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The Enemy-Combatant Attack on Freedom, Part 2

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Another revolutionary aspect of the enemy-combatant doctrine was how the discretionary power to treat suspected terrorists, including Americans, as enemy combatants was acquired by the president and the Pentagon. Despite the assumption of this monumental power by the executive branch, there never was a constitutional amendment authorizing it. Initially, there wasn’t even a law enacted by Congress granting such power to the president. Instead, the president simply announced that as a result of 9/11 and his “war on terrorism,” he and the military now possessed the power to treat anybody suspected of terrorism — American or foreigner — as an enemy combatant.

But it wasn’t as if other presidents had not declared a war on terrorism. The war-on-terrorism verbiage, in fact, goes back to Ronald Reagan and was carried forward through the presidencies of George H.W. Bush and Bill Clinton. Nevertheless, their administrations continued to treat terrorism as a criminal offense — not a surprise, given that terrorism has always been treated as a crime rather than as an act of war. What enabled the current President Bush and the Pentagon to succeed with their acquisition of such unique and omnipotent power was the magnitude of the 9/11 attacks, along with the massive amount of fear that the attacks generated within government officials and the American people.

Imagine that a Mexican drug cartel sneaks into El Paso and blows up the building housing the Drug Enforcement Administration, killing hundreds of DEA officials. After the attack, President Bush announces a war on drugs and a war on illegal immigration. He declares that from that day forward he and the Pentagon will have the option of sending a suspected drug dealer or illegal immigrant into the normal criminal-justice channels or labeling him an enemy combatant in the war on drugs or the war on illegal immigration.

Ridiculous? You bet! But that’s exactly what Bush and the Pentagon did after 9/11. They took a figure of speech — “war on terrorism,” which is no different from the “war on drugs” or “war on crime” or “war on the Mafia” — and assumed a power that constitutes the most direct assault on American liberty in our nation’s history.

The power to treat an American as an enemy combatant trumps all the rights and guarantees of the American people. Freedom of speech, freedom of the press, the right to assemble, the right to bear arms, due process of law, and all the rest of the guarantees in the Bill of Rights are effectively rendered meaningless in the face of the power to label a person an enemy combatant.

Why is this so? How effective is any of those rights or guarantees in a society in which the ruler and his military can simply go out and arrest, torture, detain indefinitely, and even execute anyone they want, simply by placing the label “enemy combatant” on him?

Imagine, for example, an anti-war protester’s being water-boarded for his unpatriotic opposition to the war on terrorism. He might scream, “I’ve got the right to speak my mind and criticize the government!” The torturer would respond, “Well, of course you do. But we have our ‘rights’ too, and they include taking you into custody as an enemy combatant and treating you accordingly.”

Do people have any real protection against being labeled and treated as enemy combatants? In 2006, at the behest of President Bush, the Congress enacted the Military Commissions Act, which codified into law the enemy-combatant power that the president and the Pentagon assumed after 9/11. Under that law, any person, American or foreigner, suspected of terrorism can be labeled and treated as an enemy combatant.
The role of habeas corpus

One of the major differences, however, between foreigners and Americans — a shameful one, given its unequal treatment — related to habeas corpus. Congress removed the jurisdiction of the federal courts to hear habeas corpus petitions filed by foreign terrorist suspects who had been labeled enemy combatants. Americans accused of terrorism, on the other hand, were still entitled to employ habeas corpus.

But if anyone is thinking that habeas corpus provides real protection for Americans labeled enemy combatants, he would be wise to think again. It doesn’t. Recall that in a habeas corpus proceeding, the government must meet two prongs of a test: First, it must show that the reason for the detention is valid and, second, it must show some evidence that the detainee has committed the offense.

If the enemy-combatant doctrine were to be ruled unconstitutional, the game would be over for the government, and the court would order the military to release the detainee from custody, no matter how much evidence the government could show implicating the detainee in terrorism. The government’s recourse would be to charge the person with terrorism and prosecute him in federal district court, as the government has done with Zacarias Moussaoui, Jose Padilla, and many others.

But once the enemy-combatant doctrine is ruled constitutional, the game is virtually over in favor of the government. At that point, at the habeas corpus hearing all the government has to do is provide some evidence that the prisoner has committed some act of terrorism, at which point the court will deny the petition and order the detainee to remain in the custody of the military.

Would the government be able to come up with some evidence of terrorism in the case of an anti-war critic who had been labeled an enemy combatant? Of course it could, even if it had to do a bit of manufacturing. It could, for example, introduce hearsay, which would entail testimony similar to this: “A CIA agent, whose identity must be kept secret, told me that that the detainee had met with a member of al-Qaeda and discussed how anti-war protests could help bring down the federal government.”

