What Obama’s KSM decision means for all of us

By Jacob Hornberger

Last month, President Obama announced that Khalid Sheik Mohammed would be transferred to New York, where he would stand trial in U.S. district court for his purported role as principal architect of the 9/11 attacks. At the same time, Obama announced that other terrorist suspects would continue to be tried for terrorism in the Pentagon’s military-commissions system, which was established after 9/11.

Which judicial system is chosen—the federal courts or military commissions system—has important consequences for accused terrorists. What all too many Americans fail to realize, however, is the enormity of the impact that this dual system of justice has had on the country’s constitutional order. The precedents created here will extend far beyond the war on terror.

Suppose drug-war violence in Mexico spills over into the United States. Gangs begin kidnapping, torturing, and murdering federal law-enforcement agents and judges. Federal buildings are bombed. Gang-war gun battles break out on the streets, resulting in the deaths of bystanders.

The violence induces the U.S. government to re-declare a war on drugs. The president orders the military to undertake at home the same type of interdiction operations it has been taking in foreign countries for decades. The Pentagon immediately sends several thousand battle-tested troops to the southern border to wage the struggle.

When critics complain that the Posse Comitatus Act prohibits the military from engaging in domestic law enforcement, the president responds that this is war, not criminal justice, and that in this war, as in the war on terrorism, the entire world, including the United States, is the battlefield. As commander in chief, the president says, he wields the power to send the military onto the battlefield to capture or kill the enemy wherever he may be found.

And as part of the war, the president and the Pentagon announce that there will now be two alternative judicial systems for handling drug offenders.

One system will be the traditional one established by the Constitution, the one involving federal grand-jury indictments, trials before federal judges, the presumption of innocence, protection from self-incrimination, suppression of illegally obtained evidence, freedom from cruel and unusual punishments, effective assistance of counsel, a speedy and public trial, the right to confront witnesses, and trial by jury.

The other judicial system will be established and operated by the Pentagon, at its prison camp in Cuba. Its procedures will be entirely different from those in the U.S. federal courts. Drug-war combatants shunted into this system will be presumed guilty, subject to torture and abuse, and denied the procedural rights and guarantees provided in the Bill of Rights.

Deciding which system of justice will be applied to each suspected drug offender will rest entirely in the hands of federal officials, especially the military. They will wield full discretionary authority to make the call. As a political and practical matter, the policy will be to send most, but not all, American suspects into the federal court system. Foreign citizens, on the other hand, will largely be subjected to the Pentagon’s system.

While many long-time drug-war proponents would undoubtedly hail such a change as a positive development in their decades-long hope of finally winning the war on drugs, most Americans would surely feel a sense of unease about such an announcement. Many of them would recognize that such a change would fundamentally alter America’s criminal-justice system.

Let’s keep in mind that the Bill of Rights doesn’t really give anyone any rights. Instead, it does two primary things: it prohibits the federal government from infringing upon fundamental and inherent rights of the people, and it forces federal officials to accord people charged with crimes important procedural rights and guarantees that have been carved out in the struggle between liberty and tyranny, a struggle that stretches back centuries into British history.

Why did the American people demand passage of the Bill of Rights? Because they considered the federal government, which the Constitution had brought into existence, to be the primary threat to their freedom and well-being. Americans were convinced that the federal government would end up doing the bad things that governments historically had done to people, such as confiscating weapons to ensure submissiveness to the government and rounding up people for criticizing the government and torturing them.

While no one really thought that the Bill of Rights would dissuade federal officials from desiring to do such things, the idea was to make clear that those sorts of practices were not to be countenanced in this country. If the federal government wished to incarcerate or otherwise punish people, whether foreign or American, it would be required to follow long-established procedures relating to due process of law, a term that stretched back to Magna Carta in 1215.

How does all this apply to our drug-war hypothetical? By assuming the power to treat drug-war violators as enemy combatants, federal officials would be implementing a fool-proof way to circumvent the rights and guarantees provided in the Bill of Rights. This dual system of justice by which the government would wield the power to subject suspects to two alternative systems of justice—one in the federal courts and one in the military tribunals—would constitute the perfect circumvention of the Bill of Rights.

