The Backdoor to Military Rule in America

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Without any doubt, the most dangerous threat to the freedom of the American people in our lifetime lies with what might be called the Padilla doctrine, an exercise of such raw military power that, if upheld, will totally transform life in America as we know it. Unfortunately most Americans remain blissfully unaware of the ominous implications of this doctrine.

On May 8, 2002, Jose Padilla, an American citizen, flew from Pakistan to Chicago’s O’Hare International Airport, where he was taken into custody by federal agents as part of the U.S. government’s “war on terrorism.” Initially held as a “material witness,” Padilla was transferred to New York, where he was assigned an attorney.

Soon thereafter, however, federal officials removed Padilla from the jurisdiction of the federal court and transferred him to the control of the Pentagon. Moved to a naval brig in South Carolina, Padilla was held indefinitely as an “enemy combatant” in the “war on terrorism” and denied the right to consult with his attorney, the right to due process of law, and the right to trial by jury.

The government’s position was that since Padilla was a prisoner of war (that is, a part of the “war on terrorism”) — and an “illegal combatant” at that — there was no reason to accord him the rights and guarantees that the Constitution requires the government to accord criminal defendants. The Pentagon also maintained that it could hold Padilla for as long as the “war on terrorism” lasted, even if that was forever.

One of the legitimate functions of government is to arrest, prosecute, and punish people who commit acts of violence against others. Thus, over time an array of criminal offenses has developed within the criminal-justice system that encompasses such acts as murder, rape, theft, robbery, burglary, trespass . . . and terrorism. The idea is that if a person commits violent acts against others, it is the duty of the state to punish him.

However, the obvious question arises: How do we really know that the person has truly committed the offense with which he is charged?

Obviously, one option would be to leave the matter up to federal officials. We could simply place our blind faith in their good judgment, trusting them to punish only the truly guilty and to leave everyone else alone.

Procedural rights and guarantees

That’s not the option that our forefathers chose, however, when they brought into existence the U.S. federal government. They instead brought forward, through the Constitution and the Bill of Rights, a criminal-justice system that recognized procedural rights and guarantees that had long been accorded people accused of a crime; some of these protections even stretched as far back as the Magna Carta in 1215.

Such rights include the right to habeas corpus, which is a legal proceeding by which a person held in custody can petition a judge to order the custodian to bring the prisoner to court and show cause why he should not be released.

They also include the right to the effective assistance of counsel, which recognizes that a lay person charged with a crime would have little chance in a courtroom against an experienced prosecutor.

There is the right to due process of law, which entails, at a minimum, notice of the charges and the right to be heard.

There is the right of trial by jury, ensuring that ordinary people in the community, rather than a judge, will have the final say in whether a person truly is guilty or not.

There is the right to confront witnesses, ensuring that people aren’t convicted on the basis of hearsay statements.

There is the right to compel favorable witnesses to appear and give their testimony at trial.

And there is the presumption of innocence, which entitles the accused to remain silent and requires the government to prove his guilt beyond a reasonable doubt. And there are several more.

Why were such rights carved out over the centuries and why did people require the king or the president to recognize and honor them? Because people realized that, while the government is charged with the important job of punishing violent lawbreakers, government officials oftentimes abused or mishandled such power by wrongfully accusing innocent people of crimes. Thus, the protections that were built up over centuries were designed with one purpose in mind: to ensure that people were not convicted of crimes that they did not commit.

Despite the many imperfections in America’s criminal-justice system, Americans rightfully can take pride in the fact that never in history has a nation had a better system for protecting the rights of the accused in criminal cases. And keep in mind that thanks to the express wording of the Constitution and the Bill of Rights, all these rights and guarantees apply not just to Americans but to everyone, including foreigners, who is accused of a federal crime.

Sabotaging the Constitution

The Padilla doctrine is a back-door attempt by the Pentagon to sabotage America’s federal criminal-justice system. The doctrine threatens to destroy the centuries-old rights and guarantees. It is impossible to overstate its ominous and dangerous implications. And while many Americans lie blissfully unaware of the implications of the Padilla doctrine, there is no doubt that U.S. officials, especially those in the Pentagon, are fully aware of such implications, which is undoubtedly why Pentagon officials have been fighting tooth and nail to prevail in the Padilla case for some three years.

Ordinarily, a person who is accused of terrorism would be treated as any other person accused of a federal crime. He would be arrested, taken before a federal magistrate, indicted, and accorded right to counsel, right to trial by jury, right to due process, et cetera. That is, in fact, why terrorist suspect Zacarias Moussaoui, the so-called 20th hijacker in the 9/11 attacks, was charged with terrorism, which is a federal criminal offense, in U.S. district court in Virginia.

Under the Padilla doctrine, however, the Pentagon claims the authority to arrest and punish an accused terrorist without any federal court interference whatsoever. The Pentagon’s thinking goes like this: The “war on terrorism” is a real war, just like World War I and World War II. Therefore, terrorism isn’t really a crime but instead an act of war. Therefore, anyone whom the Pentagon accuses of terrorism becomes a prisoner of war, not a criminal defendant. Best of all, from the military’s standpoint, is that the prisoner isn’t even entitled to the protections of the Geneva Convention, which governs prisoners of war: these prisoners, the Pentagon reasons, are “illegal combatants” because terrorism is not a lawful way to wage war and because the combatants aren’t wearing military uniforms anyway. The procedure does have one “safeguard,” however: a requirement that the president sign a formal order designating the prisoner to be an unlawful combatant in the federal war on terrorism.

The Padilla doctrine’s big net

Now ask yourself: If this power is upheld — that is, if the Pentagon is permitted to wield the power to take people into custody for terrorism offenses and prevent the federal courts from interfering with its determination and its punishment of such detainees — then who in the world is safe from the exercise and abuse of such power?

