Dictatorship Codified

by Jacob G. Hornberger
Dec. 01, 2011

A Washington Post op-ed by Democratic Senator Carl Levin and Republic Senator John McCain shows, once again, that the threat to the freedom and well-being of the American people comes from both liberals and conservatives, especially those within the government.

The op-ed was written in support of the 2012 defense [sic] authorization bill, which effectively authorizes the president to treat suspected terrorists either as illegal enemy combatants or as criminal defendants under the U.S. Code, at the option of the government. That, of course, entails the power of the president, through his military and CIA forces, to label people as terrorists, torture them, incarcerate them forever without trial, and even execute them after some sort of kangaroo military tribunal, such as those at Guantanamo Bay.

I probably should note that such power will not be limited to foreigners labeled as terrorists. It also encompasses Americans.

The bill has produced a ruckus in liberal, conservative, and libertarian circles. Critics are pointing out that such power is an inherent part of dictatorial regimes.

Consider, for example, the Egyptian military dictatorship. It possesses the same power over people as the power delegated to the president, the Pentagon, and the CIA in the defense authorization bill. The power delegated to the president, the military, and the CIA in the 2012 defense authorization bill is the same power that the Egyptian demonstrators have been demanding, without success, that the Egyptian military relinquish.

Or consider the Chinese communist dictatorship. Same power there too.

For that matter, consider the Nazi dictatorship. The Enabling Act, a temporary measure that was enacted as part of Hitler’s war on terrorism after the terrorist fire-bomb attack on the Reichstag building, enabled Hitler, his military, and the Gestapo to round people up, send them into concentration camps, torture them, and execute them.

There is one important thing, however, that we should keep in mind about the 2012 defense authorization bill, something that Levin and McCain point out in their op-ed: We’re already living in a country where the president, the military, and the CIA possess the omnipotent, dictatorial power that is granted to them in the bill. As Levin and McCain point out, the bill is simply codifying a legal situation that already exists.

That is what we have been pointing out here at The Future of Freedom Foundation ever since 9/11. When President Bush decreed that the 9/11 attacks gave him, the military, and the CIA the power to round up foreigners, torture them, detain them indefinitely, and even execute them, we opposed the assumption of such omnipotent powers not only because we believed it was wrong to exercise such powers against foreigners, but also because, we repeatedly emphasized, the power could also be wielded against Americans.

That was the logical outcome of the government’s reasoning, as we repeatedly emphasized. The United States is now involved in a “war on terrorism,” the president decreed. The war was a global one and, therefore, one in which the United States was part of the battlefield. The war would be perpetual. To keep Americans safe, the president, the military, and the CIA would have the task of finding terrorists anywhere in the world, including suspected American terrorists on American soil, and the power to treat them as illegal enemy combatants. It was a cleverly successful way to circumvent almost 250 years of Bill of Rights protection against dictatorial power.

That’s what the Jose Padilla case was all about. It confirmed the president’s dictatorial power to seize Americans, torture them with impunity, detain them forever, and even execute them as part of the “war on terrorism.” Padilla was an American. Once the federal court of appeals upheld the government power to do all that to Padilla, the government acquired the power to do it to all Americans.

It has been a wholesale legal revolution, one bigger and more ominous than even the New Deal’s revolutionary transformation of America’s economic system from free market to socialism.

Prior to 9/11, the Bill of Rights prohibited the government from depriving any person, including foreigners, of life, liberty, or property without due process of law. After 9/11, the Bill of Rights remained the same, but the president assumed, by decree, the power to ignore the Bill of Rights with respect to people labeled as terrorists, just as he chose to ignore the constitutional provision relating to a declaration of war from Congress.

What the members of Congress should be doing is enacting a law that removes such tyrannical powers from the president, the Pentagon, and the CIA rather than further entrenching them with codification.

What Levin and McCain are doing is precisely what Mubarak’s legislature did and what the Reichstag did — delegate such dictatorial powers to the president, the military, and the CIA by legislative enactment. Their attempt to codify and enshrine such dictatorial powers into law ten years after 9/11, rather than expressly prohibit them by legislative enactment, demonstrates, once again, that the major threat to the freedom and well-being of the American people comes not from terrorists, communists, drug dealers, or illegal aliens. It comes from the federal government, including the president, the military, the CIA, and statist members of Congress.
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Jacob Hornberger is founder and president of the Future of Freedom Foundation.