So, the FBI was prepared to indict U.S. Army scientist Bruce Ivins for terrorism before he committed suicide. The specific act of terrorism for which Ivins was to be indicted was employing weapons of mass destruction, to wit: anthrax, on American citizens on American soil.
Doesn’t that mean federal courts? Doesn’t that mean the Bill of Rights? Doesn’t that mean the presumption of innocence, right to counsel, right to be free from self-incrimination, protection from cruel and unusual punishments, right to bail, exclusion of evidence acquired by torture, coercion, or illegal searches, right to confront witnesses, right to summon witnesses, a public trial, and trial by jury?
Is that any way to treat an enemy combatant during time of war? Is that the way we treated German prisoners of war in World War II? Did the feds indict them too?
What gives? Haven’t the Bush administration and the Washington Post told us ad infinitum, ad nauseam that the courts are not equipped to handle terrorism cases? Isn’t that what Gitmo is all about? What better example of a terrorism case than the use of weapons of mass destruction against American citizens on American soil? What better example of an “enemy combatant” in the federal government’s “war on terrorism” than Bruce Ivins?
The FBI’s planned indictment of Ivins once again exposes the charade of the “enemy combatant” doctrine, the Pentagon’s kangaroo tribunals, and the so-called war on terrorism. As we have been arguing here at FFF ever since 9/11, terrorism is a federal crime, not an act of war. It is listed on the federal statute books as a federal crime. It was that way before 9/11 and it has remained that way after 9/11. That’s precisely why the FBI and the Justice Department were planning on securing a federal grand-jury indictment against Ivins.
What President Bush and the Pentagon did after the 9/11 attacks was assume dictatorial powers in the guise of waging war, which they called the “war on terrorism.” This included the omnipotent power to completely bypass the federal courts when it came to suspected terrorists. With the assumption of such power, the military could take anyone it wanted into custody simply by having the president designate the person as an “enemy combatant.” This included foreigners and Americans arrested both abroad and here within the United States. After all, in the war on terrorism the whole world is the battlefield, they told us, including the United States.
Never mind that the assumption of such dictatorial power was accomplished without even the semblance of a constitutional amendment. All that was important, they said, was that Bush was now wearing a commander in chief helmet in time of “war,” which, they said, gave him and his minions the omnipotent power to kidnap, arrest, torture, indefinitely imprison, and execute anyone they wanted anywhere in the world.
Could such power be extended to other criminal acts? Why not? Consider the violent attacks that drug lords are committing against the military, police, and populace in Mexico. Suppose the drug lords expand such violent attacks to the United States, embarking on a killing spree against DEA agents, federal judges, federal prosecutors, military personnel, local law-enforcement agents, and private citizens.
There is absolutely no reason that the president, the CIA, and the Pentagon could not extend the enemy-combatant doctrine that they’ve used in the “war on terrorism” to the “war on drugs.” That would give the president, the CIA, and the Pentagon the power not only to treat suspected terrorists as enemy combatants but also suspected drug dealers, perhaps even drug users. And the fact that “the terrorists” are being funded by sales of illicit drugs would undoubtedly be cited as another reason for expanding the dictatorial war on terrorism powers to the war on drugs.
But the fact is that the federal courts are well-equipped to handle terrorism cases as well as drug cases, murder cases, and kidnapping cases. That’s why the feds continue to indict people for such criminal offenses. That’s why they planned to indict suspected terrorist Bruce Ivins and to try him in federal district court.
Another important factor to consider is that Bush and the Pentagon now have the discretionary power to treat people in two completely different ways for the same offense: either by subjecting them to the kangaroo, show-trial treatment at Gitmo or the regular federal-court route that provides constitutional guarantees.
It would be difficult to find a more perfect example of a violation of the rule of law and the principle of equal treatment under law than this. For when government officials have the discretion to treat two people who have committed the same offense in two completely separate and distinct ways, that’s the essence of injustice.
The Jose Padilla case reflected the horror of this discretionary ad hoc power. For years, the feds treated Padilla as an enemy combatant in the war on terror, subjecting him to imprisonment in a military dungeon, isolation, torture, and the threat of indefinite detention. Then, after a few years of claiming that the federal courts were inadequate to handle terrorism cases, the feds willy-nilly changed their minds and decided to treat Padilla as a federal-court defendant. He was indicted, convicted, and sentenced in a federal court. If the appellate courts were to overturn Padilla’s conviction, the Pentagon wields the power to yank him back into custody as an enemy combatant.
Padilla is an American citizen, just as Bruce Ivins was. Under President Bush’s post-9/11 unilateral assumption of dictatorial power, the feds didn’t have to indict Bruce Ivins for terrorism. They could have treated him as an enemy combatant in the war on terrorism, just like they initially did to Jose Padilla. They can now do this to any American, including you. This is what passes for “freedom” in post-9/11 America.
Jacob Hornberger is founder and president of The Future of Freedom Foundation.