13 May 2010 By
Jacob G. Hornberger On May 5, the Washington Post published an
editorial questioning whether the Obama administration
had considered treating the suspected Times Square
attempted bomber as an enemy combatant rather than as
a federal criminal defendant. I wrote an article
entitled “Hijacking the Constitution and the Bill of
Rights,” which criticized the Post’s editorial. First of all, the Post wants to make it
clear that it isn’t countenancing torture. But isn’t the Post being a bit disingenuous
here? After all, the Post’s primary motive in
advocating a system in which federal officials can
treat a terrorist suspect as an enemy combatant seems
to be to secure information from the suspect in a
rapid manner. What are the chances that military officials aren’t
going to use all the interrogation tools that they’ve
employed for the last 9 years in the war on terrorism,
including waterboarding people dozens of times? Isn’t
waterboarding excluded from the government’s
definition of torture? Consider the obvious benefits of turning criminal
defendants, including Americans, over to the military
for torture — correction, “harsh interrogation.” The
soldiers can’t be sued. They’re immune. And they’d get
off the hook anyway by simply saying they were
following orders. The higher-ups will also get off the
hook because they’ll have legal opinions from the
Justice Department protecting them. Moreover, they can always redefine torture to
include waterboarding, sensory deprivation, isolation,
the rack, or whatever. If things get nasty, the
military can conduct 10 or 20 investigations into the
matter and announce that reforms are taking place. Of
course, that’s after they destroy or hide the
videotapes of the interrogation sessions. For full and complete protection, the military
could turn the suspects over to the CIA. Everyone
knows that no one is going to demand to know the
identities of CIA interrogator, even in cases
involving death. And even if someone did make such a
demand, everyone knows that the CIA wouldn’t comply
with it anyway. Most important, the operative word is “suspect.”
Unless an accusation by government is now going to be
considered as evidence of guilt, no one really knows
whether a person is truly a terrorist until he’s been
convicted in a court of law by competent and reliable
evidence establishing his guilt beyond a reasonable
doubt. Under our system of government, not even a
federal grand jury indictment is considered evidence
of guilt. In its follow-up editorial, the Post fails
to deal directly with another fundamental issue: How
does a system in which government officials have the
discretion to treat a suspect as either a criminal
defendant or as an enemy combatant comport with any
sense of justice? It is precisely that type of
discretion that the rule of law is intended to avoid.
It’s also what the principle of equal treatment under
law is all about. Moreover, what the Post is implicitly
endorsing is the power of the federal government to
convert a crime into an act of war, thereby enabling
the government to completely circumvent the Bill of
Rights with respect to that particular crime. Consider, for example, the war on drugs. Under the
Post’s reasoning, the government could suddenly
declare that drug suspects will now be treated as
either federal court defendants or as enemy
combatants. If a person suspected of illegally
possessing marijuana is arrested, he could be
delivered to the military as an enemy combatant, where
he could be forced under harsh interrogation
techniques to disclose where he got the drugs. He
could also be prosecuted under the government’s
kangaroo military tribunal system. How convenient — no
more federal court trials with pesky criminal defense
attorneys, meddling federal judges enforcing the Bill
of Rights, and recalcitrant juries acquitting people.
Just quick “justice” for all those suspected drug-law
violators. In support of its position, the Post cites
the case of Nazis saboteurs who were taken captive on
American soil in World War II. But that involved a
real war, that is, a war between nation-states. The
war on terrorism, on the others hand, is nothing more
than a figure of speech involving a criminal offense —
like the war on drugs, the war on organized crime, the
war on the Mafia, and the war on poverty. The Post also cites the U.S. Supreme Court
case of Hamdi v. Rumsfeld. The Post gets
it wrong again. Hamdi was held as an enemy combatant
because he was taken into custody in a real war, one
between two nation-states, Afghanistan (the Taliban)
and the United States. Finally, the Post editorial writers should
read the New York Times. On this particular
issue, the Times gets it right in its editorial
entitled “Fear Itself.” Jacob Hornberger is founder and president of The
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