The Enemy-Combatant Attack on Freedom

by Jacob G. Hornberger
by Jacob G. Hornberger

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Since an attack on Iran could result in heightened “war-on-terrorism” emergencies here in the United States, this would be a good time to review the issue of “enemy combatants,” especially as the concept applies to American citizens. To analyze the critical importance of the “enemy-combatant” doctrine, we will examine the cases of two people who were incarcerated as “enemy combatants” – José Padilla, an American citizen, and Ali al-Marri, a citizen of Qatar. Both were taken into custody on American soil, labeled “enemy combatants,” and incarcerated by the U.S. military.

Padilla was initially arrested in May 2002 at Chicago’s O’Hare International Airport after returning from a trip to Egypt, Saudi Arabia, Afghanistan, Pakistan, and Iraq. At first he was moved to New York and held in custody by U.S. civilian authorities as a “material witness.” The following month, however, he was labeled an “enemy combatant” by President Bush as part of the president’s “war on terror.” Padilla was then transferred to the custody of the U.S. military, which removed him to a military brig in South Carolina.

Padilla’s attorney filed a petition for writ of habeas corpus in New York federal district court. The origins of this particular writ stretch back to medieval England, where the king would oftentimes take citizens into custody and punish them for political reasons. Habeas corpus, which the Framers expressly guaranteed in the Constitution, provides the means by which a person in custody can test the legal validity of his detention.

Here is the way that habeas corpus works: The detainee files his petition for a writ of habeas corpus with a court. The judge issues the writ, commanding the person who is holding the petitioner in custody to appear in his court with the petitioner and show cause for holding the person. There is an evidentiary hearing.

If the judge concludes that there is just cause for holding the detainee, he will deny the petition. On the other hand, if he concludes that there is not just cause, he will order the release of the petitioner. Each side can appeal the judge’s decision to the higher courts. In the federal system, this would mean an appeal to the federal court of appeals in which the district court is situated. Each side can then appeal that decision to the U.S. Supreme Court.

There are two important factors to keep in mind about the habeas corpus proceeding. First, the judge must decide whether the reason for the detention is valid, and, second, assuming the reason is valid, he must decide whether there is sufficient evidence to support the detention.

For example, suppose the president ordered the arrest and incarceration of a person who gave a speech critical of the president’s foreign policy. At the habeas corpus hearing, the government might submit a videotape of the petitioner that actually does show him giving a speech criticizing, say, the invasion of Iraq.

In this case, the judge would order the release of the petitioner because the government would have failed to meet both prongs of the test. Even though the government produced evidence showing that the petitioner delivered the speech, it failed to show that giving a speech critical of foreign policy is against the law. And even if Congress had made such speech illegal, the court could still order the release of the petitioner on the ground that such a law was in violation of the Constitution.

Suppose the president orders the arrest of a person who has shot a federal officer performing his duties. At the habeas corpus proceeding, the government fails to produce any evidence that the petitioner has committed the offense. Even though the reason for the detention is valid (i.e., there is a federal law against shooting federal officers doing their duty), the judge would nonetheless order the release of the prisoner because the government failed to provide any evidence that the petitioner was, in fact, the one who did the shooting.

Thus, in a habeas corpus proceeding involving a suspected terrorist who has been labeled an “enemy combatant,” a court must resolve two issues. The first issue is: Is the “enemy-combatant” doctrine valid? Second, if it is valid, is there any evidence that the petitioner is, in fact, an “enemy combatant”? And actually, there is a third issue: How much evidence and what type of evidence must the government produce at the habeas corpus hearing?

The proceedings in New York and South Carolina

At Padilla’s habeas corpus hearing, the district court upheld the enemy-combatant doctrine and ruled that there was sufficient evidence to conclude that he was, in fact, an enemy combatant. His petition for writ of habeas corpus was denied.

Padilla appealed to the Second Circuit Court of Appeals in New York, which overturned the district court’s ruling. The court rejected the enemy-combatant doctrine for Americans arrested on American soil, effectively holding that if the government had evidence that Padilla had committed some act of terrorism, it would have to secure a criminal indictment against him and prosecute him in federal district court. Since the U.S. military was holding Padilla under no valid justification, the fact that the government was able to produce incriminating evidence was irrelevant because, again, both prongs of the test must be met. What the court was effectively telling the government was: Charge Padilla in federal district court with a criminal offense or release him.

