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The Pentagon’s Power to Arrest, Torture, and Execute Americans



by Jacob G. Hornberger


The president and the Pentagon now wield the omnipotent power to
arrest, torture, and execute any American they label an “enemy
combatant.” It is impossible to overstate the significance of this
power. It has totally upended the relationship of the military and
civilian in the United States. The assumption of this particular power
easily constitutes one of the most monumental revolutions of liberty
and power in history. It is a revolution that every American must
confront now, not later. If people wait until later to confront the
expanded use of this power, it will be too late, because by that time
it will be too dangerous to do so.

As long as this particular power is permitted to stand, there is no
possibility for Americans to be considered a free people. A necessary
prerequisite for restoring freedom to our land is the removal of this
power from the arsenal of government officials.

Everyone needs to understand the nature of this power and its enormous
significance. Historically, the U.S. military has lacked the power to
arrest, incarcerate, or inflict harm on American civilians. If
Americans committed a federal crime, they were subject to being
indicted by a federal grand jury and then prosecuted in U.S. District
Court. The Bill of Rights guaranteed that the accused would be
accorded certain rights of due process of law, such as the right to
defend himself with the assistance of an attorney, to confront the
witnesses whose testimony the prosecutors were relying on, to summon
witnesses in his behalf, to remain silent, and to have a trial by
jury. Everyone was presumed to be innocent and the government had to
prove the defendant’s guilt beyond a reasonable doubt.

Those constitutional protections and guarantees were upended on 9/11,
without even the semblance of a constitutional amendment. On 9/11 the
president and the Pentagon assumed to themselves the power to take any
American into custody and inflict violence on him, without according
him any of the protections provided by the Bill of Rights. Today, the
Pentagon has the authority, on orders of its commander in chief, to
send American soldiers into any neighborhood in the country and take
into custody any American citizen and inflict harm on him simply by
labeling him an “enemy combatant” in the “war on terror.”

Let me emphasize something important here, especially for
libertarians, who have long committed their lives to the achievement
of a free society: There is no way – none – to reconcile the
assumption of this power with a free society. In fact, it is the most
powerful government power of all – the ultimate power that can ever be
wielded by a tyrannical government. No infringement on economic
liberty – hyperinflation, confiscatory taxation, oppressive
regulation, or the like – can compare in significance with the
omnipotent power of a government official to arbitrarily pick up
anyone he wants for any reason he wants and incarcerate him, torture
him, and execute him.

Here’s how this revolution of liberty and power occurred.

After 9/11, U.S. officials declared what they called a “war on
terror.” They said that this was akin to a real war, such as World War
I and World War II, despite the fact that terrorism was still listed
on the federal statute books as a federal crime. The “war on terror”
was a “global” war, they said, one in which the president, the CIA,
and the Pentagon would have to fight terrorists all over the world.
Since it was a real war against illegal combatants, the CIA and the
Pentagon did not need to heed legal and constitutional procedures.
They were “taking off the gloves” to keep Americans safe from the
terrorists.

The CIA and the Pentagon assumed the authority to kidnap, capture,
arrest, torture, “rendition,” and execute suspected terrorists all
over the world. There were a few indictments, prosecutions, and
convictions for terrorism in federal court, such as that of 9/11
conspirator Zacarias Moussaoui. But for the vast majority of
foreigners U.S. officials picked up for terrorism, there was torture,
indefinite incarceration, and in some cases extra-judicial executions.
Sometimes the torture occurred at the hands of U.S. personnel. Other
times, the torture was outsourced (“renditioned”) to police or
intelligence forces of brutal, but friendly, foreign regimes.

Through it all, Americans innocently and naïvely assumed that the
power now being exercised by the CIA and the Pentagon applied only to
foreigners, not to Americans. Engaged in wishful thinking, they were
blinding themselves to reality. As U.S. officials repeatedly
emphasized after 9/11, the war on terror was global in nature, which
meant that the military power to wage the war on terror included going
after the terrorists right here inside the United States.

The war on terror’s iron fist unleashed itself on an American citizen
named José Padilla, whom U.S. officials arrested on American soil and
accused of being a terrorist. Federal officials did not indict
Padilla, prosecute him, or convict him, at least not at first.
Instead, U.S. military officials took control over him and denied him
any right to speak to an attorney, family, or friends. The U.S.
attorney general announced to the American people that Padilla was an
illegal “enemy combatant” in the “war on terror.”

