Hornberger's Blog

Hornberger's Blog is a daily libertarian blog written by Jacob G. Hornberger, founder and president of FFF.
Here's the RSS feed or subscribe to our FFF Email Update to receive Hornberger’s Blog daily.

Criminal Offenses vs. Acts of War

by

As I have been emphasizing ever since the 9/11 attacks, terrorism is a criminal offense, not an act of war. That’s precisely why the U.S. government secures criminal indictments issued by federal grand juries against people it accuses of having committed terrorist acts. The federal attorneys, the federal grand jurors, and the federal judge that receives the indictments all know that terrorism is a federal criminal offense.

If a Pentagon official rushed into federal court and exclaimed, “Your honor, these cases don’t belong here because terrorism is an act of war,” the federal judge would laugh him out of court, pointing the official to the U.S. Code, which expressly enumerates terrorism among the many federal crimes.

Thus, it shouldn’t surprise anyone that many accused terrorists have been charged, prosecuted, and tried in federal district court. They include people who were accused of participating in the 1993 terrorist attack on the World Trade Center, the 9/11 terrorist attacks, the terrorist attacks outside CIA headquarters, the terrorist attack on a federal building in Oklahoma City, the attempted terrorist attack on the airliner coming into Detroit, and many others.

I recently received an email, however, asking why a terrorist attack can’t be considered both an act of war and a criminal offense. It’s a great question. The reason is this: It would enable federal officials to circumvent the rights and guarantees provided by the Bill of Rights to protect people who are accused of criminal offenses.

When the federal government was called into existence by the Constitution in 1787, our American ancestors were deeply concerned over the possibility that this new government would end up subjecting people to such things as arbitrary searches and seizures, indefinite incarceration, torture, and execution for no good reason, much as their predecessor government—the British government—had done to people.

That’s why they demanded the enactment of four separate amendments to protect themselves from that possibility: the Fourth, Fifth, Sixth, and Eight Amendments. Notice that those four amendments don’t involve inherent, God-given rights. Instead, they involve procedural rights and guarantees that prevent the federal government from doing bad things to people without judicial process, including trial by jury.

Among the restrictions on power is the one that prohibits the federal government from depriving a person of life and liberty without “due process of law,” a phrase that stretches back to Magna Carta, when the barons of England extracted an admission from King John that his powers over the citizenry were limited.

Thus, before the government can kill someone or otherwise punish him for what it considers to be a crime, it must first follow long-established procedures, such as a formal charge notifying the person of exactly what he is being charged with, trial by jury, competent and relevant proof beyond a reasonable doubt, the right to cross-examine witnesses, the right to summon witnesses, to right to remain silent, the right to testify on one’s behalf, and more. The basic idea is to provide people with the opportunity to show that they’re not guilty and therefore shouldn’t be subjected to execution or other punishment. In fact, people also have the right to show that the offense that they’re being charged with isn’t even a legitimate crime (e.g., criticizing the government).

If the government has the option of simply treating a crime as an act of war, all those protections obviously go out the window. That’s because in war, it’s considered legal to kill the enemy. Thus, if the government has the authority to label a criminal offense as either a crime or an act of war, that option obviously serves to enable the government to avoid the procedural protections provided in the Bill of Rights.

That’s precisely what happened after 9/11, when President Bush decreed that from that date forward, the president, the Pentagon, and the CIA now wielded the authority to treat a suspected terrorist as either a criminal defendant or an illegal enemy combatant, at their option. That’s why some terrorist suspects have received the federal court route while others have received the military route. In fact, one guy, an American citizen named Jose Padilla, even received both routes!

Of course, it would be difficult to find a better example of an arbitrary and capricious system than that, for you could have two people who have purportedly committed the same act being treated in two completely opposite ways. That’s not only a severe violation of the principles of equal treatment under law and the rule of law, it also just happens to be a hallmark of totalitarian regimes.

Some people might think that simply because the military is involved in an operation, that automatically makes it an act of war. That’s ridiculous. Simply because the military is enforcing criminal laws doesn’t convert the matter into a wartime situation. It simply means the military is being used to do the work of the police. It remains a criminal-justice problem even if the military is engaged in it.

