Martial Law and the War on Terrorism
by James Bovard, July 28, 2009

The New York Times reported last week that the Bush administration considered sending in the U.S. military to arrest the so-called Lackawanna Six in 2002. Ironically, one of the worst prosecutorial overreaches by the Justice Department in the war on terror almost resulted in a temporary period of martial law.

The Lackawanna Six was a group of half-a-dozen Yemeni-Americans from a Buffalo suburb who traveled to Pakistan and Afghanistan in the spring and summer of 2001 and attended an al-Qaeda training camp. Some members of the group asserted that they fled the camp after they heard appeals for violence against America.

After the six were arrested by the FBI and local police in September 2002, the Justice Department announced that it had "identified, investigated and disrupted an al-Qaeda-trained, terrorist cell on American soil." President Bush hyped the arrests of an “al-Qaeda cell” in Buffalo in his State of the Union address a few months later. While the president, the Justice Department, and legions of federal officials speaking anonymously to the media touted the Lackawanna Six as terrorists, the feds never dared make such a suggestion in court. Salon noted that “prosecutors never offered evidence that the Lackawanna defendants intended to commit an act of terrorism.” A secret FBI report in early 2005 admitted: "To date, we have not identified any true 'sleeper' agents in the U.S." nor any “evidence of concealed cells or networks acting in the homeland as sleepers."

But the feds did “persuade” the defendants to plead guilty to “material support of terrorism” — an amorphous charge that could mean something as simple as paying for their food at the camp. The feds coerced the plea bargain by threatening to label the men “enemy combatants” and send them to Guantanamo — and to charge them with treason, for which they could be executed. Neal Sonnett, chairman of the American Bar Association's Task Force on Treatment of Enemy Combatants, observed: "The [Lackawanna] defendants believed that if they didn't plead guilty, they'd end up in a black hole forever. There's little difference between beating someone over the head and making a threat like that."

Georgetown University law professor David Cole commented: "It's the first time in American history where people are going to prison for going to a training camp.” Virginia lawyer and human rights activist Elaine Cassel commented: “The idea is, 'Let's go out and arrest people before they actually commit a crime, or even think of a crime.'" The Bush team considered sending in the military in part because of the lack of evidence.. The New York Times noted that the Justice department was concerned “that there might not be enough evidence to arrest and successfully prosecute the suspects in Lackawanna.” Vice President Cheney reportedly “argued that the administration would need a lower threshold of evidence to declare them enemy combatants and keep them in military custody.”

In other words, the idea was that it would require less evidence to totally nullify all of a person’s rights (including the “right” not to be tortured) then to arrest him on a felony charge. This judicial philosophy keeps getting stranger and stranger.

Some Pentagon officials supported Cheney’s proposal to send in the troops to grab the Lackawanna Six. Other administration officials objected, and Bush eventually decided to avoid the overt appearance of martial law for this roundup.

Cheney was invoking a secret memo from Justice Department Office of Legal Counsel’s John Yoo, who had written: “The president has ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States.”

Since some of Yoo’s memos leaked out in recent years, we have heard that they are irrelevant because they were only academic-type posturing. But the New York Times article makes it clear that Cheney and others wanted to seize new powers and fundamentally change the nature of the United States.

This case illustrates how there are no idle pro-Leviathan legal errors. Instead, any such error is like a ticking time bomb — waiting to be exploded under the people’s rights and liberties.

But apologists for Bush would insist that it would not have been a dictatorship because one lawyer in the Justice Department assured the vice president that the White House was entitled to such power. Supposedly, it only takes one weasel lawyer to nullify all the constitutional checks-and-balances accumulated over centuries. Some Bush administration officials viewed using the military for the Lackawanna arrests as “testing the Constitution.” In reality, it would have tested how much dictatorial power Americans would permit the Bush team to seize. And the mainstream media might have raised scant protest. As one wag quipped online: “If the tanks rolled down the streets on the same day the American Idol winner was named, you'd never even hear about the tanks.”

James Bovard is the author of Attention Deficit Democracy [2006] as well as The Bush Betrayal [2004], Lost Rights [1994] and Terrorism and Tyranny: Trampling Freedom, Justice and Peace to Rid the World of Evil (Palgrave-Macmillan, September 2003) and serves as a policy advisor for The Future of Freedom Foundation. Send him email.

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The New York Time’s Failure of Understanding
by Jacob G. Hornberger

In a July 29 editorial entitled “The Military Is Not the Police,” the New York Times stated, “It was disturbing to learn the other day just how close the last administration came to violating laws barring the military from engaging in law enforcement when President George W. Bush considered sending troops into a Buffalo suburb in 2002 to arrest terrorism suspects…. More needs to be done to ensure that the military is not illegally deployed in this country.”

Unfortunately, the Times fails to understand the critical point: After 9/11 the president acquired the power to treat terrorism as either an act of war or a criminal offense, at his option.

Thus, the likely reason the president ended up using law-enforcement personnel to arrest the Lackawanna Six was because in this particular case, he was opting to treat them as criminal defendants.

But what the Times obviously doesn’t get is that if the president had chosen to treat the Lackawanna Six as enemy combatants in the global war on terrorism, then he would have had the authority to send the army to attack their position, kill them, take the survivors into military custody, whisk them away to a military dungeon, and keep them incarcerated until the end of the war. That’s the way war works!