The government appealed that decision to the U.S. Supreme Court. The Supreme Court refused to rule on the merits of the case and instead dismissed it on a procedural ground. The Court ruled that the original petition should have been brought in a South Carolina federal district court rather than a New York federal district court because that was where Padilla was in military custody. In their dissent to this ruling, however, some of the justices were clearly sympathetic to Padilla’s arguments.

Padilla then started all over, filing a new petition for writ of habeas corpus in a South Carolina federal district court. The South Carolina district court rejected the enemy-combatant doctrine, effectively holding the same thing that the Second Circuit Court of Appeals had held. The South Carolina court also effectively told the government: Charge Padilla in federal district court or release him.

The government then appealed to the Fourth Circuit Court of Appeals in Richmond, which is reputed to be the most conservative federal appeals court in the nation. Upholding the enemy-combatant doctrine, in June 2005 a three-judge panel of that court overturned the South Carolina district court’s ruling.

While Padilla was appealing that decision to the U.S. Supreme Court, the government pulled a very clever legal maneuver. In November 2005 – three years after he had been taken into custody – the government secured a criminal indictment against Padilla and transferred him from military custody to civilian custody for criminal prosecution for terrorism in a Florida federal district court. That meant that Padilla’s habeas corpus appeal to the U.S. Supreme Court was now moot, because he was no longer in military custody. With the government’s clever legal maneuvering, the nation was left with the Fourth Circuit’s decision upholding the enemy-combatant doctrine and without much of a chance that the Supreme Court would have the opportunity to consider and possibly overturn that decision any time soon.

On August 7, 2007, a federal jury convicted Padilla of criminal offenses relating to terrorism.

The importance of the Padilla case

It is impossible to overstate the importance of the principles involved in the Padilla case for the American people. Ordinary Americans might ask, “Why get all upset about some guy named José Padilla? He’s just a terrorist.”

What such Americans fail to realize, however, is that Padilla was just the test case whose legal principles would then apply to all Americans. That’s why groups dedicated to civil liberties and especially the Bill of Rights (including The Future of Freedom Foundation) have focused such an inordinate amount of attention on the Padilla case. They understood that if the enemy-combatant doctrine would be upheld with respect to Padilla, the government would then be able to apply it against all Americans, including dissidents, protesters, and critics of the government.

The enemy-combatant doctrine constitutes the most direct and dangerous threat to the freedom of the American people in the history of our country. Prior to 9/11, terrorism was considered by almost everyone a federal criminal offense. If anyone, including an American, was accused of terrorism, the government had to secure a grand-jury indictment against him and prosecute him in U.S. district court. In that proceeding, the accused would be entitled to all the rights and guarantees enumerated in the Bill of Rights, such as the right to counsel, right to due process of law, right to trial by jury, right to be free from unreasonable searches and seizures, right to confront witnesses, and right against self-incrimination.

The fact that terrorism has historically been considered a criminal offense was reflected, for example, in the federal criminal prosecutions of convicted terrorists Ramzi Yousef, one of the architects of the 1993 bombing of the World Trade Center, and Timothy McVeigh, the man who bombed the Oklahoma City federal building. Indeed, even in the post–9/11 era, the government has prosecuted one of the 9/11 co-conspirators, Zacarias Moussaoui, in federal district court, as well as other terrorist suspects in Michigan, Florida, and elsewhere.

What was revolutionary about President Bush’s treatment of José Padilla was that for the first time in U.S. history, the government was claiming the power to treat suspected terrorists in two alternative ways: (1) through the normal federal-court route; and (2) through the enemy-combatant route. It would be difficult to find a more perfect violation of the age-old principle of the “rule of law,” the principle that holds that all people should have to answer to a well-defined law for their conduct rather than to the discretionary decisions of government officials. With the post–9/11 option to treat suspected terrorists in two completely different ways, each with markedly different consequences, the president and the Pentagon converted the United States from a “nation of laws” to a “nation of men.”

Another revolutionary aspect of the enemy-combatant doctrine was how the discretionary power to treat suspected terrorists, including Americans, as enemy combatants was acquired by the president and the Pentagon. Despite the assumption of this monumental power by the executive branch, there never was a constitutional amendment authorizing it. Initially, there wasn’t even a law enacted by Congress granting such power to the president. Instead, the president simply announced that as a result of 9/11 and his “war on terrorism,” he and the military now possessed the power to treat anybody suspected of terrorism – American or foreigner – as an enemy combatant.

