The Assault on Freedom

Jacob G. Hornberger explains:

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.