Discussion in 'Computer Support' started by Frosty, Mar 3, 2007.

  1. Frosty

    Frosty Guest

    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

    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

    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

    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

    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

    “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

    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

    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
    Frosty, Mar 3, 2007
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