and well.” At that point, it will be too late because the government’s roundups will be based on the court’s stamp of constitutional approval in the test cases that the government brought.

If the courts end up upholding the enemy combatant doctrine and if there are more major terrorist strikes in the U.S., which is likely given that U.S. officials continue to poke hornets’ nest in the Middle East, Judge Wilkinson and all other Americans might yet get to witness what citizens of such countries as Burma, Chile, Germany, and the Soviet Union have witnessed in their history — the round-ups of large numbers of citizen “enemy combatants.” Don’t count on the courts to bail anyone out.

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.