In World War II, if Japanese troops had invaded California wouldn’t the president have had the authority to send the military to fight and kill them? Of course he would have. Well, that’s precisely why President Bush claimed the legal authority to send the military to attack, kill, or seize the Lackawanna Six. Let’s not forget, after all, that in the war on terrorism, the entire world is a battlefield, including the United States.

The Times writes: “The Posse Comitatus Act of 1878 generally prohibits the military from law enforcement activities within the United States. If armed officers are going to knock on Americans’ doors, or arrest them in the streets, they should answer to civilian authorities.”

Again, what the Times misses is that with the adoption of the war-on-terrorism paradigm after 9/11, the Posse Comitatus Act became irrelevant insofar as terrorism cases are concerned, at least when the president opts to treat a particular act of terrorism as an act of war rather than a criminal offense.

The same holds true for the Bill of Rights. Although there has never been a constitutional amendment prohibiting its application in terrorism cases, it is no longer applicable in those terrorism cases where the president has opted to treat the suspected terrorist as an enemy combatant rather than a criminal defendant.

The discomforting fact — one that even the editorial board at the New York Times is obviously having difficulty confronting — is that the president now wields the authority to send the military into any community in America and take suspected terrorists into custody and treat them accordingly, once he opts to treat them as enemy combatants rather than criminal defendants. If the president had chosen this route for the Lackawanna Six, he would not have been violating the law, as the Times claims, but instead exercising his post-9/11 constitutional authority as commander in chief to wage war.

Of course, there is only one solution to this nonsense. The solution lies in the recognition that terrorism is a crime, not an act of war, and in the nullification of the president’s post-9/11 discretionary power to treat terrorism as either one.

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

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Waging the War on Terrorism on American Soil
by Jacob G. Hornberger

A logical consequence of having permitted the Bush administration to treat terrorism as either an act of war or a criminal offense, came to the forefront last week when the New York Times revealed that top administration officials were considering deploying troops here in the United States to take suspected terrorists into custody as “enemy combatants.” The suspected terrorists were part of a group that came to be known as the Lackawanna Six.

Even though Bush ultimately decided against the move, instead relying on the FBI to handle the matter, the fact that it was even being considered reveals the revolutionary change in our structure of government as a result of the so-called war on terrorism.

Terrorism is a federal criminal offense. It is denominated as such in the federal criminal code. That’s why suspected terrorists have been indicted by federal grand juries and tried in federal district court. These have included Zacharias Moussaoui, Timothy McVeigh, Ramzi Yousef, Jose Padilla, and many others.

So, how did it come to be that the Bush administration even considered using military troops to arrest people here in the United States suspected of terrorism? Isn’t that the type of thing that occurs in places like Latin America, Burma, and China? Doesn’t the United States use the cops, not the military, to enforce criminal laws?

The answer lies in the revolutionary action that Bush administration officials took in the wake of the 9/11 attacks. They simply declared that from that day forward, U.S. officials would have the option of treating this particular federal criminal offense — terrorism — as either a federal crime or as an act of war, at their option.

It is impossible to overstate the difference between how a person is treated, depending on whether federal officials decide to treat him as suspected criminal or as an enemy combatant in the war on terrorism.

If he’s treated as a criminal defendant, he is accorded all the protections of the Constitution and the Bill of Rights — habeas corpus, grand jury indictment, protection from unreasonable searches and seizures and coerced confessions, right to counsel, trial by jury, due process of law, and protection from cruel and unusual punishments.

If U.S. officials, however, opt to treat him as an enemy combatant, their position has been that he is entitled to none of those protections. After all, they tell us, we are at war, where constitutional niceties don’t apply. Thus, those suspected terrorists who have the bad fortune of being sent down the enemy combatant road are subject to military custody, Guantanamo, torture, rendition, kangaroo tribunals, and indefinite detention, even in the unlikely event they are acquitted.

And it’s because of the power that George W. Bush was permitted to exercise in the environment of fear following the 9/11 attacks — the power to unilaterally declare that a federal criminal offense — terrorism — was now also an illegal act of war.

Given that declaration, how can it surprise anyone that Bush administration officials contemplated deploying U.S. troops to take suspected terrorists into custody here in the United States? Isn’t it the job of the military to wage war?

Let’s not forget, after all, that according to the war-on-terrorism paradigm, the entire world is a battlefield. Not just Iraq, Afghanistan, Yemen, and Pakistan. The entire world also includes the United States.

While the Bush administration decided against using the troops to take the Lackawanna Six people into custody, the discomforting fact is that he didn’t have to go that route. Under the war-on-terrorism paradigm that now controls the United States — a paradigm that permits U.S. officials to treat terrorism as an act of war — Bush could easily have gone the other way, and the troops would have loyally obeyed his orders.

All that is what has come with the power to treat what has historically been a federal criminal offense as an illegal act of war, at the option of federal officials. The federal power to send the military sweeping across our land to investigate and arrest suspected terrorists is now as much a part of American life as the military power to arrest, torture, and indefinitely detain American citizens as illegal enemy combatants in the war on terrorism.

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