Losing the Bill of Rights
What Obama’s KSM decision means for all of us
By Jacob Hornberger
Last month, President Obama announced that Khalid Sheik Mohammed would be
transferred to New York, where he would stand trial in U.S. district
court for his purported role as principal architect of the 9/11 attacks.
At the same time, Obama announced that other terrorist suspects would
continue to be tried for terrorism in the Pentagon’s military-commissions
system, which was established after 9/11.
Which judicial system is chosenthe federal courts or military
commissions systemhas important consequences for accused terrorists.
What all too many Americans fail to realize, however, is the enormity of
the impact that this dual system of justice has had on the country’s
constitutional order. The precedents created here will extend far beyond
the war on terror.
Suppose drug-war violence in Mexico spills over into the United States.
Gangs begin kidnapping, torturing, and murdering federal law-enforcement
agents and judges. Federal buildings are bombed. Gang-war gun battles
break out on the streets, resulting in the deaths of bystanders.
The violence induces the U.S. government to re-declare a war on drugs.
The president orders the military to undertake at home the same type of
interdiction operations it has been taking in foreign countries for
decades. The Pentagon immediately sends several thousand battle-tested
troops to the southern border to wage the struggle.
When critics complain that the Posse Comitatus Act prohibits the military
from engaging in domestic law enforcement, the president responds that
this is war, not criminal justice, and that in this war, as in the war on
terrorism, the entire world, including the United States, is the
battlefield. As commander in chief, the president says, he wields the
power to send the military onto the battlefield to capture or kill the
enemy wherever he may be found.
And as part of the war, the president and the Pentagon announce that
there will now be two alternative judicial systems for handling drug
offenders.
One system will be the traditional one established by the Constitution,
the one involving federal grand-jury indictments, trials before federal
judges, the presumption of innocence, protection from self-incrimination,
suppression of illegally obtained evidence, freedom from cruel and
unusual punishments, effective assistance of counsel, a speedy and public
trial, the right to confront witnesses, and trial by jury.
The other judicial system will be established and operated by the
Pentagon, at its prison camp in Cuba. Its procedures will be entirely
different from those in the U.S. federal courts. Drug-war combatants
shunted into this system will be presumed guilty, subject to torture and
abuse, and denied the procedural rights and guarantees provided in the
Bill of Rights.
Deciding which system of justice will be applied to each suspected drug
offender will rest entirely in the hands of federal officials, especially
the military. They will wield full discretionary authority to make the
call. As a political and practical matter, the policy will be to send
most, but not all, American suspects into the federal court system.
Foreign citizens, on the other hand, will largely be subjected to the
Pentagon’s system.
While many long-time drug-war proponents would undoubtedly hail such a
change as a positive development in their decades-long hope of finally
winning the war on drugs, most Americans would surely feel a sense of
unease about such an announcement. Many of them would recognize that such
a change would fundamentally alter America’s criminal-justice
system.
Let’s keep in mind that the Bill of Rights doesn’t really give anyone any
rights. Instead, it does two primary things: it prohibits the federal
government from infringing upon fundamental and inherent rights of the
people, and it forces federal officials to accord people charged with
crimes important procedural rights and guarantees that have been carved
out in the struggle between liberty and tyranny, a struggle that
stretches back centuries into British history.
Why did the American people demand passage of the Bill of Rights? Because
they considered the federal government, which the Constitution had
brought into existence, to be the primary threat to their freedom and
well-being. Americans were convinced that the federal government would
end up doing the bad things that governments historically had done to
people, such as confiscating weapons to ensure submissiveness to the
government and rounding up people for criticizing the government and
torturing them.
While no one really thought that the Bill of Rights would dissuade
federal officials from desiring to do such things, the idea was to make
clear that those sorts of practices were not to be countenanced in this
country. If the federal government wished to incarcerate or otherwise
punish people, whether foreign or American, it would be required to
follow long-established procedures relating to due process of law, a term
that stretched back to Magna Carta in 1215.
How does all this apply to our drug-war hypothetical? By assuming the
power to treat drug-war violators as enemy combatants, federal officials
would be implementing a fool-proof way to circumvent the rights and
guarantees provided in the Bill of Rights. This dual system of justice by
which the government would wield the power to subject suspects to two
alternative systems of justiceone in the federal courts and one in the
military tribunalswould constitute the perfect circumvention of the Bill
of Rights.
