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Torture as Due Process

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After 9/11, the word of the president was supposedly the only protection that the rights and liberties of the American people needed. After 9/11, President Bush granted himself unlimited, unchecked power over anyone in the world suspected of being a terrorist. The Supreme Court, in a series of rulings on June 28, 2004, trimmed that power by recognizing that in some cases enemy combatants may challenge in federal courts the label the Bush administration imposes upon them. But the president continues to hold far more arbitrary power then he did prior to 9/11.

The story of how Bush proclaimed and exploited the power with respect to enemy combatants vivifies the war on terrorism’s threat against the U.S. Constitution. On November 13, 2001, Bush issued an executive order establishing military tribunals for the trial and potential execution of any person he labeled an “enemy combatant.” He dictated that people classified as enemy combatants “shall not be privileged to seek any remedy … directly or indirectly … in any court of the United States.”

Bush defined enemy combatants as persons whom the president has “reason to believe” are current or former members of al-Qaeda, or someone who “has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury or adverse effects on the United States, its citizens, national security, foreign policy, or economy.” A person can also be labeled an enemy combatant if he is suspected of having “knowingly harbored” such malefactors. At the time that Bush issued his edict, he specified that it would apply only to “noncitizens.” His orders authorized the seizure of terrorist suspects within the United States and abroad and authorized the tribunal to “sit at any time and any place.”

Initially, the order primarily applied to the roughly 600 persons seized in Afghanistan during the U.S. invasion. Those persons were transported to Guantanamo Naval Base in Cuba and kept in sometimes harsh conditions.

In April 2002, the Pentagon revealed that one person being held at Guantanamo was actually a U.S. citizen. And two months later, Attorney General John Ashcroft announced that an American arrested in Chicago had been classified as an enemy combatant. The case of Jose Padilla sent shockwaves, in part because it made stark that there may be no limit on Bush’s power.

The Supreme Court agreed in early 2004 to consider cases involving enemy combatants. In a January 2004 brief to the Court, the Bush administration stressed the president’s right to label American citizens as enemy combatants and nullify all of their rights. Bush’s solicitor general, Theodore Olson, urged the Court to uphold this power because a lower federal court decision denying Bush’s prerogative “undermines the president’s constitutional authority to protect the nation.” For the Bush administration, the “constitutional authority to protect the nation” automatically nullified the rest of the Constitution.

The Bush administration argued to the Supreme Court that a federal court can “only require the military to point to some evidence supporting its [enemy combatant] determination.” “Pointing to” supposed evidence is not a high standard of proof. The administration also argued that federal judges should have no right to examine the evidence provided by the military. In other words, it requires a mere memo to justify incarcerating someone in perpetuity with no escape. The word of the executive branch is supreme, without challenge.

The Supreme Court heard oral arguments on two enemy-combatant cases on April 28, 2004. Frank Dunham, representing Yaser Hamdi, a U.S. citizen taken into custody in Afghanistan during the U.S. invasion, sought a hearing that his client had been denied for the two years he had been held at a Navy brig in Norfolk, Virginia. The Bush administration refused to permit Hamdi to have any contact with legal counsel until shortly before the Supreme Court hearing. Dunham explained that he was prohibited by the U.S. military from revealing in court anything that Hamdi had told him.
Enemy combatants

Dunham complained that the term “enemy combatant” was vague:

We don’t find it defined in any case, we don’t find it defined in any statute, and it hasn’t been defined by regulation or by anything that’s been filed in this case.

Justice Scalia sounded indignant at Dunham’s quest for clarity:

I assume it means someone who is — has taken up arms against the armed forces of the United States. Isn’t that — really, I mean, do we have to quibble about that word?

Dunham made clear that the question of whether Hamdi was fighting against American forces was in dispute.

The Justice Department’s Paul Clement, arguing the case for the Bush administration, mentioned three times that 10,000 U.S. troops are still in Afghanistan. He declared, “I find it so remarkable that we have to confront this question when our troops are still on the ground in this case.” But the issue was not whether Hamdi should be released to go fight in Afghanistan. The question was what procedural rights an American citizen deserves. Clement implied that no one had a right to question Bush’s power until after the government announced final cessation of hostilities.

