09 May 2010 By
Jacob G. Hornberger In an editorial yesterday entitled “Obama
Administration Owes Answers on How It Handled Times
Square Suspect,” the Washington Post wants to
know whether the Obama administration was too hasty in
treating accused Times Square terrorist Faisal Shahzad
as a criminal suspect rather than an “enemy
combatant.” The Post stated: “The administration rightly came under fire
for its handling of the case of Umar Farouk
Abdulmutallab, a Nigerian citizen who tried to ignite
explosives on a Detroit-bound plane on Christmas Day.
In that case, the Justice Department … rashly embraced
a law enforcement approach without fully considering
other options, including holding Mr. Abdullmutallab as
an enemy combatant.” (Emphasis added.) The Post goes on to say: “The Shahzad case is different, primarily because
Mr. Shahzad is an American citizen.” The Post’s editorial exemplifies how corrupt
America’s federal criminal- justice system has become
as a result of the 9/11 attacks. We begin with a fundamental principle, one that
even the Post implicitly acknowledges:
Terrorism is, in fact, a federal criminal offense. Let
me repeat that: Terrorism is a crime under U.S. law.
Thus, it shouldn’t surprise anyone that suspected
terrorists have always been subject to the rules,
guarantees, and protections that relate to the federal
criminal-justice system. Grand-jury indictments, jury
trials in federal court, criminal-defense attorneys,
the presumption of innocence, the exclusion of
incompetent and irrelevant evidence, the right to
confront and cross-examine adverse witnesses, the
right to remain silent, the right to call favorable
witnesses, and so forth. So, what does the Post mean when it wonders
whether the Obama administration should have
considered treating Shahzad as an “enemy combatant”
instead of as a criminal defendant? The Post is referring to the alternative,
competing system of criminal justice that the Pentagon
established in the wake of the 9/11 attacks. It’s a
system that is totally unlike the federal court
system. Yes, there are still criminal prosecutions for
terrorism, but in the Pentagon’s system the defendant
is treated in an entirely different way. The Pentagon’s system, for example, encompasses the
power to waterboard and otherwise torture people who
the feds suspect are guilty of terrorism. The
defendant is presumed guilty and treated as such.
There is no right to a speedy trial, and defendants
can be held forever without a trial. If a trial is
ultimately held, the guilt or innocence of the accused
is determined by a kangaroo tribunal consisting of
military officials, not by regular Americans from the
community. At the trial, evidence acquired by torture
can be admitted against the accused. The defendant
does not have an absolute right to cross examine
witnesses, and hearsay evidence can be admitted
against him. In other words, ever since 9/11 the United States
has had two separate and distinct competing
criminal-justice systems, one that is governed by the
Constitution and the Bill of Rights, and the other
that is governed by brutal, arbitrary, and ad hoc
procedures, ones which, by the way, the Constitution
and the Bill of Rights were designed to prohibit. Obviously, it makes a world of difference which
system a person is subjected to. As the Post
editorial implies, that decision — which system to
employ against a person accused of terrorism — is
entirely arbitrary and ad hoc. Federal officials have
absolute and total discretion to make the call. There
are no set standards. Let’s assume that Shahzad did, in fact, try to set
off the Times Square bomb and that he did it with the
active participation of a partner. Under America’s
post-9/11 criminal justice system, the feds could
treat one of the partners as a criminal defendant and
the other one as an enemy combatant, notwithstanding
the fact that they allegedly committed the same act.
It would be difficult to find a better example of a
violation of equal treatment under law and the rule of
law than that. When the life and liberty of people
turns on the discretionary judgments of government
officials as to whether criminal defendants should be
accorded due process of law or kangaroo courts, that’s
not a system founded on justice but rather a system
that makes a mockery of justice. Where did the feds acquire this omnipotent
post-9/11 power to completely circumvent the
Constitution and the Bill of Rights in federal
criminal prosecutions through the arbitrary,
discretionary, and ad hoc power to label people
accused of terrorism as either criminal defendants or
as enemy combatants? They made it up. Out of whole cloth. They knew that
terrorism is a federal criminal. They knew that
terrorism is listed in the U.S. Code as a federal
criminal offense. They knew that accused terrorists,
including Ramzi Yousef, the terrorist who bombed the
World Trade Center in 1993, had always been prosecuted
as criminal defendants in U.S. District Court. But they also knew that the fear-laden crisis of
9/11 gave them an opportunity, the opportunity to make
up an entirely new and false doctrine, one that they
claimed now entitled them to call a federal crime
either a crime or an act of war, one that enabled them
to completely circumvent the procedural protections in
the Constitution and the Bill of Rights. That’s what they did with the federal crime of
terrorism. They didn’t repeal the U.S. Code provisions
on terrorism. Those still remain on the books, which
is why many suspected terrorists are still prosecuted
in federal court. What they did was say, “We now have
another option — the option to treat accused
terrorists as enemy combatants instead of criminal
defendants. We now wield the total and absolute power
make that call.” The Post is being disingenuous when it
states that “the Shahzad case is different because Mr.
Shahzad is an American citizen.” Different in what respect? Is the Post
suggesting that there should be one form of criminal
justice system — the constitutional one — for
Americans and another form for foreigners — the
military system? Never mind that such a dual criminal
justice system flies in the face of more than two
centuries of U.S. history, one in which all
persons, not just Americans, accused of federal
crimes are entitled to the same criminal-justice
system and to the protections of the Constitution and
the Bill of Rights. Moreover, Americans had best get used to the fact
that the feds now possess the power to treat American
citizens as enemy combatants. That’s what the Jose
Padilla case was all about. In other words, what they
did to Padilla when they were treating him as an enemy
combatant — indefinite incarceration, torture through
sensory deprivation and isolation, denial of due
process, presumption of guilt, and the like — they now
can do to all Americans. And this revolutionary transformation of criminal
justice, one in which the military now wields
omnipotent power over the citizenry, was effected
without even the semblance of a constitutional
amendment. It’s just another part and parcel of
America’s war on terrorism and the U.S. government’s
foreign policy of empire and intervention. Not only
are the American people being economically bankrupted
by that war and that foreign policy, they’re also
having their Constitution and Bill of Rights hijacked
and circumvented. Jacob Hornberger is founder and president of The
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