But it wasn’t as if other presidents had not declared a war on terrorism. The war-on-terrorism verbiage, in fact, goes back to Ronald Reagan and was carried forward through the presidencies of George H.W. Bush and Bill Clinton. Nevertheless, their administrations continued to treat terrorism as a criminal offense – not a surprise, given that terrorism has always been treated as a crime rather than as an act of war. What enabled the current President Bush and the Pentagon to succeed with their acquisition of such unique and omnipotent power was the magnitude of the 9/11 attacks, along with the massive amount of fear that the attacks generated within government officials and the American people.

Imagine that a Mexican drug cartel sneaks into El Paso and blows up the building housing the Drug Enforcement Administration, killing hundreds of DEA officials. After the attack, President Bush announces a war on drugs and a war on illegal immigration. He declares that from that day forward he and the Pentagon will have the option of sending a suspected drug dealer or illegal immigrant into the normal criminal-justice channels or labeling him an enemy combatant in the war on drugs or the war on illegal immigration.

Ridiculous? You bet! But that’s exactly what Bush and the Pentagon did after 9/11. They took a figure of speech – “war on terrorism,” which is no different from the “war on drugs” or “war on crime” or “war on the Mafia” – and assumed a power that constitutes the most direct assault on American liberty in our nation’s history.

The power to treat an American as an enemy combatant trumps all the rights and guarantees of the American people. Freedom of speech, freedom of the press, the right to assemble, the right to bear arms, due process of law, and all the rest of the guarantees in the Bill of Rights are effectively rendered meaningless in the face of the power to label a person an enemy combatant.

Why is this so? How effective are any of those rights or guarantees in a society in which the ruler and his military can simply go out and arrest, torture, detain indefinitely, and even execute anyone they want, simply by placing the label “enemy combatant” on him?

Imagine, for example, an anti-war protester’s being water-boarded for his unpatriotic opposition to the war on terrorism. He might scream, “I’ve got the right to speak my mind and criticize the government!” The torturer would respond, “Well, of course you do. But we have our ‘rights’ too, and they include taking you into custody as an enemy combatant and treating you accordingly.”

Do people have any real protection against being labeled and treated as enemy combatants? In 2006, at the behest of President Bush, the Congress enacted the Military Commissions Act, which codified into law the enemy-combatant power that the president and the Pentagon assumed after 9/11. Under that law, any person, American or foreigner, suspected of terrorism can be labeled and treated as an enemy combatant.

The role of habeas corpus

One of the major differences, however, between foreigners and Americans – a shameful one, given its unequal treatment – related to habeas corpus. Congress removed the jurisdiction of the federal courts to hear habeas corpus petitions filed by foreign terrorist suspects who had been labeled enemy combatants. Americans accused of terrorism, on the other hand, were still entitled to employ habeas corpus.

But if anyone is thinking that habeas corpus provides real protection for Americans labeled enemy combatants, he would be wise to think again. It doesn’t. Recall that in a habeas corpus proceeding, the government must meet two prongs of a test: First, it must show that the reason for the detention is valid and, second, it must show some evidence that the detainee has committed the offense.

If the enemy-combatant doctrine were to be ruled unconstitutional, the game would be over for the government, and the court would order the military to release the detainee from custody, no matter how much evidence the government could show implicating the detainee in terrorism. The government’s recourse would be to charge the person with terrorism and prosecute him in federal district court, as the government has done with Zacarias Moussaoui, José Padilla, and many others.

But once the enemy-combatant doctrine is ruled constitutional, the game is virtually over in favor of the government. At that point, at the habeas corpus hearing all the government has to do is provide some evidence that the prisoner has committed some act of terrorism, at which point the court will deny the petition and order the detainee to remain in the custody of the military.

Would the government be able to come up with some evidence of terrorism in the case of an anti-war critic who had been labeled an enemy combatant? Of course it could, even if it had to do a bit of manufacturing. It could, for example, introduce hearsay, which would entail testimony similar to this: “A CIA agent, whose identity must be kept secret, told me that that the detainee had met with a member of al-Qaeda and discussed how anti-war protests could help bring down the federal government.”

How much evidence would be required at the habeas corpus hearing to support the president’s finding that the petitioner is, in fact, an enemy combatant? Not very much, especially in a 9/11-type environment in which fear is in hyper-drive and terrorism color codes are bright red. In fact, in José Padilla’s original habeas corpus proceeding in New York, the government took the position that the president’s judgment declaring a person an enemy combatant is almost absolute and that judges should defer to his judgment in the matter rather than conduct a searching fact-finding in the case.