That’s precisely the revolutionary change that was effected by federal officials, including those in the military, after 9/11 with respect to terrorism cases.

Prior to 9/11, the federal government treated terrorism as a federal criminal offense. That’s not surprising, given that terrorism is listed as a federal crime in the U.S. Code. That’s why such terrorists as Ramzi Yousef, who bombed the World Trade Center in 1993, and Timothy McVeigh, who carried out the Oklahoma City bombing in 1995, were indicted, tried, convicted, and sentenced in federal district court.

Thus, those who claim that terrorism is an act of war rather than a criminal offense are simply wrong. It is indisputable that terrorism is, in fact, a federal criminal offense. If you have any doubts, just look at the U.S. Code. Or go look at the federal-court indictments and prosecutions of Yousef and McVeigh, or for that matter, Zacarias Moussaoui, Jose Padilla, Ali al-Marri, or a host of other people, who have been indicted and tried for terrorism in U.S. district courts, both before and after 9/11.

Over time, in the fear-ridden environment following the 9/11 attacks, the Bush administration, working closely with the Pentagon, effected a revolutionary change to America’s constitutional order. They declared that federal officials, as a result of the attacks on the World Trade Center and Pentagon itself, would now wield the authority to treat people suspected of having committed terrorist acts as either criminal defendants or as enemy combatants.

It would be difficult to find a better example of a violation of the principles of the rule of law and equal treatment under law than that. The rule of law is designed to enable people to answer to a well-defined law for their conduct, not to the discretionary judgment of government officials. Yet the determination of whether terrorist suspects would be treated as criminal defendants or as enemy combatants is based entirely on the discretionary, ad hoc decisions of federal officials.

No better example of the arbitrary nature of this process could be found than the Padilla and al-Marri cases and, now, the case of Khalid Sheik Mohammed. Padilla began his journey as an enemy combatant until, after many years of military incarceration and abuse, the government suddenly changed its mind and decided to treat him as a criminal defendant. Al-Marri began as a criminal defendant, was converted to an enemy combatant, and then years later suddenly re-converted to criminal-defendant status. And before Mohammed was suddenly converted to criminal-defendant status, he had been held as an enemy combatant since 2003.

Each system entails completely different forms of treatment. In the federal court system, a person receives the protections of the Bill of Rights. Under the military’s system, he is subjected to the horrors that the Bill of Rights was designed to prohibit or restrict. For example, during Mohammed’s time as an enemy combatant, he was waterboarded 183 times. With his conversion to criminal-defendant status, he won’t be waterboarded at all.

We should also note another monumental change to our constitutional order wrought by 9/11—the power of the military to ignore verdicts of acquittal in federal-court terrorism cases. From the inception of our nation all the way up to 9/11, when a person charged with terrorism was acquitted by a jury of his peers in federal district court, the presiding judge would immediately set him free, which is what the Constitution requires.

Alas, not anymore. Now, federal officials wield the post-9/11 power to ignore the jury’s verdict of acquittal in terrorism cases and keep the person in custody indefinitely as a military belligerent. Thus, in federal criminal cases involving terrorism, federal judges are now expected to check with the military before they free an accused terrorist who has won a “not guilty” verdict from a federal-court jury.

We should bear in mind that this immense power—the power to completely circumvent the Bill of Rights in criminal cases involving terrorism—was achieved without even the semblance of a constitutional amendment. The power was simply declared and assumed by U.S. officials after 9/11.

Given that federal officials now wield the power to treat one federal criminal offense—terrorism—as either a crime or an act of war, there is no inherent reason why such power cannot be expanded to encompass other federal crimes, such as drug offenses. In fact, given the interrelationship between drug dealing and terrorism, one can easily imagine that federal officials will eventually expand their war on terrorism powers to the war on drugs. All that’s needed is the right crisis. It’s a matter of time before the president and Defense Department find ever more uses for this alternate system of justice that conveniently sidesteps the Bill of Rights.

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