The Military Exception to the Bill of Rights
by Jacob G. Hornberger
Consider the following hypothetical. DEA agents in Columbus, Georgia, suspect that Joe Blow is selling cocaine and heroin to city youths. They’re sure he’s guilty but have been unable to come up with any evidence of his guilt. Under a formal policy established by the DEA, they take Joe into custody without a warrant, take him to a secret federal facility, keep him in solitary confinement for 3 years, and brutally torture him until he finally confesses to the crime. The federal grand jury issues a criminal indictment and the U.S. Attorney proceeds to prosecute the case. The prosecutor introduces Joe’s confession into evidence.
What would happen?
Under our constitutional system of justice, the federal judge would dismiss the case without even letting it reach the jury.
Under the rights and guarantees enumerated in the Fourth, Fifth, Sixth, and Eighth Amendments, our system of criminal justice guarantees the accused a speedy trial, and it does not permit federal law-enforcement officials to torture people into confessing to crimes. Since Joe Blow was denied a speedy trial owing to his 3 years in DEA custody, and since his confession was acquired illegally, the judge would summarily dismiss the charges.
Moreover, under our system of justice, Joe Blow would be able sue the DEA agents for what they did to him and recover damages from them.
Now, suppose the DEA agents instead approach the military commander at nearby Ft. Benning and tell him about their suspicions regarding Joe Blow. The commander responds, “Look, no problem. Why don’t I send an infantry platoon to take the man into custody? I’ll guarantee you that we will make him sing like a canary.” The military unit proceeds to Columbus, where they take Joe Blow into custody and bring him back to Ft. Benning, where they keep him in solitary confinement for 3 years and brutally torture him into confessing. At the end of the 3-year period, the military returns Joe to the DEA along with his written confession. The prosecutors secure a grand-jury indictment and proceed to prosecute Joe Blow.
What would be the result now?
Everything now would be different. Under our system, the judge would say that the military stands in a different position from the DEA. The judge would hold that under the Constitution the federal judiciary is precluded from interfering with operations of the military and the CIA, especially when their actions involve the waging of war, national security, or state secrets. The judge would hold that the three years that Joe Blow spent in military custody don’t count insofar as his right to speedy trial is concerned. The judge might or might not permit Joe Blow’s confession to be admitted into evidence, but it would definitely allow the prosecution to go forward.
What about the liability of the soldiers who did this to Joe Blow? The judge would summarily dismiss any suit for damages brought by Joe on the ground that the soldiers (and CIA agents) are immune from any such lawsuits, given their constitutional authority to wage war, protect national security, and maintain state secrets.
How do we know that that would happen?
Because that’s precisely what happened in the Jose Padilla case.
Now, one might respond, “But Jacob, drug dealing is a criminal offense, while terrorism is an act of war.”
Not so! Don’t forget, after all, that Padilla started out in the federal court system, was removed to military custody for 3 years, and then returned to the federal court system where he was indicted, prosecuted, and convicted of terrorism. The federal government’s criminal prosecution, conviction, and sentencing of Jose Padilla is proof positive — irrefutable, conclusive proof — that terrorism is a federal criminal offense, just like drug dealing is. Padilla’s three-year stay in federal military custody, where he was brutally tortured, was simply an interruption in his criminal prosecution.
Actually our drug-war hypothetical is not so farfetched. Keep in mind that while the U.S. military is prohibited from engaging in law-enforcement in the United States by posse comitatus, it is not prohibited from doing so in other countries. In Latin America, for example, both the U.S. military and the CIA play an active role in waging the war on drugs.
Additionally, in Egypt, the military dictatorship, a dictatorship that the U.S. military and the CIA have long supported and worked closely with, views the war on drugs in much the same way it views the war on terrorism. Thus, the same powers that the U.S. and Egyptian militaries employ in their war on terrorism — such as those employed against Jose Padilla — the Egyptian military also employs against suspected drug dealers.
According to U.S. federal judges, most of whom, as I stated in yesterday’s blog post, have buckled in the face of the military and the CIA in the same way that Chilean judges buckled during the military regime of Augusto Pinochet, an implicit provision of the Bill of Rights is the following: "None of the protections and guarantees provided to the people by the Fourth, Fifth, Sixth, and Eighth Amendments shall apply to the U.S. military and the CIA.”