The Pentagon’s Power to Arrest, Torture, and Execute Americans
Jacob G. Hornberger
by Jacob G. Hornberger
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.
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
defendants guilt beyond a reasonable doubt.
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
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.
how this revolution of liberty and power occurred.
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.
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
terrors 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.
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 Padillas 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?
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.
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.
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.
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 didnt
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, havent they repeatedly
told Americans that terrorism is an act of war, not a criminal act?
Isnt 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?
lies in the legal strategy employed by U.S. officials, a strategy
that ultimately fortified the federal governments revolutionary
assumption of military power over the American people.
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 hes a king, a
president, or a military official must comply with the judges
court ruled in favor of Padilla, essentially holding that in the
United States of America the military doesnt 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.
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.
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 governments 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.
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 Circuits judgment.
What did the
U.S. Supreme Court do? That was another part of the legal strategy
that federal officials employed. Padillas 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
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?
was easy to see: The government had the Fourth Circuits 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 Circuits judgment in the governments
favor would be left standing.
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
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. Thats 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
succeeded. Ruling that the case was now moot, the Supreme Court
declined to hear Padillas appeal, which left the Fourth Circuits
judgment approving the governments enemy combatant
how come theyre 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
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 thats 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.
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 Circuits 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 presidents war-making
decisions, it is a virtual certainty that no federal court will
second-guess the presidents and the Pentagons enemy
combatant determinations. The courts will very likely swiftly
dismiss habeas corpus petitions brought by Americans who have been
labeled enemy combatants.
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
As an integral
part of the federal governments war on terror,
which itself is an inexorable part of the governments pro-empire,
pro-intervention foreign policy, the U.S. militarys 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.
Hornberger [send him mail]
is founder and president of The Future
of Freedom Foundation. He will be among the 22 speakers at FFF’s
upcoming conference on June 14 in Reston, Virginia: “Restoring
the Constitution: Foreign Policy and Civil Liberties.”
© 2007 Future of Freedom Foundation