Jacob G. Hornberger |
Notwithstanding President Trump’s many faults, failures, and foibles, let’s give credit where credit is due. Last week a suspected member of Al Qaeda named Ali Charaf Damache was extradited to the United States to stand trial. Trump had a choice: He could have had Damache sent into the Pentagon-CIA kangaroo “justice” system in Cuba or to the federal court system that was established under the U.S. Constitution. Trump chose the latter.
Trump’s position
Trump’s stance was in direct contradiction to that taken by Republicans generally, including his embattled attorney general, Jeff Sessions. As the New York Times pointed out in an article about the Damache extradition, Sessions’ position is that “terrorists did not deserve the same legal rights as common criminals.”
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It is amazing and disgraceful that any lawyer would ever take such a ridiculous position. It’s even more appalling that it’s held by the nation’s attorney general.
Sessions assume away the purpose of a trial. That is, how do we know that a particular person is, in fact, a “terrorist” if he hasn’t been convicted of any terrorist act? That’s the purpose of a trial — to determine whether a person is, in fact, a terrorist.
Sessions’ position amounts to Trust the Pentagon, the CIA, and the FBI. If they are convinced that a person is guilty of terrorism, then end of story — that person is to be considered a terrorist and should be treated accordingly. That’s the same position taken in countries like North Korea, China, and Cuba.
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Camp Gitmo
The Pentagon’s and CIA’s “judicial” system in Cuba is a kangaroo proceeding that will inevitably confirm the Pentagon’s and CIA’s finding of guilt. The idea is that in the Gitmo system, there is no reasonable chance of an acquittal. But since the accused is guilty anyway, they feel, there shouldn’t be any chance of acquittal.
Why do Sessions and other conservatives want to send a “terrorist” to Guantanamo Bay instead of through the constitutional judicial system? Because the Pentagon’s and CIA’s “judicial” system in Cuba is a kangaroo proceeding that will inevitably confirm the Pentagon’s and CIA’s finding of guilt. The idea is that in the Gitmo system, there is no reasonable chance of an acquittal. But since the accused is guilty anyway, they feel, there shouldn’t be any chance of acquittal. The Pentagon’s and CIA’s “judicial” system amounts to wrapping punishment within a veneer of legitimacy by making it look like the person has received a “trial.”
Such procedures closely mirror those on the communist side of Cuba and, for that matter, in North Korea. Military tribunals decide guilt, which means a guilty verdict is virtually assured, especially if the commander-in-chief (i.e., the boss of those on the tribunal) demands it. Hearsay evidence is permitted. So is evidence acquired by torture? The accused is presumed guilty and treated accordingly.
The procedures in the Pentagon’s and CIA’s “judicial” system are all designed to ensure a verdict of guilt. In fact, such procedures closely mirror those on the communist side of Cuba and, for that matter, in North Korea. Military tribunals decide guilt, which means a guilty verdict is virtually assured, especially if the commander-in-chief (i.e., the boss of those on the tribunal) demands it. Hearsay evidence is permitted. So is evidence acquired by torture? The accused is presumed guilty and treated accordingly. There is no speedy trial requirement — suspects can be incarcerated for 10-20 years and longer without even being accorded the benefit of a kangaroo trial. No reasonable possibility of acquittal. It’s like that in North Korea and Cuba (communist side) as well.
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Remembering the old ways
Trial by jury is guaranteed. No hearsay evidence. No torture. A presumption of innocence. A speedy trial requirement. An independent judge. And the possibility of acquittal
That’s not the way our American ancestors set up our constitutional judicial system. Trial by jury is guaranteed. No hearsay evidence. No torture. A presumption of innocence. A speedy trial requirement. An independent judge. And the possibility of acquittal, especially if the government is unable to prove the person’s guilt beyond a reasonable doubt.
After the 9/11 attacks, the Pentagon and the CIA, operating with the support of President George W. Bush, decided that they would establish a model “judicial” center in Cuba. Why Cuba? Because they wanted it to be free of any interference by the U.S. federal courts. It was to be a conservative dream — a Constitution-free zone — that is, one in which Pentagon and the CIA would not have to concern themselves with what they have long considered “constitutional technicalities
How did America end up with a bifurcated judicial system, one in which U.S. officials wield the power to shunt terrorist suspects into two different systems, each of which has totally different procedures and possible outcomes? After the 9/11 attacks, the Pentagon and the CIA, operating with the support of President George W. Bush, decided that they would establish a model “judicial” center in Cuba. Why Cuba? Because they wanted it to be free of any interference by the U.S. federal courts. It was to be a conservative dream — a Constitution-free zone — that is, one in which Pentagon and the CIA would not have to concern themselves with what they have long considered “constitutional technicalities — that is, principles that might enable a “guilty” person to go free.
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In other words, they wanted a judicial system that was exactly opposite to the one that our American ancestors established under the Constitution.
The new bifurcated system
The president and the national-security establishment wield the discretionary authority to decide which track a criminal suspect is going to be sent down.
And so we now have a bifurcated system that is an absolute model of tyranny — not only in how the Pentagon and CIA run their system in Cuba but also by the mere fact that the president and the national-security establishment wield the discretionary authority to decide which track a criminal suspect is going to be sent down.
Kudos to President Trump on selecting the right track in the Demache case —the American track. Shame on him for refusing to shut down the other track — the track that is consistent with “judicial” principles found in communist and totalitarian regimes.
Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. 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. This article was first published in The Future of Freedom Foundation and is republished here with permission. The views expressed in this article are the author’s own and do not necessarily reflect Global Village Space’s editorial policy.