Inflicting the Death Penalty Before Trial

by Jacob G. Hornberger
Apr. 15, 2015

The case of Mohanad Mahmoud Al Farekh is a perfect example of how the national-security state apparatus that was grafted onto our federal governmental structure as part of the Cold War has revolutionized America's governmental system.

Farekh is an American citizen. Two years ago, the Pentagon and the CIA -- the two principal components of the national-security state branch of the federal government -- were urging President Obama to authorize an assassination of Farekh. Apparently the request was controversial simply because the intended victim of the hit was an American.

Now, one might say, "Well, Jacob, what's wrong with the national-security state's assassination of an American? Haven't you heard of the war on terrorism? In war, it's okay to kill the enemy. And if the CIA and the Pentagon say that an American citizen is an enemy combatant, who are we to question that determination?"

Well, except for one big thing. Guess where Farekh is today. According to a front-page article in last Sunday's New York Times, he is in New York City awaiting trial in U.S. District Court! What's the charge? You guessed it: terrorism.

That is precisely what I have been emphasizing ever since the 9/11 attacks. Terrorism is a federal criminal offense, not an act of war. It is listed in the U.S. Code as a federal criminal offense. That, of course, is confirmed by the fact that federal officials are prosecuting Farekh in federal district court. At the risk of belaboring the obvious, if terrorism was an act of war, Farekh would be held as a prisoner of war, not being prosecuted for a criminal offense in federal district court.

In a federal prosecution for terrorism, a person faces the possibility of being sentenced to serve time in a federal penitentiary or, in certain cases, even receiving the death penalty. That's certainly the case in the current criminal prosecution of the Boston bomber, Dzhokhar Tsarnaev -- he's facing the death penalty or a long jail sentence for his federal criminal offenses.

Except for one big thing about criminal prosecutions: Before imposing the death penalty or a long jail sentence, the government must first convince a jury that the person is guilty. The government's burden of proof is not an easy one to meet -- beyond a reasonable doubt. The defendant is presumed innocent. He's got the right to have a lawyer defend him. He's got the right to confront witnesses and cross examine them. He has to right to testify on his own behalf. He has the right of trial by jury. If the jury isn't convinced of guilty, the defendant walks out free. That's what the Fourth, Fifth, Sixth, and Eighth Amendments to the U.S. Constitution are all about.

Now, notice something important here: The CIA and the Pentagon were urging that the death penalty be imposed on Farekh "¦ without any trial whatsoever and simply on the word of the CIA and the Pentagon.

Notice something else of importance here: In post-9/11 America, while President Obama decided against authorizing the hit, he had the legal authority to go the other way. He could have ordered the national-security branch of the government to go ahead and assassinate Farekh.

What if Farekh turned out to be innocent? Could his relatives have recovered damages in a wrongful death action?

Nope. That's because the judicial branch of the federal government has erected a wall of immunity around the national-security branch of the government. No matter what the CIA or the Pentagon do to other people -- assassinate, execute, kidnap, or rape -- as long as it's done as part of a "national security" operation, the federal judiciary will summarily grant the government’s motion to dismiss the lawsuit. The national-security branch of the federal government is just too powerful for the judicial branch to question or challenge its "national-security" operations.

At the risk of belaboring the obvious, that means that Americans now live under a regime that has the omnipotent authority to kill anyone it wants, with impunity and immunity, including American citizens.

At the risk of further belaboring the obvious, that type of authority is inherent to totalitarian regimes, not free societies.

It also is worth mentioning that it's the U.S. government's foreign policy of invasions, occupations, interventions, partnerships with dictatorial regimes, torture, rendition, and assassinations -- operations that are carried out by the national-security branch of the government -- that has given rise to the anger and hatred that has motivated people to engage in anti-American terrorism. The government then uses that threat of terrorism to justify the assumption of the extraordinary power to assassinate people, including its own citizens, under the guise of waging a "war on terrorism."

The Farekh case shows how the adding of a national-security state as a fourth branch of the federal government fundamentally transformed America's governmental system, especially when combined with a foreign policy of interventionism. The CIA and the Pentagon, in combination with the executive branch of the federal government, now wield the supreme authority to impose the death penalty on anyone, including Americans, before trial.

That kind of totalitarian power was obviously not what the Framers had in mind when they called the federal government into existence with the Constitution and certainly not what our American ancestors had in mind when they demanded the Bill of Rights. The totalitarian power to inflict the death penalty on people, including a government's own citizenry, before a criminal conviction is as far from a free society as a nation can get.
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Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News' Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano's show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.