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Losing Liberty for Security with the Padilla Case

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The Jose Padilla case is back in the news. The 11th Circuit Court of Appeals has ruled that the 17-year sentence handed down by the presiding district judge was too lenient. The court has ordered the case remanded to the judge with instructions to consider a much higher sentence.

Although it might be little-known among the American people, the Jose Padilla case is quite possibly the most important legal case in our lifetime in terms of the freedom that Americans lost on 9/11.

The greatest power that any dictator can have is the power to seize a person, cart him away to a prison, concentration camp, or dungeon and keep him there for as long as the dictator wants and to torture, abuse, humiliate, or even execute him, perhaps after some sort of kangaroo trial. Of course, this is not to suggest that the dictator does these things himself. He has a powerful military, an intelligence force, or national police who loyally carry out his orders to do these things.

That’s the power that Middle East dictators have had for decades, justifying them under emergencies dealing with drugs and terrorists. In fact, Egyptian dictator Hosni Mubarak, a longtime friend and ally of the U.S. government and whose military and the U.S. military worked closely together, wielded this emergency power for some 30 years, given that drugs and terrorism continued threatening the national security of Egypt during that period of time. It was that emergency power, among others, that the Egyptian protestors wanted eliminated. Even after Mubarak’s fall, the military regime in Egypt refuses to relinquish this extraordinary dictatorial power over the citizenry. .

That is the power that the president of the United States now wields — the same power that the U.S.-supported dictator Hosni Mubarak wielded — the same power that dictators have wielded throughout history. President Obama, like President Bush before him, now wields the emergency, post-9/11 power to use U.S. military forces to take any American into custody, hold him indefinitely, and torture and abuse him.

Are there any conditions on the exercise of such power? One — that the person be labeled a terrorist by the military, the CIA, or the president. Once that label is affixed onto the person, the dictatorial power is unleashed.

How did such extraordinary dictatorial power come to be acquired by the president of the United States in what purports to be a free country? No, not through legislative enactment, as Mubarak did it. And no, not through constitutional amendment, as our system requires. Bush simply decreed after 9/11 that he now wielded such power as a military commander in chief waging war — the “war on terrorism.” In such a war, the entire world is the battlefield and the enemy can consist of anyone, including American citizens, U.S. officials said.

Would the courts actually uphold the assumption of such extraordinary dictatorial power? They already have. That’s what the Padilla case was all about. That’s why statists have celebrated ever since that case was decided. They knew what many Americans do not know — that the ruling in Padilla didn’t just apply to him but rather to all Americans.

Jose Padilla is an American citizen. He was taken into custody and labeled a terrorist. The president removed him from the jurisdiction of the federal courts and placed him in the custody of military officials, who promptly placed him in isolation into a military dungeon, where they kept him for more than 3 years. As a result of the torture, the likelihood is that Padilla has suffered permanent mental damage.

At no time did any military officials refuse to participate in the arrest, incarceration, and torture of Jose Padilla. Like in Egypt under Mubarak, the military loyally followed orders to treat this American citizen in that way. In their minds, the troops were “defending our freedoms” when they loyally obeyed the orders of the president to do this to Padilla.

As Padilla’s petition for writ of habeas corpus was working its way through the federal courts, government lawyers were telling federal judges that national security turned on treating Padilla as an enemy combatant rather than a criminal defendant.

But it was all a lie. As soon as the government received a favorable ruling from the court of appeals, the government immediately converted Padilla to criminal defendant status. The military, after loyally following orders to treat Padilla as an enemy combatant, loyally followed orders to release him to the jurisdiction of the federal courts.

What was the benefit to the government of doing this shifting and maneuvering? U.S. officials knew that they now had a federal appellate court holding saying that the president of the United States, together with his military forces, now wields this extraordinary power. Since Padilla was appealing that holding to the Supreme Court, there was the possibility that the Supreme Court could overturn the ruling. By quickly converting Padilla to criminal-defendant status, the Supreme Court was denied jurisdiction to consider the case. That left the Court of Appeals decision intact.

That means that the government now wields the legal authority under the Padilla decision to do to Americans what they did to Padilla. All they need is the right “crisis” and they’ll have the same power that Mubarak had — the power that dictators throughout history have wielded.

Sure, the Supreme Court could ultimately overturn that ruling but that would take a long time, most like more than a year — plenty of time to brutally torture and abuse people labeled as “terrorists.”

It’s been said that 9/11 changed the world. That is most definitely true when it came to the president’s dictatorial power to arrest, incarcerate, torture, and abuse Americans. Just ask Jose Padilla, who was treated as an “enemy combatant, where he was subjected to indefinite incarceration and torture by the military, and ended up as a criminal defendant with a 17-year sentence that has now been adjudged as too lenient.

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.