Seizure, Detention, Torture, and Assassination
by Jacob G. Hornberger
In today’s blog, I thought I would share with you a deeply insightful quote by Alan Barth (1906-1979), who served on the Washington Post’s editorial board for 30 years. The quote is from his book The Rights of Free Men, which was published posthumously in 1984.
As you read the quote, keep in mind that we now live in a country in which the government — specifically the president and his military — now wields the authority to barge down people’s door to seize them, cart them away to a concentration camp or military dungeon for indefinite detention, torture them, or even execute them.
We also now live in a country in which the government — specifically the president and the CIA — now wields the authority to assassinate people, including Americans.
What are the judicial prerequisites for the exercise of such powers? None. All that is needed is the president’s determination that the target of the arrest is a terrorist.
Even in habeas corpus proceedings (which obviously don’t apply when the person has been assassinated), the courts defer to the determination of the president, the CIA, and the military because the courts have bought into the government’s “national security” and “we’re at war” rationales for the wielding of such omnipotent, “emergency” powers.
How did the president, the Pentagon, and the CIA acquire these extraordinary powers, powers that enable them to avoid the due process guarantees in the Bill of Rights? No, not by constitutional amendment or even by congressional enactment. After the 9/11 attacks, the president simply decreed that he, the Pentagon, and the CIA now wielded the emergency power to treat the federal crime of terrorism as either a crime or an illegal act of war, at their option.
Barth reminds us that it was this type of direct power — the arbitrary power to take people into custody without any judicial process — that formed the basis for Magna Carta and other battles for civil liberty over the ages.
Before you read the main quote, consider this preliminary quote by Barth, which is from his book The Loyalty of Free Men. Although he refers to communism, his point applies equally well to terrorism: “Nothing that the agents of Communism have done or can do to this country is so dangerous to the United States as what they have induced us to do to ourselves.”