The Pentagon’s Power to Arrest, Torture, and Execute Americans


Richard Moore

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The Pentagon's Power to Arrest, Torture, and Execute Americans

By Jacob G. Hornberger

03/02/07 "ICH" --- -- The president and the Pentagon now wield the omnipotent 
power to arrest, torture, and execute any American they label an ³enemy 
combatant.² 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.

Everyone needs 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 defendant¹s guilt 
beyond a reasonable doubt.

Those constitutional 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 ³enemy combatant² in the ³war on terror.²

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.

Here¹s how this revolution of liberty and power occurred.

After 9/11, U.S. officials declared what they called a ³war on terror.² 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 ³war on terror² was a ³global² 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 
³taking off the gloves² to keep Americans safe from the terrorists.

The CIA and the Pentagon assumed the authority to kidnap, capture, arrest, 
torture, ³rendition,² 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 (³renditioned²) to police or intelligence forces of 
brutal, but friendly, foreign regimes.

Through it 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 terror¹s 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 ³enemy combatant² in the ³war on terror.²

For three 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 Padilla¹s 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 ³touchless² 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?

Its significance 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.

The president 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.

So it¹s 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 

After keeping 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 didn¹t 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 ³enemy combatant² in the ³war on 
terror²? After all, haven¹t they repeatedly told Americans that terrorism is an 
act of war, not a criminal act? Isn¹t that why Padilla was held in isolation in 
a military dungeon for three years? Why would they switch gears by moving him 
from ³enemy-combatant² status to ³criminal-defendant² status in federal district

The answer lies in the legal strategy employed by U.S. officials, a strategy 
that ultimately fortified the federal government¹s revolutionary assumption of 
military power over the American people.

While Padilla was still in military custody as an ³enemy combatant,² 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 he¹s a king, a president, or a military official ­ must 
comply with the judge¹s order.

The district court ruled in favor of Padilla, essentially holding that in the 
United States of America the military doesn¹t 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.

Meanwhile, 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.

The government 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 
government¹s concept of an ³enemy combatant² in a ³war on terror,² the court 
upended the relationship between military and civilian ­ and between liberty and
power ­ that historically had existed in this country.

While the 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 Circuit¹s judgment.

What did the U.S. Supreme Court do? That was another part of the legal strategy 
that federal officials employed. Padilla¹s 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 the government.

Before the 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 
³enemy combatant² subject to military control?

The answer was easy to see: The government had the Fourth Circuit¹s 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 
Circuit¹s judgment in the government¹s favor would be left standing.

There was 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 to rule.

Federal officials 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. That¹s 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 Circuit¹s judgment.

The strategy succeeded. Ruling that the case was now moot, the Supreme Court 
declined to hear Padilla¹s appeal, which left the Fourth Circuit¹s judgment 
approving the government¹s ³enemy combatant² theory intact.

³Well, how come they¹re not arresting, torturing, and executing lots of 
Americans then?² 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 of Americans.

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 ³enemy combatants.² All that¹s needed is the right 
³emergency² or ³crisis² and this standby power can be unleashed on the American 
people ­ in the course of protecting them from the terrorists, of course.

It¹s 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 ³enemy combatant² and treated accordingly. As soon as an American 
³enemy combatant² files a petition for writ of habeas corpus, the government 
will quickly file its response showing that the prisoner is being held as an 
³enemy combatant² in time of ³war,² citing the Fourth Circuit¹s decision in the 
Padilla case upholding the ³enemy combatant² designation as part of the ongoing 
³war on terrorism.² Given the long-established tradition of federal courts not 
to second-guess the president¹s war-making decisions, it is a virtual certainty 
that no federal court will second-guess the president¹s and the Pentagon¹s 
³enemy combatant² determinations. The courts will very likely swiftly dismiss 
habeas corpus petitions brought by Americans who have been labeled ³enemy 

While there 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 ³emergency² or ³crisis² 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 anyway.

As an integral part of the federal government¹s ³war on terror,² which itself is
an inexorable part of the government¹s pro-empire, pro-intervention foreign 
policy, the U.S. military¹s 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 ³crisis² or ³emergency, ² 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.

Jacob Hornberger [send him mail] is founder and president of The Future of 
Freedom Foundation. He will be among the 22 speakers at FFF¹s upcoming 
conference on June 1­4 in Reston, Virginia: ³Restoring the Constitution: Foreign
Policy and Civil Liberties.²

Copyright © 2007 Future of Freedom Foundation
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