For three years, Padilla was held in military custody. In a recent
hearing in U.S. District Court, two psychologists testified that, as a
result of having been in isolation for an extended period of time and
having been subjected to sensory deprivation, Padilla is now too
mentally damaged to assist with his own case. Even though a government
psychologist disputed Padilla’s claim, the case is bringing to public
eye what U.S. officials would undoubtedly prefer to keep secret from
the American people – a method of “touchless” torture that the CIA and
the Pentagon have long been employing involving isolation and sensory
deprivation. As Alfred McCoy described in his book A Question of
Torture, this particular type of torture technique is specifically
intended to cause mental damage to its victims. The CIA learned the
technique from the North Korean communists, who subjected American
POWs to it during the Korean War.

What is so significant about the José Padilla case?

Its significance lies not only in what U.S. officials did to Padilla
but also in the fact that what they did to him, they now wield the
power to do to every other American. That is the post-9/11 revolution
of liberty and power that Americans must now confront if they wish to
live in a free society.

The president and the Pentagon faced one big problem, however. While
they correctly assumed that Congress would do nothing to stop the
assumption of this omnipotent power over the American people, there
was still the possibility that the federal courts would declare it to
be in violation of the U.S. Constitution.

So it’s not surprising that they chose someone like José Padilla as
their test case, rather than some middle-class high-school principal
who was a member of Rotary. Federal officials knew that Americans
would feel no sympathy for Padilla, especially after the U.S. attorney
general went on television and announced that Padilla was planning to
explode a nuclear bomb in the United States.

After keeping him three years in military custody, the Pentagon
released Padilla from the South Carolina dungeon in which he had been
incarcerated and transferred him to the control of the Justice
Department, which proceeded to secure a grand-jury indictment against
him for terrorist-related activities overseas. Significantly, the
grand jury indictment didn’t charge Padilla with the nuclear-bomb
scheme that the U.S. attorney general had used to scare the American
people.

Why did U.S. officials agree to prosecute Padilla in federal district
court instead of continuing to treat him as an “enemy combatant” in
the “war on terror”? After all, haven’t they repeatedly told Americans
that terrorism is an act of war, not a criminal act? Isn’t that why
Padilla was held in isolation in a military dungeon for three years?
Why would they switch gears by moving him from “enemy-combatant”
status to “criminal-defendant” status in federal district court?

The answer lies in the legal strategy employed by U.S. officials, a
strategy that ultimately fortified the federal government’s
revolutionary assumption of military power over the American people.

While Padilla was still in military custody as an “enemy combatant,”
his attorneys filed a petition for writ of habeas corpus. Habeas
corpus is a legal remedy that stretches back centuries into American
and English jurisprudence. Its purpose is to negate the power of
government officials to arbitrarily incarcerate and punish people
without just cause. Placing ultimate power in the hands of an
independent judge, the writ commands the custodian to produce the
prisoner and show cause for holding him. If the judge finds that the
prisoner is being held without cause, he has the power to order his
release. Under the law, the custodian – whether he’s a king, a
president, or a military official – must comply with the judge’s
order.

The district court ruled in favor of Padilla, essentially holding that
in the United States of America the military doesn’t rule over the
citizenry. If Padilla or any other American was accused of terrorism,
the executive branch had a remedy under the Constitution – indict him
and prosecute him. Essentially, the district court held: Charge
Padilla with a crime or release him.

Meanwhile, attorneys for the foreigners held at Guantanamo, who also
had been held for years without being charged, were litigating their
own petitions for writ of habeas corpus in the federal courts, arguing
that they too had the right to be either charged or released.

The government appealed the Padilla ruling to the Fourth Circuit Court
of Appeals, one of the most conservative circuits in the country.
Reversing the judgment of the district court, the Fourth Circuit
issued one of the most ominous judicial decisions in the history of
our country. Upholding the government’s concept of an “enemy
combatant” in a “war on terror,” the court upended the relationship
between military and civilian – and between liberty and power – that
historically had existed in this country.

While the Court of Appeals judgment seemed to apply only to José
Padilla, in actuality it applies to all Americans. On the day that
judgment became final, the monumental legal revolution was complete,
except for the possibility that the Supreme Court could still overrule
the Fourth Circuit’s judgment.

What did the U.S. Supreme Court do? That was another part of the legal
strategy that federal officials employed. Padilla’s attorneys, of
course, fully intended to appeal the judgment of the Fourth Circuit to
the Supreme Court, which very well might have reversed the judgment of
the Court of Appeals. After all, by this time the Court had already
ruled in favor of several of the Guantanamo detainees and against the
government.