That’s precisely the revolutionary change that was effected by federal
officials, including those in the military, after 9/11 with respect to
terrorism cases.
Prior to 9/11, the federal government treated terrorism as a federal
criminal offense. That’s not surprising, given that terrorism is listed
as a federal crime in the U.S. Code. That’s why such terrorists as Ramzi
Yousef, who bombed the World Trade Center in 1993, and Timothy McVeigh,
who carried out the Oklahoma City bombing in 1995, were indicted, tried,
convicted, and sentenced in federal district court.
Thus, those who claim that terrorism is an act of war rather than a
criminal offense are simply wrong. It is indisputable that terrorism is,
in fact, a federal criminal offense. If you have any doubts, just look at
the U.S. Code. Or go look at the federal-court indictments and
prosecutions of Yousef and McVeigh, or for that matter, Zacarias
Moussaoui, Jose Padilla, Ali al-Marri, or a host of other people, who
have been indicted and tried for terrorism in U.S. district courts, both
before and after 9/11.
Over time, in the fear-ridden environment following the 9/11 attacks, the
Bush administration, working closely with the Pentagon, effected a
revolutionary change to America’s constitutional order. They declared
that federal officials, as a result of the attacks on the World Trade
Center and Pentagon itself, would now wield the authority to treat people
suspected of having committed terrorist acts as either criminal
defendants or as enemy combatants.
It would be difficult to find a better example of a violation of the
principles of the rule of law and equal treatment under law than that.
The rule of law is designed to enable people to answer to a well-defined
law for their conduct, not to the discretionary judgment of government
officials. Yet the determination of whether terrorist suspects would be
treated as criminal defendants or as enemy combatants is based entirely
on the discretionary, ad hoc decisions of federal officials.
No better example of the arbitrary nature of this process could be found
than the Padilla and al-Marri cases and, now, the case of Khalid Sheik
Mohammed. Padilla began his journey as an enemy combatant until, after
many years of military incarceration and abuse, the government suddenly
changed its mind and decided to treat him as a criminal defendant.
Al-Marri began as a criminal defendant, was converted to an enemy
combatant, and then years later suddenly re-converted to
criminal-defendant status. And before Mohammed was suddenly converted to
criminal-defendant status, he had been held as an enemy combatant since
2003.
Each system entails completely different forms of treatment. In the
federal court system, a person receives the protections of the Bill of
Rights. Under the military’s system, he is subjected to the horrors that
the Bill of Rights was designed to prohibit or restrict. For example,
during Mohammed’s time as an enemy combatant, he was waterboarded 183
times. With his conversion to criminal-defendant status, he won’t be
waterboarded at all.
We should also note another monumental change to our constitutional order
wrought by 9/11the power of the military to ignore verdicts of acquittal
in federal-court terrorism cases. From the inception of our nation all
the way up to 9/11, when a person charged with terrorism was acquitted by
a jury of his peers in federal district court, the presiding judge would
immediately set him free, which is what the Constitution
requires.
Alas, not anymore. Now, federal officials wield the post-9/11 power to
ignore the jury’s verdict of acquittal in terrorism cases and keep the
person in custody indefinitely as a military belligerent. Thus, in
federal criminal cases involving terrorism, federal judges are now
expected to check with the military before they free an accused terrorist
who has won a “not guilty” verdict from a federal-court jury.
We should bear in mind that this immense powerthe power to completely
circumvent the Bill of Rights in criminal cases involving terrorismwas
achieved without even the semblance of a constitutional amendment. The
power was simply declared and assumed by U.S. officials after
9/11.
Given that federal officials now wield the power to treat one federal
criminal offenseterrorismas either a crime or an act of war, there is
no inherent reason why such power cannot be expanded to encompass other
federal crimes, such as drug offenses. In fact, given the
interrelationship between drug dealing and terrorism, one can easily
imagine that federal officials will eventually expand their war on
terrorism powers to the war on drugs. All that’s needed is the right
crisis. It’s a matter of time before the president and Defense Department
find ever more uses for this alternate system of justice that
conveniently sidesteps the Bill of Rights.
Jacob Hornberger is founder and president of The Future of Freedom
Foundation.
http://www.amconmag.com/blog/losing-the-bill-of-rights/
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