[Peace-discuss] "...whenever any form of government becomes destructive of these ends..."

[C. G. Estabrook]

	The Fourth Circuit’s Ominous Decision
	By Jacob G. Hornberger, FFF

Led by conservative judges, the Fourth Circuit Court of Appeals has just 
affirmed the Bush administration’s “enemy combatant” doctrine, a doctrine that 
allows President Bush and his military forces to designate anyone anywhere in 
the world as an “enemy combatant” in the so-called war on terrorism and treat 
him accordingly. While the case that the Court was deciding involved a 
foreigner, Ali al-Marri, the Court’s reasoning applies to American citizens as well.

Al-Marri is a citizen of Qatar. He was under federal court indictment for 
terrorist-related charges and actually preparing for trial under the principles 
of the Constitution, the Bill of Rights, and the U.S. federal court system. 
Before the trial was permitted to begin, U.S. officials yanked Al-Marri out of 
the federal court system and sent him into the clutches of the U.S. military. 
The government took the position that ever since 9/11 it had the power to treat 
suspected terrorists in one of two alternative ways — as a federal court 
defendant or as an “enemy combatant.” While they initially chose the first route 
with al-Marri, they ended up employing the second route.

The Fourth Circuit Court of Appeals has now upheld the government’s position and 
the government’s actions. That means that the president and the Pentagon now 
wield the same power wielded by totalitarian and authoritarian regimes around 
the world: the power to sweep into neighborhoods across the land and arbitrarily 
take citizens into custody as “enemy combatants.” After all, don’t forget the 
government’s argument, an argument that has now been upheld by a federal court 
of appeals: In the global war on terror, the entire United States is part of the 
battlefield.

Do people taken into custody by the military have any recourse? Yes, but it is 
extremely limited. They still have the right to file a petition for writ of 
habeas corpus to challenge the government’s designation of them as “enemy 
combatants.” But as soon as the government provides some evidence indicating 
that the detainee is a terrorist, then the government’s detention of him will be 
upheld and the courts will sustain the detention. And don’t forget the 
government’s argument: that in “war” the courts should defer to the wartime 
decisions of the commander in chief and his military.

Prior to 9/11, terrorism had always been considered a criminal offense. In fact, 
it’s still on the federal statute books as a criminal offense. That’s why, for 
example, terrorists such as Ramzi Yousef (the 1993 WTC terrorist), Timothy 
McVeigh (the Oklahoma City terrorist), and Zacharias Moussaoui (the 9/11 
terrorist) were prosecuted, convicted, and sentenced in federal district court.

After 9/11, the president unilaterally adopted a new order of things here in the 
United States, without even the semblance of a constitutional amendment. From 
that point on, the president and the Pentagon would have the option of treating 
suspected terrorists, including Americans, as “enemy combatants” and treating 
them accordingly. Soon afterward, they established their torture and sex abuse 
camp for suspected terrorists in Cuba and later took an American citizen, Jose 
Padilla, into military custody as an “enemy combatant.”

Will Americans be concerned about the al-Marri decision? Not likely. Most of 
them will continue their sheep-like or ostrich-like way of life. The reason is 
that since the president and the military aren’t arresting Americans en masse 
and carting them into concentration centers, the standard attitude is, “Why worry?”

But if there is another big terrorist attack, then it is a virtual certainty 
that Americans will get to witness the full exercise of the power that has now 
been sustained by the Fourth Circuit. Orders for round-ups will be issued, and 
the troops will loyally and obediently follow those orders. In the midst of the 
fear and panic generated by such an attack, American sheep, both male and 
female, will not object to the round-ups of hundreds or thousands of American 
“terrorists” and “terrorist sympathizers.” For the sheep, the fear of being 
among those rounded up will be worse than the fear of “the terrorists.”

How will the Pentagon treat American “enemy combatants” in such a “crisis”? 
Well, just ask John Walker Lindh and Jose Padilla, two Americans who were 
tortured after being arrested. The fact is that U.S. personnel, both in the CIA 
and the military, view American “enemy combatants” in a much worse light than 
foreign “enemy combatants” because of the traitor aspect.

Given the decision in al-Marri, the government’s torture and sex abuse policy 
and its rendition policy now become more important for Americans. There is 
absolutely no reason that U.S. officials cannot treat American “enemy 
combatants” the same way they treat foreign enemy combatants. And everyone knows 
by now what they do to people they think are foreign “enemy combatants.”

Isn’t it amazing how the embrace of an imperial foreign policy can wreak such 
major changes in life at home? The president and his military go abroad and poke 
hornet’s nests. The hornets finally strike back. The retaliation enables the 
president and the military to revolutionize America’s judicial system through 
the unilateral assumption of omnipotent power over the citizenry by the 
president and the military. The courts uphold the assumption of power on the 
ground that the U.S. is now at “war” with the hornets, which attacked in the 
first place because the president and the military were poking their nests.

When will ordinary Americans finally start fighting back? When will they finally 
begin defending their own fundamental rights and liberties? When will they 
conquer their fears of both the government and “the terrorists”? When will they 
stop falling for the lies and deceptions? When will they finally begin behaving 
like men and women and not like sheep?

Mr. Hornberger is founder and president of The Future of Freedom Foundation.