Tyranny and the Military Commissions Act
By Jacob G. Hornberger
-- -- - In Star Wars, Episode 3, in response to the Senate’s
grant of sweeping powers to Chancellor Palpatine, Padme
declares, “So this is how liberty dies: with thunderous
The same may be said about the Military Commissions Act (MCA)
that was recently enacted by Congress – that this is how freedom
ends, with or without the applause.
Despite the fact that the MCA has received just a modicum of
publicity from the mainstream press, it is undoubtedly the most
ominous and dangerous piece of legislation in our lifetime. By
suspending habeas corpus for foreigners, by adopting the
executive branch’s “enemy combatant” designation for both
Americans and foreigners, and by establishing military tribunals
for foreigners, the law not only entails a fundamental
reordering of our criminal justice system but also effectively
places the U.S. military in control of the American people.
Of all the rights and freedoms mentioned and enumerated in the
Constitution and the Bill of Rights, the writ of habeas corpus
is arguably the most important safeguard of individual freedom.
Without the “Great Writ,” none of the other rights and liberties
has much value.
To illustrate why this is so, let us assume that we live in a
society in which everyone has the right of freedom of speech,
including the right to criticize government programs. One day,
someone criticizes some government policy. That day, a federal
SWAT team conducts a no-knock raid and arrests the critic. The
next day, several people protest the arrest, arguing that the
prisoner has the right to criticize the government under
principles of free speech. That afternoon, federal agents arrest
and incarcerate some of the critics.
What could be done to get the prisoners released from
incarceration? The answer is: Nothing, unless the society
recognizes the writ of habeas corpus.
With habeas corpus, the prisoner files a petition with the
judicial branch of government, asking a judge to order his
custodian to appear before the judge to justify his
incarceration of the prisoner. If the custodian refuses to
comply, the judge issues an arrest warrant for him, which is
enforced at the federal level by deputy marshals. Or let’s
assume that the custodian shows up and says, “Your honor, the
reason we’re holding him in custody is that he criticized the
government.” In that case, the judge can order his immediate
release, holding that criticizing the government is not a crime.
Or if the judge incorrectly upholds the detention, the prisoner
can file an immediate appeal to the appellate courts, which
ordinarily give priority to habeas corpus proceedings.
Without habeas corpus, there is no way for a person who is being
wrongfully detained to challenge his detention, even if the
detention has gone on for years. In the absence of habeas
corpus, he must continue to languish in prison until the
authorities, out of the kindness of their hearts, decide to
release him. That’s in fact the way things work in communist
China and communist Cuba, where everyone is guaranteed freedom
of speech but has no way to secure his release from prison after
Habeas corpus, a judicial remedy that stretches back centuries
into English jurisprudence, is the linchpin of a free society.
Emphasizing its importance, the Chinese philosopher Lin Yutang
put it like this: “Personally, I think that one writ of habeas
corpus is worth more than all the Confucian philosophy ever
written.” That’s why the Framers expressly included the
protection of habeas corpus in the Constitution.
The Military Commissions Act cancels habeas corpus for
foreigners accused of terrorism. In one fell swoop, the
Congress, at the behest of President Bush, nullified centuries
of habeas corpus protection.
It might be tempting for some Americans to say, “No big deal,
because foreigners don’t count.” But that is a grave error
because history has shown that when citizens permit their
government to deprive one class of people of critically
important rights, it’s only a matter of time before the
government will do the same to other groups.
Ever since the inception of our nation, Americans have been able
justly to take pride in the fact that their rules of criminal
justice applied to everyone equally, across the board. Rich or
poor, powerful or weak, everyone who was detained by the federal
government on criminal charges has been entitled to the Great
Writ, along with such important procedural rights as due process
of law, right to counsel, trial by jury, and the right to
cross-examine adverse witnesses.
Will the federal courts overturn the MCA’s cancellation of
habeas corpus for foreigners, given that under the Constitution
Congress can suspend the writ only in times of invasion or
rebellion? Ordinarily, the answer would be yes, because under
our system of government neither the Congress nor the president
has the authority to amend the Constitution by enacting a law
that nullifies its provisions.
With the MCA, however, the Congress and the president pulled a
neat little constitutional trick. The Constitution permits the
Congress to determine what cases the federal courts will have
jurisdiction to hear, and Congress used the MCA law to deprive
the federal courts of jurisdiction to hear habeas corpus cases
brought by foreigners.
Time will tell whether the courts uphold such obvious trickery.
But if they do, Americans may well rue the day because if the
feds can cancel habeas corpus for foreigners and deprive the
courts of the power to do anything about it, they will be able
to do the same thing to Americans, not only with respect to
habeas corpus but also with respect to other rights and
guarantees in the Constitution and the Bill of Rights.
Does the fact that habeas corpus was canceled only for
foreigners mean that Americans are immunized from the arbitrary
arrests, torture, and indefinite detentions to which foreigners
will be subjected under the MCA? No, because slipped into the
law was the president’s and the Pentagon’s post–9/11 concept of
“enemy combatants” in the war on terrorism. That concept applies
not only to foreigners but also to Americans.