We see this all the time in Latin America. In that part of the world, the U.S. military, the CIA, Latin American militaries and intelligence forces, and Latin American police work together to wage the war on drugs. In the process, they’re killing people regularly. The fact that the Pentagon and the CIA and Latin American militaries are engaged in enforcing the drug war doesn’t convert the drug war into a real war, like World War I and World War II. It simply means that the military is being used in a police capacity.

Here in the United States, the American people prohibit the U.S. military from getting involved in enforcing criminal laws. That’s what the Posse Comitatus Act is all about. But that’s simply a policy decision. Americans think it’s a bad idea to have the military involved in police work, in large part because the mindset of the military and CIA is kill, kill, kill while the mindset of the police is, generally speaking, apprehend and bring to justice. (It’s interesting to note that while we don’t want the military and CIA enforcing criminal laws here at home, we have no problems with dumping them on the Latin Americans to enforce the drug war in their countries.)

Let’s assume that some big drug cartel declares war on federal agents and goes on a killing and bombing spree in New Mexico. Using high-powered weaponry and large bombs, hundreds of federal law-enforcement officers are killed and several federal buildings are bombed. Let’s say that the local and state police feel badly outgunned and seek the help of the military and its more powerful and advanced weaponry. Let’s say that Congress authorizes the military and CIA to get involved and go after the cartel.

That would still not convert the drug war into a state of war, like World War I and World War II. The military would simply be involved in enforcing drug laws and laws against murder, mayhem, and terrorism. The military would simply be serving in a police capacity.

The same would apply to, say, the Mafia. If it were to declare war on the United States and go on a murder spree, theoretically the military could be brought in to augment police forces. Again, however, that would not be a real war. It would simply constitute bringing more police power to bear against a well-armed criminal gang.

Many years ago, a DEA agent named Enrique Camarena was kidnapped, tortured, and killed in Mexico. Realizing that the Mexican government might not be willing to extradite the people suspected of the crimes to the United States, DEA agents went into Mexico and kidnapped the people who were suspected of having done those things to Camarena and brought them back into the United States. Although the operation was illegal under Mexican law, U.S. courts sustained the convictions of the people accused of the crime.

What if the military or the CIA, rather than the DEA, had conducted the operation? It would be no different. It would still be a police action, one in which the military was illegally entering the jurisdiction of a foreign country, apprehending people suspected of having committed criminal offenses, and bringing them back to the United States for trial. It would not be a state of war, like World War I and World War II, against the suspected criminals simply because it was the Pentagon, rather than the CIA, conducting the operation.

The matter was no different with respect to Osama bin Laden and every other person suspected of having conspired to commit the 9/11 attacks. Bin Laden and the others stood in no different position than, say,  Zacharias Moussaoui, who was tried in federal district court for complicity in the 9/11 terrorist attacks, or, for that matter, than Ramzi Yousef, who was tried in federal district court for the 1993 terrorist attack on the World Trade Center.

Thus, although the Pentagon was used to go into Afghanistan to apprehend bin Laden, the matter nonetheless remained a police matter, one in which the military was being used to bring its overwhelming firepower to bear against a well-armed suspected criminal gang that was resisting apprehension with significant force.

So, what constitutes a real war, like World War I and World War II? When the Afghanistan government refused to grant President Bush’s request to extradite bin Laden to the United States, the president declared and waged war against Afghanistan, in addition to attempting to apprehend bin Laden within Afghanistan. The war against Afghanistan, as compared to the attempt to apprehend bin Laden, was in fact a real war, just like World War I and World War II, albeit illegal owing to the fact that Bush never secured a congressional declaration of war as the Constitution requires.

Thus, real wars take place between nation-states, not between nation-states and criminal gangs, drug cartels, the Mafia, and the like. In the latter cases, they remain police actions, whether it’s the military, the police, the DEA, or some other federal agency being employed to bring the suspects to justice. In that case, the suspects, whether foreign or American, are entitled to all the protections provided in the Fourth, Fifth, Sixth, and Eighth Amendments.

Like it or not, that’s the system bequeathed to us by the Framers. If some Americans don’t like it, they’re free to try to try to secure a constitutional amendment to change it. In the meantime though, it remains the law — the supreme law that federal officials are supposed to obey.

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.