The Tyrannical Power to Kidnap and Torture

by Jacob G. Hornberger
May. 23, 2011

The U.S. Supreme Court has let stand an appellate court ruling that immunizes agents of the federal government who kidnap people and deliver them into the clutches of foreign dictators for the purpose of torture. The case is Mohamed v. Jeppesen Dataplan Inc.

The appellate court’s rationale for summarily dismissing the suit brought by five kidnap victims who were brutally tortured? The state-secrecy doctrine, a doctrine that the Supreme Court, not Congress, created, one that permits the government to have lawsuits against its agents dismissed based on the simple claim that “national security” would be threatened by the release of secret information surrounding the kidnapping, rendition, and torture of the plaintiffs.

That’s where we are in America today. We now live under a government that wields the omnipotent power to arbitrarily seize people without a warrant, put them on a plane, and send him to some U.S.-supported dictator to be tortured. And the victims are precluded from suing for what was done to them because national security will supposedly be threatened if people find out what exactly was done to the victims.

One of the five plaintiffs in the case, Binyam Mohamed, was sent to Morocco, whose government torture goons cut his penis with a scalpel and then poured a hot stinging liquid into the wound. Nice! But Mohamed can’t sue because we’ve got to keep these things secret. Hey, national security is at stake! We’ve got to be kept safe! Just think: If the terrorists were to find out all the details on how Mohamed was tortured, that would enable them to come to America and invade and occupy our country.

What will U.S. officials say if one of those five plaintiffs, having been denied access to the courts, decides to exact revenge with a terrorist strike? They’ll say what they always say, “It’s not because we kidnapped and tortured him and it’s not because we closed the courthouse doors to him. It’s all because he hates America for its freedom and values.”

Given the immunity that the courts have now extended to the perpetrators of these crimes, their power to kidnap, rendition, and torture people is now as omnipotent as the powers being wielded by the Middle East tyrants who are ever-ready to torture people for their benefactor and partner, the U.S. government.

Why did the Supreme Court refuse to take up the matter? My hunch is that the Court knows that the president wouldn’t comply with an adverse ruling anyway. After all, since the president freely ignores the Constitution and congressional laws in foreign affairs with impunity (e.g., declaration of law requirement and the War Powers Act), the chance that the president would comply with a judicial ruling that would interfere with his power to kidnap and torture people as part of the much-vaunted “war on terrorism” is nil.
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Jacob Hornberger is founder and president of the Future of Freedom Foundation.