Federal officials would undoubtedly answer that they would never falsely or incorrectly accuse anyone of terrorism.

But that answer would fly in the face of centuries of prosecutorial abuse, which is exactly why the American people required their government officials to honor the procedural rights and guarantees enumerated in the Constitution and Bill of Rights. History is replete with examples of governments that used the criminal-justice system to round up and punish innocent people, especially those who have had the audacity to tell the truth about government abuses and wrongdoing. And after all, don’t forget that the Red Cross has estimated that some 70 percent of the Pentagon’s detainees at Abu Ghraib prison in Iraq, where the Pentagon operates without any federal court interference, are innocent of any crimes.

I repeat: If the Padilla doctrine is upheld, what protection do ordinary Americans have? Consider a newspaper editor, for example, whose editorials are consistently calling for an independent investigation into the torture and sex-abuse scandals at Guantanamo Bay and in Iraq. Suppose the Pentagon decided that those editorials were supporting terrorists, albeit indirectly. They send a squad of soldiers to pick up the editor and then transfer him to the same naval brig in South Carolina where they’re holding Padilla.

What could the editor do? The answer is, under the Padilla doctrine: Nothing. He could not hire an attorney because he wouldn’t be entitled to an attorney. (After the Pentagon took control of Padilla, he was prohibited access to the attorney that had initially been appointed to represent him. Once the federal courts ordered that Padilla was to be accorded counsel, the Pentagon relented.)

The editor also couldn’t seek relief in federal courts because the federal courts wouldn’t have the authority to interfere with the military decision to take the editor into custody. If his family sued in his behalf, under the Padilla doctrine their suit would immediately be thrown out of court.

Under the Padilla doctrine, there would be no check on the power of the military to take people into custody and punish them, even execute them. The military’s power over the American people would be absolute. And given the Pentagon’s position that terrorist detainees are not entitled to the protections of the Geneva Convention, prisoners would be subject to being tortured and sexually abused by U.S. troops, as has been the case overseas.

Of course, there are those who might say, “Well, the problem really isn’t that major because the feds certainly aren’t rounding up newspaper editors.” That’s right, but only because they know that by doing so, they would inevitably arouse the attention of the American people, especially those in the press. The feds know that the Padilla case is simply their test case. If they can prevail there, they know that that favorable ruling will have universal applicability.

In other words, there’s no sense rounding up large numbers of Americans, which would incite demonstrations against such roundups, until the military secures a favorable definitive and final ruling upholding its Padilla doctrine. That will be when the roundups begin because U.S. officials will then be certain that the federal courts will not — and cannot — interfere with their operations.

A Pentagon win in Padilla?

What are the chances of military success in the Padilla case? So far, not very good because fortunately the judicial branch of the federal government, which many federal officials in both the executive and congressional branches are now attacking, is putting the quietus on the assumption and exercise of such power. In fact, if it weren’t for the judicial branch, the Pentagon would have free rein to enforce the Padilla doctrine, given that the members of Congress have shown nothing but indifference to the Pentagon’s treatment of Jose Padilla.

Padilla’s attorney initially filed a petition for a writ of habeas corpus in New York, where she had initially been appointed to represent him. The district court certified the case to the Second Circuit Court of Appeals, which ruled in favor of Padilla. Federal officials appealed to the U.S. Supreme Court. In a 5-4 decision, the Court held that the petition for writ of habeas corpus had been filed in the wrong jurisdiction (New York) and that it should instead have been filed in South Carolina (where Padilla is being held). However, four justices dissented from that ruling, ardently rejecting the Pentagon’s arguments and arguing that the Court should consider the case and grant Padilla relief.

In a related case involving another American, Yaser Hamdi, who was actually taken into custody on the battlefield in Afghanistan, the Supreme Court held that Hamdi was entitled to habeas corpus and effectively ordered the government to either charge him or release him. Oddly, after arguing for years that Hamdi was a dangerous terrorist and denying him right to counsel and due process of law, the government chose to release him rather than charge him with terrorism.

When the justices who ruled in favor of Hamdi — whose factual situation was much less sympathetic than that of Padilla (Padilla having been arrested on Americana soil, while Hamdi was taken into custody on the battlefield in Afghanistan) — are added to the justices who ruled in favor of hearing the Padilla case, it is fairly clear that the Supreme Court, as it currently stands, will ultimately rule against the Pentagon and in favor of Padilla (and, indirectly, in favor of the freedom of the American people).

Padilla refiled his petition for a writ of habeas corpus in a federal district court in South Carolina, which recently ruled in his favor. The Pentagon, however, refuses to surrender: federal officials have filed an appeal with the Fourth Circuit Court of Appeals. Padilla’s attorneys, in turn, have asked the U.S. Supreme Court to take the case directly, skipping the court of appeals.

While things look good for Padilla (and the American people) insofar as the judicial rulings are concerned, nothing should be taken for granted, especially given the silent and supine role that Congress has played in this entire affair and given the recent attacks by certain congressmen on the independence of the judicial branch.

If the Pentagon ends up winning in the Padilla case, Americans will ultimately discover why the Pentagon was fighting so hard to prevail and how victory in the Padilla case will have provided the Pentagon with a backdoor to military rule in America.

Note: On September 9, 2005, after this article was published, the Fourth Circuit Court of Appeals rendered judgment (pdf) in favor of the government and against Padilla, reversing the district court’s decision in favor of Padilla. Padilla is now expected to appeal the decision to the U.S. Supreme Court.

September 22, 2005

Jacob Hornberger [send him mail] is founder and president of The Future of Freedom Foundation.

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