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The New York Time’s Failure of Understanding

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In a July 29 editorial entitled “The Military Is Not the Police,” the New York Times stated, “It was disturbing to learn the other day just how close the last administration came to violating laws barring the military from engaging in law enforcement when President George W. Bush considered sending troops into a Buffalo suburb in 2002 to arrest terrorism suspects…. More needs to be done to ensure that the military is not illegally deployed in this country.”

Unfortunately, the Times fails to understand the critical point: After 9/11 the president acquired the power to treat terrorism as either an act of war or a criminal offense, at his option.

Thus, the likely reason the president ended up using law-enforcement personnel to arrest the Lackawanna Six was because in this particular case, he was opting to treat them as criminal defendants.

But what the Times obviously doesn’t get is that if the president had chosen to treat the Lackawanna Six as enemy combatants in the global war on terrorism, then he would have had the authority to send the army to attack their position, kill them, take the survivors into military custody, whisk them away to a military dungeon, and keep them incarcerated until the end of the war. That’s the way war works!

In World War II, if Japanese troops had invaded California wouldn’t the president have had the authority to send the military to fight and kill them? Of course he would have. Well, that’s precisely why President Bush claimed the legal authority to send the military to attack, kill, or seize the Lackawanna Six. Let’s not forget, after all, that in the war on terrorism, the entire world is a battlefield, including the United States.

The Times writes: “The Posse Comitatus Act of 1878 generally prohibits the military from law enforcement activities within the United States. If armed officers are going to knock on Americans’ doors, or arrest them in the streets, they should answer to civilian authorities.”

Again, what the Times misses is that with the adoption of the war-on-terrorism paradigm after 9/11, the Posse Comitatus Act became irrelevant insofar as terrorism cases are concerned, at least when the president opts to treat a particular act of terrorism as an act of war rather than a criminal offense.

The same holds true for the Bill of Rights. Although there has never been a constitutional amendment prohibiting its application in terrorism cases, it is no longer applicable in those terrorism cases where the president has opted to treat the suspected terrorist as an enemy combatant rather than a criminal defendant.

The discomforting fact — one that even the editorial board at the New York Times is obviously having difficulty confronting — is that the president now wields the authority to send the military into any community in America and take suspected terrorists into custody and treat them accordingly, once he opts to treat them as enemy combatants rather than criminal defendants. If the president had chosen this route for the Lackawanna Six, he would not have been violating the law, as the Times claims, but instead exercising his post-9/11 constitutional authority as commander in chief to wage war.

Of course, there is only one solution to this nonsense. The solution lies in the recognition that terrorism is a crime, not an act of war, and in the nullification of the president’s post-9/11 discretionary power to treat terrorism as either one.

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.