What does it mean to be designated an “enemy combatant” in the
war on terrorism? Just ask Jose Padilla, an American citizen who
was designated an enemy combatant. The Pentagon took Padilla
into custody some three years ago and for two years held him
incommunicado in a navy dungeon. Even worse, the Pentagon
employed the psychological techniques of torture against him
that the North Korean communists had employed against American
GIs during the Korean War. Padilla was locked up in solitary
confinement and denied any contact with the outside world, with
the apparent aim of driving him out of his mind as a result of
what psychiatrists call “sensory deprivation.” According to
Padilla’s lawyers and psychiatrist, the mental torture has been
successful, leaving Padilla with a disturbed state of mind that
prevents him from assisting with his own defense.
The Pentagon takes the position that ever since 9/11, the U.S.
military has wielded the power to treat any American just as it
has treated Jose Padilla.
Padilla, through his lawyer, filed a petition for writ of habeas
corpus, challenging his detention by the military. When the case
was about to reach the U.S. Supreme Court, the government
switched gears and announced suddenly that they were indicting
him for the criminal offense of terrorism and transferring him
to federal court jurisdiction.
The clever legal move deprived the Supreme Court of jurisdiction
to hear Padilla’s case (because the issue of military detention
had become moot) but, equally important, it left intact the
federal court of appeals decision upholding the government’s
“enemy combatant” concept.
Why is that important? For the simple reason that it has given
the U.S. military omnipotent control over the American
citizenry. With the president’s use of the “enemy combatant”
designation, which has now been formally enacted into law by the
MCA, the U.S. military now wields the power to send troops
across America and take Americans into custody and punish them
through torture and deny them due process of law, trial by jury,
and other procedural rights whose roots stretch back centuries
in American and British law.
Don’t Americans accused of terrorism, though, still have the
right of habeas corpus? Yes, but all that habeas corpus does is
require the government to show that it is justified in holding
the prisoner. If there is no legal justification – such as
holding someone because he criticized the government – the judge
will order his release. But if the Supreme Court upholds the
“enemy combatant” concept, as the federal court of appeals did,
then all that the government has to do at the habeas corpus
hearing is show some evidence that the accused had indeed been
designated an “enemy combatant” in the war on terrorism. Once
the government does that, the judge will dismiss the petition
for habeas corpus relief and leave the prisoner at the
indefinite mercy of his custodians.
What about the validity of the “enemy combatant” concept? It is
political and legal chicanery that effectively gives the U.S.
military standby control over the American people. All that the
military has to do is fill out a form with a person’s name on it
– or with lots of people’s names on it – and have the commander
in chief (whether Bush, Hillary Clinton, or anyone else who
happens to be president) sign it. At that point, military units
can sweep into neighborhoods and effect the arrests and
incarcerations of American citizens.
At the risk of belaboring the obvious, that’s not what America
is supposed to be all about. That’s what the Soviet Union was,
and China, North Korea, and Cuba are all about. Terrorism is a
crime, not an act of war. That’s why it’s defined as a crime in
the federal statute books. That’s why it’s prosecuted as a
crime, both here and in Europe. That’s in fact why federal
prosecutors have prosecuted such terrorists as Zacarias
Moussaoui (one of the 9/11 terrorists), Ramzi Yousef (one of the
1993 WTC terrorists), Timothy McVeigh (the Oklahoma City
terrorist), and many others accused of terrorism. After all,
let’s not forget that Jose Padilla himself is now being
prosecuted for terrorism in federal district court rather than
being held as an “enemy combatant.”
Targeting the unpopular
The beauty is how U.S. officials have accomplished this standby
hijacking of America’s criminal justice system. They have
targeted foreigners or unsavory Americans such as Padilla to get
their doctrines established, knowing that most Americans would
never come to their defense and knowing that most Americans
would never suspect that a government victory in those cases
might well end up applying to ordinary Americans as well.
So, under the current state of the law, thanks to Congress, the
president, and the MCA, Americans can be incarcerated and
tortured by the military for the rest of their lives. No due
process and no jury trials. In fact, arguably foreigners accused
of terrorism have it “better” under the MCA because they do get
a trial – trial by military tribunal – while American “enemy
combatants” get no trial at all. The reason I put the word
“better” in quotation marks is that military tribunals, unlike
jury trials in federal court, will be nothing but kangaroo
proceedings where the outcome (guilt and death) will not be in
doubt and where the proceeding is actually just a show trial for
the benefit of the American people.
There are, of course, those who say, “We don’t need to be
concerned. Our government officials love us and will employ
these powers only against foreigners.” The big problem with that
way of thinking is that once the roundups begin amidst a big
crisis environment, where everyone is stricken with fear, it
will be too late to complain. Just ask German Jews or, for that
matter, Americans of Japanese descent.
The time to protest is now. The time to fight for the
Constitution and Bill of Rights is now. The time to restore
habeas corpus is now. The time to repeal the MCA is now. The
time to rein in the federal government is now.
Jacob Hornberger is founder and president
Future of Freedom Foundation.
Copyright © 2007 Future of Freedom Foundation
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