by Jacob G. Hornberger
Good for the ACLU! It is taking Jose Padilla’s civil suit to the U.S. Supreme Court for what will hopefully be an adjudication by the highest court in the land as to the power of the U.S. military and the CIA in modern-day American life.
Of course, the chances that Padilla will prevail are extremely slim, but it is great that he and the ACLU might succeed in finally flushing the justices out into the open and making them render their decision and provide their reasoning on the so-called war on terrorism so that everyone can see the inanity of the reasoning that goes into this “war” and the omnipotent power of the military and the CIA over the American people.
After all, don’t forget that the Supreme Court ran away from confronting the issues raised by Padilla the last time he sought relief from the Court. That was the period of time when the U.S. military and Justice Department were engaging in their infamous flip-flop scheme regarding “enemy combatants” in the much-ballyhooed “war on terrorism.”
At first, Padilla was taken into custody and run through the federal court system. But then the U.S. military took control over him, removed him from federal court jurisdiction, and transported him to a military dungeon, where he was held for almost three years and brutally tortured.
What was the military’s rationale for doing this? The military said that it now had the power to do this to Padilla and every other American as part of the post-9/11 “war on terrorism” that it was now intending to wage in perpetuity. Padilla was a dangerous “enemy combatant” — a “terrorist” — a threat to “national security,” the Pentagon and the Justice Department repeatedly told the federal courts during Padilla’s habeas corpus hearings.
We’re at war, after all, the Pentagon and the Justice Department told the federal courts. It’s a real war, which enables the military to now have supreme power over the American people. Thus, the military, they said, now wields the power to take into custody anyone who is labeled an “enemy combatant” in the war on terrorism and to treat him accordingly — incarcerate him forever, torture him, and even execute him, perhaps after some kangaroo military tribunal.
Equally important, no one would be permitted to sue the military or the CIA for doing any of this. Any rights of the citizens would be subordinate to the immunity privilege of the military and the CIA.
Did I mention that Padilla is an American citizen? Yes, an American. So, the military wasn’t claiming that it could use these powers against foreigners only. They could also wield them against the American people. After all, U.S. officials said, “terrorists” come in all shapes and sizes and nationalities, including American, and in this war, the entire world is the battlefield, including the United States.
Needless to say, the federal courts have bought into all this nonsense.
When Padilla was appealing the decision against him by the federal Court of Appeals to the U.S. Supreme Court, guess what the Justice Department and the Pentagon did. After having represented to the federal courts that Padilla was a dangerous enemy combatant in the “war on terrorism,” which they said justified what they were doing to him, they all of a sudden removed him from the control of the military and transferred him back to federal court jurisdiction, where they got a grand-jury indictment against him for terrorist-related crimes.
Why did they do that? They already had a Court of Appeals judgment approving their omnipotent military power over the American people, and they didn’t want to take the chance that the Supreme Court might overrule it. After all, such a favorable ruling could come in mighty handy in the midst of some future “crisis.”
Thus, they told the Supreme Court that it now lacked jurisdiction to hear the case on the ground that Padilla’s habeas corpus case was now “moot,” given that he was no longer in military custody. Their cute flip-flop strategy worked. The Supreme Court ran away from deciding the case, holding that it was in fact “moot.”
Nonsense. The Court could easily have held that the Pentagon and the Justice Department had committed fraud on the federal court system with its game of federal-court defendant/enemy-combatant terrorist flip-flopping. It could have refused to countenance such fraud and gone ahead and accepted the appeal.
After all, once the Supreme Court’s dismissal of the appeal had become final, what would have prevented the government from doing the same thing once again — transferring Padilla back to military custody? Nothing. And what would have prevented them from doing the same trick, over and over again, to prevent Padilla’s case from ever reaching the Supreme Court? Nothing.
Padilla got convicted in federal court of a terrorist-related offense. But his horrific treatment at the hands of the military was held to be irrelevant in that trial.
So, what did he do? Assisted by the ACLU, he sued the government in a civil suit to establish that the U.S. military does not have the authority over the American people to do this sort of thing. Needless to say, the lower federal courts have ruled against him.
Why do I believe his chances of succeeding in the Supreme Court are slim? Because ever since 9/11 and even before, the federal judiciary and many lawyers chose to defer to the military and the CIA, abdicating their responsibility to maintain a free society under the Constitution.
In fact, the uncomfortable reality — one that few people want to recognize — is that the military and the CIA have effectively become a fourth branch of government. They are interdependent with the other three branches but they are also now co-equal with the other three branches.
The military and the CIA can assassinate people, including Americans. They can take them into custody and torture them. They can incarcerate them for the rest of their lives.
As an independent branch, none of them can be held liable for what they do to people. If people sue them, the courts will dismiss the case the second the military and the CIA mention the magic terms “national security” and “state secrets.” Those two terms, neither of which is in the Constitution, immediately trump everything — the Constitution, the Bill of Rights, due process of law, right to speedy trial, and every other constitutional protection. Once they are mentioned, the federal courts are rendered impotent.
Congress won’t dare to investigate any of this for fear that the military will cancel military projects in selected congressional districts, thereby jeopardizing the reelection of congressmen in those districts. And no president since John Kennedy has dared to confront the military and the CIA or question their dominant role in American life and in the world, not to mention in the American economy.
If a person files a habeas corpus petition, the judicial branch still has some control but, as a practical matter, it’s minimal. All the military has to do is introduce a small amount of evidence, even evidence based on torture, and the courts will defer to their judgment. After all, the courts will say, we’re at war and we can’t interfere with military operations in time of war.
Most ridiculous of all, of course, is that the courts have bought into all this “we’re at war” nonsense. Simply having the military and CIA enforce criminal laws is enough to cause the military-CIA branch of government to reign triumphant over the other three branches.
Of course, we’ve seen this all this nonsense before, or to be more precise, the Chilean people have seen it. When Augusto Pinochet implemented his military coup in Chile on 9/11 in 1973, a coup that the U.S. military and the CIA fully favored, his military and his CIA (known as DINA) began taking Chilean people into custody as enemy combatants, just as the U.S. military did with Padilla.
The rational for this power was the same as it is here in the United States — that a “state of war” existed against “communists” and “terrorists.” The Chilean military and DINA began taking Chilean citizens into custody, torturing them, killing them, and disappearing them.
When Chilean families sought relief from the courts, they were met with the same reasoning that Padilla has met in the federal courts here — that the courts lacked the power to interfere with military operations during time of “war.” When people brought habeas corpus petitions on behalf of disappeared family members, the military would mock the courts with false denials of what they had done to the disappeared ones, and the courts would meekly defer to whatever the military told them.
In other words, after Chile’s 9/11 most of the lawyers and the federal courts did everything they could to make themselves subservient to the military and to DINA. After all, they undoubtedly reasoned, if they took a firm stance in favor of protecting the rights and freedoms of the Chilean citizenry, they — the lawyers and the judges — could easily be the next victims.
Ultimately the Chilean people stood up against Pinochet’s military regime and peacefully brought it down. The lawyers and the judges who abandoned their responsibilities during the dark era would have to live the rest of their lives in shame.
Jacob Hornberger is founder and president of the Future of Freedom Foundation.
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