Clement repeatedly stressed that “the United States military has no interest in detaining any individual who’s not an enemy combatant or who does not present a continuing threat.” But President Bush and many other officials often bragged about how many enemy combatants are being held, implying that the raw number is proof the United States is winning. Of course, once a person is labeled an enemy combatant, the government cannot release him without admitting that it made a mistake.
Military interrogations

Several justices were concerned about the apparent total lack of due process that Hamdi — and any other U.S. citizen — might receive under the Bush administration’s new system. Justice Breyer pushed Clement on whether “a person who contests something of importance is entitled to a neutral decision-maker and an opportunity to present proofs and arguments.” Clement stressed, “Let me say very clearly that these individuals have gotten military process.” Clement explained that “it may not seem what you think of as traditional due process … but the interrogation process [at Guantanamo] itself provides an opportunity for an individual to explain that this has all been a mistake.” Justice Ginsburg pressed as to whether “the person who is locked up, doesn’t he have a right to bring before some tribunal himself, his own words?” Clement replied that “he has an opportunity to explain it in his own words.” Justice Stevens asked, “During interrogation?” Clement confirmed: “During interrogation.”

But the interrogations Clement practically idealized are not quite the same as taking a deposition in the office of some law clerk. As one U.S. government official who supervised the capture and transfer of accused terrorists declared in 2002, “If you don’t violate someone’s human rights some of the time, you probably aren’t doing your job.” The Washington Post interviewed 10 U.S. national security officials. “While the U.S. government publicly denounces the use of torture, each of the current national security officials interviewed for this article defended the use of violence against captives as just and necessary,” the Post reported. Suspected members of al-Qaeda receive especially vigorous treatment:

Captives are often “softened up” by MPs and U.S. Army Special Forces troops who beat them up and confine them in tiny rooms. The alleged terrorists are commonly blindfolded and thrown into walls, bound in painful positions, subjected to loud noises and deprived of sleep.

Such circumstances and treatment may impede a detainee’s ability to explain his case to even the most impartial and lofty-minded interrogator. None of the Supreme Court justices asked about the interrogation methods used on the detainees. Dunham responded to the Bush administration’s rosy scenario:

Here there is no law. If there is any law at all, it is the executive’s own secret definition of whatever “enemy combatant” is. And don’t fool yourselves into thinking that that means somebody coming off a battlefield, because they’ve used it in Chicago, they’ve used it in New York, and they’ve used it in Indiana.

The Jose Padilla case

The Court also heard the Padilla case. The Court’s consideration on this case turned in part on a sentence from a congressional resolution in September 2001:

The president is authorized to use all necessary and appropriate force against persons he determines planned, authorized, committed or aided the terrorist attacks.

Justice Breyer asked Clement whether the phrase “necessary and appropriate” implied any type of limit on the Bush administration’s power. Clement responded,

I certainly wouldn’t read the authorization of force’s use of the term “necessary and appropriate” as an invitation for sort of judicial management of the executive’s war-making power.

Clement may have surprised some of the justices by declaring that the Bush administration would have had the power to detain Padilla even if Congress had never passed the war resolution, declaring that “the president had that authority on September 10th,” 2001.

Clement asserted that Padilla was the same as someone apprehended in Afghanistan, as far as the question of the government’s authority over him was concerned.

Clement insisted that “where the government is on a war footing, that there — you have to trust the executive to make the kind of quintessential military judgments.” Jennifer Martinez, representing Padilla, framed the issue:

Today the government asked this Court for a broad ruling that would allow the president unlimited power to imprison any American, anywhere, at any time, without trial, simply by labeling him an “enemy combatant.”

Martinez stressed that the issues in the case

go to the core of what our democracy is about, which is that the government cannot take citizens in this country off the street and lock them up in jail forever without a trial.

The Supreme Court’s June 28 decisions will not end the battles over who is an enemy combatant and how much arbitrary power the president should possess. This issue remains a live wire in part because top administration officials have repeatedly said that it is only a matter of time until another terrorist attack occurs. And a second major attack could result in a round of abuses that will make the post–9/11 actions look like a law-school picnic.

This article was originally published in the July 2004 edition of Freedom Daily.

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    James Bovard serves as policy adviser to The Future of Freedom Foundation. He has written for the New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader's Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of a new e-book memoir, Public Policy Hooligan. His other books include: Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book's Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.