Before the Court could hear the case, however, federal officials
transferred Padilla to federal-court jurisdiction to be indicted as a
criminal defendant accused of having committed criminal acts of
terrorism. Why had the government seemingly changed its position after
years of claiming that Padilla was an “enemy combatant” subject to
military control?

The answer was easy to see: The government had the Fourth Circuit’s
judgment under its belt and it did not want to jeopardize a reversal
of that judgment. Federal prosecutors knew that if they could somehow
prevent the Supreme Court from hearing the case – and possibly
reversing the holding – the Fourth Circuit’s judgment in the
government’s favor would be left standing.

There was one way for them to prevent the Supreme Court from hearing
the case. There is a long-established legal principle that if a case
or controversy becomes moot while the case is pending, a court loses
jurisdiction to rule.

Federal officials figured that if they transferred Padilla out of
military custody, his habeas corpus proceeding would become moot
because he would no longer be in military custody. That’s why they
transferred him to federal-court jurisdiction – to render his case
moot and thereby deny the Supreme Court the power to reverse the
Fourth Circuit’s judgment.

The strategy succeeded. Ruling that the case was now moot, the Supreme
Court declined to hear Padilla’s appeal, which left the Fourth
Circuit’s judgment approving the government’s “enemy combatant” theory
intact.

“Well, how come they’re not arresting, torturing, and executing lots
of Americans then?” Because every government, even totalitarian ones,
must pay attention to public opinion, and federal officials know that,
under current circumstances, Americans might not countenance the
arbitrary arrests, torture, and executions of large numbers of
Americans.

But what every federal official, especially those in the military,
knows is that they now wield one of the most powerful standby military
powers in history: the omnipotent power to arbitrarily arrest,
torture, and execute American citizens simply by labeling them “enemy
combatants.” All that’s needed is the right “emergency” or “crisis”
and this standby power can be unleashed on the American people – in
the course of protecting them from the terrorists, of course.

It’s true that Americans still retain habeas corpus, given that the
recently enacted Military Commissions Act canceled that centuries-old
remedy for foreigners only. (The D.C. federal Court of Appeals
recently upheld the constitutionality of the Act.) Americans would be
unwise to rely on habeas corpus, however, to provide them any safety
or security with respect to being labeled an “enemy combatant” and
treated accordingly. As soon as an American “enemy combatant” files a
petition for writ of habeas corpus, the government will quickly file
its response showing that the prisoner is being held as an “enemy
combatant” in time of “war,” citing the Fourth Circuit’s decision in
the Padilla case upholding the “enemy combatant” designation as part
of the ongoing “war on terrorism.” Given the long-established
tradition of federal courts not to second-guess the president’s
war-making decisions, it is a virtual certainty that no federal court
will second-guess the president’s and the Pentagon’s “enemy combatant”
determinations. The courts will very likely swiftly dismiss habeas
corpus petitions brought by Americans who have been labeled “enemy
combatants.”

While there is still a possibility that the Supreme Court will
ultimately reject the reasoning and holding of the Fourth Circuit,
Americans would be unwise to depend on any such hope. For one thing,
it would take at least a year or two for any case to reach the Supreme
Court and be decided, and lots of Americans could be arrested,
incarcerated, tortured, and executed within that time, especially if
the right “emergency” or “crisis” were to send everyone into emotional
hyperdrive. Equally important, given the increasingly conservative
ideology of Supreme Court justices, there is a growing likelihood that
a majority of the Court will side with the government anyway.

As an integral part of the federal government’s “war on terror,” which
itself is an inexorable part of the government’s pro-empire,
pro-intervention foreign policy, the U.S. military’s power to arrest,
torture, and execute Americans is now reality. It is impossible to
reconcile such power with the principles of a free society. As long as
it exists, even if only as a standby power in the event of a “crisis”
or “emergency, ” Americans cannot be considered a free people. It is
the ultimate power that any government can wield over its citizens
and, in fact, is a power wielded by such tyrannical regimes as those
in Burma, Pakistan, China, North Korea, and Cuba. A necessary
prerequisite for the restoration of a free society is its removal from
the arsenal of federal powers.
March 1, 2007

Jacob Hornberger [] is founder and president
of The Future of Freedom Foundation. He will be among the 22 speakers
at FFF’s upcoming conference on June 1–4 in Reston, Virginia:
“Restoring the Constitution: Foreign Policy and Civil Liberties.”

Copyright © 2007 Future of Freedom Foundation