In Search Of Constitution-Free Zones

By Jacob G. Hornberger
Hornberger’s Blog Index
Monday, April 13, 2009
Courtesy Of The Future Of Freedom Foundation

To gain a good perspective on how the Pentagon and the CIA view the Constitution, all one has to do is consider what they’ve done with their prison camps in Cuba and Afghanistan.

Keep in mind, first of all, what the Constitution is. It is the supreme law of the land that we the people have imposed on federal officials, including those people serving in the military and paramilitary forces of the federal government.

While our American ancestors understood the need for a federal government, they also understood that that same government would constitute the biggest threat to their freedom and well-being. The way they dealt with that threat was to use the Constitution and the Bill of Rights to impose severe limits on the powers of federal officials, including those in the military.

So, what did the Pentagon do? Loyally following the orders of the president, it established a prison camp in Cuba as part of its “war on terrorism.” Why Cuba? Because the feeling was that a prison camp in Cuba would be beyond the reach of the U.S. Constitution and the federal-court system that the Constitution established.

In other words, the Pentagon, the institution that prides itself on taking an oath to “support and defend” the Constitution, established a prison camp that Pentagon officials hoped and intended would a Constitution-free zone. The reason they had that hope and intention was so that they could do whatever they wanted to prisoners without having to concern themselves with the higher law that the American people had imposed on them. That would enable the Pentagon to engage in such acts as infliction of cruel and unusual punishments (e.g., torture and sex abuse), denial of due process, denial of right to counsel, denial of habeas corpus, and violation of other principles found in the Constitution and the Bill of Rights.

The U.S. Supreme Court, however, dashed the Pentagon’s hopes when it held that the Gitmo prison camp was subject to the constraints of the U.S. Constitution and that Gitmo prisoners had the right to test their detention through the writ of habeas corpus, the ancient legal process whose roots stretched all the way back to Magna Carta.

Now, at that point you would ordinarily think that that would have settled the matter. That is, even though the Pentagon set up its Cuban camp for the precise purpose of avoiding the Constitution, once the Supreme Court assumed jurisdiction, wouldn’t you think that under our system of government — one in which the military and paramilitary is supposed to be subordinate to the civilian authority — the military would simply submit to the Supreme Court’s ruling? After all, don’t forget: the Pentagon and the CIA have taken oaths to support and defend the Constitution.

Alas, it was not to be. Rather than submit to the ruling of the Supreme Court, the Pentagon and the CIA instead embarked on a course of action specifically designed to circumvent the Court’s ruling and the Court’s jurisdiction.

Here’s how they did it. As they continued kidnapping people in different parts of the world, instead of imprisoning them at Gitmo they simply imprisoned them at the Pentagon’s Bagram prison camp in Afghanistan. Why Afghanistan? Because then they could tell the federal courts, “You don’t have jurisdiction to review our actions here because this is a theater of war, and you don’t have the power to interfere with our wartime operations in a theater of war.”

A clever trick, right? Unfortunately for the Pentagon and the CIA, however, a D.C. federal judge didn’t buy it. Piercing through the legal sham, he held that detainees kidnapped and deposited at the Bagram prison camp have the same right of habeas corpus to test their detention as the prisoners at Guantanamo.

Unfortunately, under the direction of President Obama, U.S. officials are appealing the decision, arguing the same thing that President Bush did with respect to Guantanamo: that the Bagram prison camp is a Constitution-free zone and, therefore, free of any control by the U.S. federal courts.

Oh well, so much for Obama’s hope-and-change hype that helped him get elected.

Our American ancestors in 1787 understood that the federal government would inevitably attract power-lusting people who hated constitutional restraints on power. They also knew what such power-lusting officials would do in the absence of a Constitution and a Bill of Rights. How wise and prescient our ancestors were!

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Jacob Hornberger is founder and president of The Future of Freedom Foundation.