How much evidence would be required at the habeas corpus hearing to support the president’s finding that the petitioner is, in fact, an enemy combatant? Not very much, especially in a 9/11-type environment in which fear is in hyper-drive and terrorism color codes are bright red. In fact, in Jose Padilla’s original habeas corpus proceeding in New York, the government took the position that the president’s judgment declaring a person an enemy combatant is almost absolute and that judges should defer to his judgment in the matter rather than conduct a searching fact-finding in the case.
The Padilla and al-Marri cases

The Padilla case provides a baseline for what the government can do to any and all Americans. After all, don’t forget that Padilla is an American citizen. And that’s only an initial baseline. If the courts definitely uphold the enemy-combatant power, the government will be able to treat American enemy combatants in the same way that it has treated foreign enemy combatants at Guantanamo Bay and the various secret CIA facilities around the world — i.e., with torture and sex abuse; rendition; and denial of due process, effective assistance of counsel, and trial by jury. At that point, the government’s power over the American people will be omnipotent and complete, especially in a time of deep crisis or emergency.

What is the status of the enemy-combatant doctrine? As of right now, it is in full force and effect. As a result of the government’s legal maneuvering in the Padilla case, the government has a ruling from the Fourth Circuit Court of Appeals upholding the enemy-combatant doctrine. While it’s theoretically possible that the Supreme Court could rule on the issue in Padilla’s appeal of his criminal conviction, it’s not a certainty. Padilla’s appeal will primarily focus on the sufficiency of the evidence to support his conviction, not his status as an enemy combatant prior to the time he was transferred to the jurisdiction of the federal courts.

However, the Supreme Court might yet have the opportunity to rule on the enemy-combatant doctrine in another case — that involving a foreigner named Ali al-Marri. Al-Marri was indicted for terrorism and was set to go to trial in a U.S. district court. Prior to trial, however, the government moved to dismiss the charges. As soon as the charges were dismissed, the U.S. military took him into custody as an enemy combatant in the war on terrorism.

Al-Marri filed a petition for writ of habeas corpus. (The Military Commissions Act had canceled habeas corpus only for foreigner enemy combatants held outside the United States.) The district court upheld the enemy-combatant doctrine. On appeal, a three-judge panel of the Fourth Circuit Court of Appeals rejected the enemy-combatant doctrine and ruled that al-Marri had to be either prosecuted in federal district court or released. That didn’t sit well with the government, especially since the original judge in al-Marri’s criminal case had granted the government’s motion to dismiss with prejudice, meaning that the government is barred from refiling the criminal charges against al-Marri.

It is interesting that the Fourth Circuit’s three-judge ruling striking down the enemy-combatant power in the al-Marri case was in direct conflict with the Fourth Circuit’s ruling in the Padilla case upholding the enemy-combatant doctrine. Thus, it shouldn’t surprise anyone that the full Fourth Circuit Court of Appeals is now considering the al-Marri case.

The likelihood is that the Fourth Circuit will uphold the enemy-combatant doctrine, especially given that it is the most conservative federal appeals court in the country. No matter which side loses, however, the losing side is almost certain to appeal to the U.S. Supreme Court, which most likely will no longer be able to avoid ruling on the matter.

A war on Iran

The enemy-combatant power must be considered in the context of the president’s possible attack on Iran. If the president follows through with such an attack, it is entirely conceivable that it will produce terrorist blowback, both in the United States and elsewhere, by people sympathetic to the Iranian people. If such terrorist attacks are on the magnitude of the 9/11 attacks, then Americans might well have the opportunity to witness the full exercise of the enemy-combatant power now wielded by the president and the Pentagon.

What would that mean? It would mean that every American would be subject to being treated in the same way that Jose Padilla was treated prior to his being converted to a federal-court defendant. That is, with the enemy-combatant doctrine, the president could order the military and the CIA to take any American into custody as an enemy combatant in the war on terrorism. That person could then be isolated, tortured (although they wouldn’t call it torture), held in prison for the rest of his life, and executed after a kangaroo military hearing presided over by agents of the Pentagon. He could file a petition for writ of habeas corpus in federal district court but it very likely wouldn’t do him any good because the judge would be unlikely to second-guess the judgment of the president and the military, especially in time of war.

Keep in mind that the government didn’t have to bring Padilla into federal court as a criminal defendant. Under the government’s interpretation of the enemy-combatant doctrine, it could have kept Padilla in military incarceration for the rest of his life, subject of course to periodic bouts of torture. Keep in mind also that when the district judge in Padilla’s criminal case ruled on the criminal indictment against Padilla, knowing what the military had done to him for the previous three years, including denying him a speedy trial, the judge was not sufficiently outraged by the government’s conduct to order a dismissal of the criminal charges against him.

There is obviously no way to reconcile the enemy-combatant power with the principles of a free society. If the enemy-combatant power is ultimately upheld, it will hang over the heads of the American people like a Damocles sword, especially during times of crisis or emergency, when the round-ups could begin at any time. The eradication of the enemy-combatant power, either through judicial ruling or congressional action, is the most important prerequisite to restoring liberty to our land.

Part 1 | Part 2

This article originally appeared in the February 2008 edition of 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.