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Terrorism and the Bill of Rights

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In the aftermath of the Boston bombings last spring, GOP Sens. John McCain and Lindsey Graham and others called on Barack Obama to treat the surviving suspect in the bombings, Dzhokhar Tsarnaev, as an “enemy combatant” rather than as a criminal defendant. The episode highlighted the revolutionary change in the relationship of the American people to the federal government that took place in the wake of the 9/11 attacks. For while Obama rejected the plea to treat Tsarnaev as an enemy combatant, no one can dispute the fact that the president of the United States now wields the discretionary authority to go either way — enemy combatant or criminal defendant — with respect to people who are suspected of being terrorists.

Ever since 9/11 the president of the United States, together with the Pentagon and the CIA, has been wielding extraordinary emergency powers that historically have been wielded by the most powerful dictators in history. They include the power of the government to seize people, including Americans, cart them away to a military dungeon or concentration camp, torture them, keep them incarcerated indefinitely, and even execute them, perhaps after some sort of kangaroo military tribunal — all without judicial process to determine whether the person had done anything to warrant such treatment.

Such powers also include the power to assassinate people, including Americans, again without any sort of formal charges, trial by jury, due process of law, or other procedural rights and guarantees.

Consider, for example, Egypt under Hosni Mubarak’s military dictatorship and Chile under the military dictatorship of Augusto Pinochet. Those two dictators wielded the extraordinary emergency powers that the president of the United States now wields. (It is worth noting that Mubarak and Pinochet wielded such powers with the full support of the U.S. national-security state, which helped them fortify their dictatorial hold over their citizenry.)

How did such a revolutionary transformation take place in the United States? After all, doesn’t the Constitution determine the extent of the government’s powers over the citizenry? Where does the Constitution grant those dictatorial powers to the president?

Those extraordinary powers at the hands of U.S. officials arose in the immediate aftermath of the 9/11 attacks. George W. Bush declared that the 9/11 attacks were an act of war and that America was now formally at war, just as in World War I and World War II, only this was a “war on terror” rather than a war against nation-states such as Germany and Japan. The president decreed that he now wielded all the powers of a military commander in chief, including the power to employ the military to capture and kill the enemy.

Since it’s legal to kill the enemy in wartime, Bush, and later Obama, said that U.S. forces now had the legal authority to kill terrorists anywhere in the world. Obama would use the same reasoning to justify his drone assassination program, a program by which the Pentagon and the CIA are permitted to kill people, including Americans, without explanation or justification to anyone.

Moreover, since the terrorists were waging war without wearing uniforms, Bush reasoned, they were illegal enemy combatants. That meant that they weren’t entitled to the protections of the Geneva Convention, which prohibits torture of prisoners of war.

U.S. officials made it clear that this particular war, unlike most other wars, would continue for a very long time, in fact longer than the lifetimes of most Americans living at that time. It would very likely take decades, they said, for U.S. forces to finally prevail in the war on terrorism.

Moreover, this war was global in nature, Bush told the American people. Terrorists are located not just in Iraq, Afghanistan, Pakistan, and Yemen. They are everywhere, including right here in the United States. That means that the entire world is the battlefield in the war on terrorism. Thus Bush’s extraordinary powers by which he would employ the military and the CIA to capture, torture, incarcerate, and kill the enemy would extend to every country in the world.

Federal crime

There was one big problem, however, with Bush’s reasoning: Terrorism is a criminal offense. It is listed in the U.S. Code as a federal crime. People who are accused of terrorism have long been prosecuted in federal district court. If they are acquitted, they’re set free. If convicted, they are sentenced to die or to serve time in a federal penitentiary.

Since terrorism is a criminal offense, it shouldn’t surprise anyone that there have been lots of people who have been criminally prosecuted for terrorism in federal court. One notable example is a man named Zacharias Moussaoui, who was charged with having conspired to participate in the 9/11 attacks. At the behest of the U.S. Justice Department, he was indicted for terrorism by a federal grand jury, prosecuted in federal court, convicted, and sentenced. He is now residing in a federal penitentiary rather than in a prisoner of war camp.

The same holds true for a man named Ramzi Yousef. He was charged in federal court with the terrorist attack on the World Trade Center in 1993, an attack that was, in principle, no different from the 9/11 attacks that would take place eight years later. After a few years on the lam, Yousef was arrested in Pakistan, brought to the United States, prosecuted for terrorism in federal district court, convicted, and sentenced. Like Moussaoui, he now resides in a federal penitentiary rather than a POW camp.

