March 02, 2004

A federal judge in Virginia, Leonie M. Brinkema (the same judge presiding in the Zacarias Moussaoui case), recently dismissed a terrorism case after federal prosecutors had presented all their evidence in a court of law. The reason for the judge’s decision? Insufficient evidence of guilt.

The acquittal comes on the heels of a terrorism case brought in federal district court in Detroit, where the feds were again convinced that the people they were prosecuting were terrorists. After hearing all the government’s evidence presented in the case, however, a Detroit jury acquitted two of the defendants. Meanwhile, the U.S. Supreme Court has agreed to decide the case of Jose Padilla, an American citizen who has been held by U.S. military officials in a military brig located inside the United States, where they’ve denied him due process of law, habeas corpus, a jury trial, and access to the federal court system for some two years.

The Supreme Court has also agreed to decide the case of Yaser Hamdi, an American citizen whom U.S. military officials took into custody during their invasion of Afghanistan two years ago and whom they have also been holding in a military brig inside the United States, denying him the same rights that they have been denying Padilla.

The Pentagon also recently announced the release of several more terrorist suspects from its military base at Guantanamo, Cuba, after imprisoning them for some two years without benefit of counsel, trial, due process of law, and habeas corpus.

Much to the surprise and chagrin of U.S. military officials, the Supreme Court has also agreed to decide the constitutionality of the Pentagon’s Guantanamo actions.

Question: If acts of terrorism are acts of war rather than criminal acts, as U.S. government officials maintain, empowering the Pentagon to treat suspected terrorists, Americans and foreigners alike, as "enemy combatants," denying them rights that stretch all the way back to Magna Carta, then how do the feds explain their prosecution of accused terrorists in federal district courts in Virginia and Michigan?

Indeed, why did the feds use federal courts to prosecute:

* Zacarias Moussaoui (the accused "20th hijacker" in the September 11 terrorist attacks, which federal officials have said was an act of war rather than a criminal act);

* Ramzi Yousef (the terrorist who attacked the World Trade Center in 1993, which presumably the feds also considered an act of war);

* John Walker Lindh (the "American Taliban" who was captured in Afghanistan);

* Timothy McVeigh (the Oklahoma City bomber terrorist); and Ted Kaczynski (the Unabomber terrorist)?

In a nation that prides itself for operating under the "rule of law," how can such an ad hoc, arbitrary process — a process by which some accused terrorists are turned over to the Pentagon for punishment and others are turned over to the U.S. criminal-justice system for determination of guilt and punishment — be justified?

Like it or not, the rights and freedoms of the American people turn on how the Supreme Court decides the Padilla, Hamdi, and Guantanamo cases. If the Supreme Court rules in favor of the Pentagon, then U.S. military officials will have the same omnipotent power that the military wielded in such countries as Argentina and Chile during their "wars on terrorism." That means that the Pentagon will have the unrestricted power to take any American it wants into custody, accuse him of being a terrorist and an "illegal combatant," and "disappear" him to Cuba for punishment, including execution — or "rendition" him to a foreign country for torture, as U.S. officials recently did to a man they sent to Syria for that purpose.

Given the overwhelming power that Americans have vested in the military-industrial complex, and given the propensity of the U.S. Congress to rubber-stamp actions of the Pentagon, there will be nothing the American people will be able to do to stop this deadly and destructive military process. That’s why, if the American people value their freedom, they had better hope that the Supreme Court rules in favor of freedom and against the Pentagon.

Mr. Hornberger is founder and president of The Future of Freedom Foundation (www.fff.org).

Sheldon Richman is senior fellow at The Future of Freedom Foundation in Fairfax, Va., author of Tethered Citizens: Time to Repeal the Welfare State, and editor of The Freeman magazine.

The Future of Freedom Foundation.

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