The Back Door Way to Ignore the Bill of Rights

by Jacob G. Hornberger

Among the most shocking aspects of Barack Obama’s presidency so far has been his embrace of the power that George W. Bush assumed to incarcerate people suspected of terrorism for the rest of their lives, without a jury trial to determine whether they are in fact guilty of the offense. There is absolutely no reason why Obama and any future president cannot expand that power to other federal criminal offenses, including drug crimes and gun crimes.

Let’s keep in mind, after all, that terrorism is a federal criminal offense. It was a federal criminal offense before 9/11 and it continued to be one after 9/11.

Under America’s system of justice, people suspected of having committed a criminal offense are indicted by federal grand juries and tried in federal district court. Examples of criminal defendants who have been indicted and convicted of terrorism in federal court include Ramzi Yousef, Zacharias Moussaoui, and Jose Padilla.





One of the fundamental principles of a criminal trial is the presumption of innocence. In order to get a conviction, the government must overcome that presumption with sufficient competent evidence that convinces a jury beyond a reasonable doubt that the defendant is, in fact, guilty of the offense.

What was so revolutionary about what George W. Bush did was that he took a federal criminal offense and simply converted it into an illegal act of war, which he said gave the government the power, at its option, to incarcerate a suspected violator of the terrorism statutes for life, without the benefit of trial by jury to determine whether he really committed the offense.

Now, consider the war on drugs. Since the president has been permitted the power to declare terrorism an illegal act of war, thereby enabling him to treat suspected terrorists as illegal enemy combatants (or criminal defendants, at his option), there is absolutely no reason why he cannot do the same in the war on drugs or the war on guns (or any other federal criminal offense), especially given that many of the terrorists are using the drug trade to finance their terrorist operations and given that drug lords are using guns to commit their murders.

Each year, the drug lords kill far more people than the number of people that the terrorists are killing in the United States. The many thousands of people being killed every year in Mexico include Mexican law-enforcement agents, judges, and other government officials.

Most of the drug-war violence is along the U.S.-Mexico border. The possibility that the drug-war violence will spill over into the United States is causing U.S. officials to consider dispatching U.S. troops to the border to help civilian law enforcement fight the war on drugs. In fact, some state and local officials are now actively requesting the president to send U.S. troops to the border.

At the same time, law-enforcement officials are claiming that the one of the principal causes of drug-war violence is the ease by which people are able to purchase guns along the border. Already there are signs of a government crackdown on gun dealers as part of the war on guns.

Now, imagine that the drug lords begin wreaking violence on the U.S. side of the border, including killing sprees in which U.S. law-enforcement agents, judges, and other public officials are the predominate victims, as they are in Mexico.

With the power the president now wields to convert federal criminal offenses into illegal acts of war, there is now nothing to prevent Barack Obama from expanding such power to the war on drugs and the war on guns. That means, of course, that the U.S. government would then have the option of treating suspected drug-law violators and gun-law violators in the same was as suspected terrorists, subject to being incarcerated for life, without the benefit of a jury trial to determine whether they truly are guilty.

Thus, those who enthusiastically supported Bush’s assumption of this omnipotent power — the power to convert a federal criminal offense into an illegal act of war — might come to rue the day they did so, especially if Obama expands the principle to drug crimes and gun crimes.

Jacob Hornberger is founder and president of The Future of Freedom Foundation, publisher of Your Money or Your Life: Why We Must Abolish the Income Tax by Sheldon Richman.

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