Is there any difference between treating someone as an enemy combatant in the war on terror and as a criminal defendant charged with terrorism? The difference is like night and day.

If a person is treated as a criminal defendant, under our system of justice he is presumed to be innocent. That’s why we refer to people who are charged with the crime of terrorism as suspected terrorists or accused terrorists. The government must prove that the person actually committed the crime. That burden of proof is not an easy one to meet. The government must prove the person’s guilt beyond a reasonable doubt.

That’s not all. The trial is held in a federal courtroom and is open to the public. The defendant is entitled to be formally notified of what exactly he’s charged with, which enables him to prepare a defense to the charge. Moreover, the defendant can elect to have a jury of ordinary American citizens hear the evidence and determine whether the government has met its burden of proof.

The government is prohibited from torturing the accused into confessing to the crime. In fact, if the accused chooses to remain silent during the trial, there is nothing the government can do about it. The accused person is also entitled to have a lawyer defend him against the government’s lawyers. He can cross-examine the government’s witnesses in an attempt to show that their testimony is false or deceptive. He can summon witnesses in his own behalf.

If the defendant is acquitted, he walks out of the courtroom a free person because the jury’s verdict is final.

Overturning the Bill of Rights

In other words, under our system of justice a person charged with the federal crime of terrorism is entitled to all the procedural rights and guarantees provided in the Bill of Rights, specifically those enumerated in the Fourth, Fifth, Sixth, and Eight Amendments to the Constitution.

Why did our American ancestors demand the enactment of the Fourth, Fifth, Sixth, and Eight Amendments immediately after the federal government was called into existence with the Constitution? It was owing to their deep concern that the federal government would end up arresting, incarcerating, torturing, and killing people for illegitimate reasons, something that tyrannical regimes had done throughout history.

One of the earliest instances of citizen resistance to the wielding of such omnipotent power took place in the year 1215. That was when the barons of England forced their own king — King John — to formally acknowledge that his powers over the English people were limited, not omnipotent. In the Magna Carta, the king acknowledged that he could no longer go against people or their property in violation of “the law of the land.” That phrase would ultimately evolve into the phrase “due process of law” that our ancestors employed in the Fifth Amendment.

Thus when Bush began wielding the discretionary power of treating a person as either a suspected terrorist or a criminal defendant, he brought about a revolutionary transformation in the Bill of Rights, without even the semblance of a constitutional amendment. The president, the Pentagon, and the CIA now had the authority to circumvent the Fourth, Fifth, Sixth, and Eight Amendments to the Constitution whenever they wanted.

The most notable example of this discretionary authority involves an American citizen named Jose Padilla. Accused of terrorism, he was labeled an enemy combatant, taken to a military dungeon in South Carolina, and incarcerated and tortured for three years. Afterwards, U.S. officials suddenly converted him to criminal-defendant status, indicting him and convicting him of terrorism.

It’s important to note that what they did to Padilla they can now do to every other American.

Another notable example involves the cases of two American citizens, Anwar al-Awlaki and his 16-year-old son Abdulrahman. Anwar al-Awlaki was suspected of being a terrorist. U.S. officials decided to label him an enemy combatant rather than a criminal defendant. U.S. officials then assassinated him in Yemen. It’s not clear why they also assassinated his 16-year-old son because Obama, the Pentagon, and the CIA have steadfastly maintained silence with respect to the boy’s assassination. Their position is that the war on terror and “national security” entitle them to remain silent on why they assassinate people, including Americans, as part of that war.

The president, the Pentagon, and the CIA now wield the post–9/11 legal authority to do to any American what they did to Anwar and Abdulrahman al-Awlaki. That includes assassinations on American soil because, don’t forget, this is a global war on terrorism. And they don’t have to explain or justify any killing as long as they intimate that the assassination relates to the war on terror.

It’s important to note that under this bifurcated system, two people who commit the same offense can be treated in two completely different ways. It would be difficult to find a better example of a violation of the principles of the rule of law and equal treatment under the law. It’s also important to note that the Pentagon now takes the position that it is no longer bound by a jury verdict of acquittal in a federal district court trial of an accused terrorist. Even if a jury decides that the government hasn’t met its burden of proof, the Pentagon can nonetheless take the person into custody and treat him as an enemy combatant.

The extraordinary powers now wielded by the president, the Pentagon, and the CIA are clearly not what our American ancestors had in mind when they enacted the Constitution and the Bill of Rights. There is no way to reconcile such dictatorial powers and such an arbitrary and capricious system with the principles of a free society.

This article was originally published in the July 2013 edition of Future of Freedom.

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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.