The Padilla and al-Marri cases

The Padilla case provides a baseline for what the government can do to any and all Americans. After all, don’t forget that Padilla is an American citizen. And that’s only an initial baseline. If the courts definitely uphold the enemy-combatant power, the government will be able to treat American enemy combatants in the same way that it has treated foreign enemy combatants at Guantanamo Bay and the various secret CIA facilities around the world – i.e., with torture and sex abuse; rendition; and denial of due process, effective assistance of counsel, and trial by jury. At that point, the government’s power over the American people will be omnipotent and complete, especially in a time of deep crisis or emergency.

What is the status of the enemy-combatant doctrine? As of right now, it is in full force and effect. As a result of the government’s legal maneuvering in the Padilla case, the government has a ruling from the Fourth Circuit Court of Appeals upholding the enemy-combatant doctrine. While it’s theoretically possible that the Supreme Court could rule on the issue in Padilla’s appeal of his criminal conviction, it’s not a certainty. Padilla’s appeal will primarily focus on the sufficiency of the evidence to support his conviction, not his status as an enemy combatant prior to the time he was transferred to the jurisdiction of the federal courts.

However, the Supreme Court might yet have the opportunity to rule on the enemy-combatant doctrine in another case – that involving a foreigner named Ali al-Marri. Al-Marri was indicted for terrorism and was set to go to trial in a U.S. district court. Prior to trial, however, the government moved to dismiss the charges. As soon as the charges were dismissed, the U.S. military took him into custody as an enemy combatant in the war on terrorism.

Al-Marri filed a petition for writ of habeas corpus. (The Military Commissions Act had canceled habeas corpus only for foreigner enemy combatants held outside the United States.) The district court upheld the enemy-combatant doctrine. On appeal, a three-judge panel of the Fourth Circuit Court of Appeals rejected the enemy-combatant doctrine and ruled that al-Marri had to be either prosecuted in federal district court or released. That didn’t sit well with the government, especially since the original judge in al-Marri’s criminal case had granted the government’s motion to dismiss with prejudice, meaning that the government is barred from refiling the criminal charges against al-Marri.

It is interesting that the Fourth Circuit’s three-judge ruling striking down the enemy-combatant power in the al-Marri case was in direct conflict with the Fourth Circuit’s ruling in the Padilla case upholding the enemy-combatant doctrine. Thus, it shouldn’t surprise anyone that the full Fourth Circuit Court of Appeals is now considering the al-Marri case.

The likelihood is that the Fourth Circuit will uphold the enemy-combatant doctrine, especially given that it is the most conservative federal appeals court in the country. No matter which side loses, however, the losing side is almost certain to appeal to the U.S. Supreme Court, which most likely will no longer be able to avoid ruling on the matter.

A war on Iran

The enemy-combatant power must be considered in the context of the president’s possible attack on Iran. If the president follows through with such an attack, it is entirely conceivable that it will produce terrorist blowback, both in the United States and elsewhere, by people sympathetic to the Iranian people. If such terrorist attacks are on the magnitude of the 9/11 attacks, then Americans might well have the opportunity to witness the full exercise of the enemy-combatant power now wielded by the president and the Pentagon.

What would that mean? It would mean that every American would be subject to being treated in the same way that José Padilla was treated prior to his being converted to a federal-court defendant. That is, with the enemy-combatant doctrine, the president could order the military and the CIA to take any American into custody as an enemy combatant in the war on terrorism. That person could then be isolated, tortured (although they wouldn’t call it torture), held in prison for the rest of his life, and executed after a kangaroo military hearing presided over by agents of the Pentagon. He could file a petition for writ of habeas corpus in federal district court but it very likely wouldn’t do him any good because the judge would be unlikely to second-guess the judgment of the president and the military, especially in time of war.

Keep in mind that the government didn’t have to bring Padilla into federal court as a criminal defendant. Under the government’s interpretation of the enemy-combatant doctrine, it could have kept Padilla in military incarceration for the rest of his life, subject of course to periodic bouts of torture. Keep in mind also that when the district judge in Padilla’s criminal case ruled on the criminal indictment against Padilla, knowing what the military had done to him for the previous three years, including denying him a speedy trial, the judge was not sufficiently outraged by the government’s conduct to order a dismissal of the criminal charges against him.

There is obviously no way to reconcile the enemy-combatant power with the principles of a free society. If the enemy-combatant power is ultimately upheld, it will hang over the heads of the American people like a Damocles sword, especially during times of crisis or emergency, when the round-ups could begin at any time. The eradication of the enemy-combatant power, either through judicial ruling or congressional action, is the most important prerequisite to restoring liberty to our land.

June 5, 2008

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

Copyright © 2008 Future of Freedom Foundation

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