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Given all the glorification being bestowed on three U.S. senators for displaying “principle” in standing against President Bush’s plan to amend the Geneva Convention to permit torture of det
by Jacob G. Hornberger, September 27, 2006

Given all the glorification being bestowed on three U.S. senators for displaying “principle” in standing against President Bush’s plan to amend the Geneva Convention to permit torture of detainees, followed by their quick compromise abandoning any semblance of principle, it is easy to lose sight of something much bigger: The military tribunals that the president and the Congress are set to approve will constitute the most radical, dangerous, and disgraceful transformation in the U.S. criminal-justice system since our nation’s inception.
To prevent abuse of power, the U.S. Constitution divided power between three branches of government. The legislative branch would have the power to enact the laws, the executive branch would enforce the laws, and the judicial branch would interpret the laws.
To limit the abuse of power in criminal prosecutions and to ensure that innocent people were not convicted and punished, our American ancestors deliberately set up a series of legal obstacles and roadblocks within the federal criminal-justice system, many of which stretched back centuries into English jurisprudence.
If a person were being held without charges, he could file a petition for a writ of habeas corpus, which would force the person detaining him to appear before an independent federal judge to show cause why the person shouldn’t be released.
If the executive branch had reason to believe that someone had committed a crime, it could not prosecute without first securing an indictment from a grand jury.
Any person accused of a crime was guaranteed such procedural rights as right to counsel, the right to confront witnesses against him, the right to a speedy and public trial, the right to due process of law, the right to a jury trial, the right to reasonable bail, and the right to be free of cruel and unusual punishments.
If evidence has been acquired by the authorities in violation of the reasonable search requirement in the Bill of Rights or the right against self-incrimination, such evidence is suppressed, meaning it cannot be used at trial. People accused of crimes cannot be tortured or otherwise forced to confess or provide evidence of their guilt. At trial, juries are instructed by the judge that the accused is presumed innocent and must be found not guilty unless the jury is convinced beyond a reasonable doubt by competent evidence that the accused is guilty of the crime for which he is charged.
It has always been the judicial branch that had the responsibility to ensure that the executive branch did not deprive people it was detaining or accusing of a crime of these critical procedural rights.
Given all those obstacles, it should not surprise anyone that there are many “guilty” people who go free instead of being convicted and punished. So, why did our ancestors create such a system? They knew that government officials throughout history, either with or without good intentions, had used their criminal-justice powers to punish innocent people. Our ancestors believed, as the old adage goes, that it was better that ten guilty people go free than one innocent person be found guilty and punished for a crime he didn’t commit.
Equally important, under America’s criminal-justice system these rights inure to any person, including foreign citizens, whom federal officials charge with a crime. That point shocks some Americans. They cannot believe that foreigners accused of a crime are guaranteed the same procedural rights as Americans who are accused of a crime. But it’s true — and it has long been one of great hallmarks of America’s criminal-justice system. It is something that Americans can take pride in.
Another long-established legal principle in the United States is “equal application of the law.” What it means is that in the United States, the criminal law would be applied equally to everyone, rich or poor, government official or private citizen, foreigner or American.
A closely related political principle is called “the rule of law.” Contrary to popular opinion, it does not mean that people should obey the law. What it means is that people should have to answer only to a well-defined, previously enacted criminal law for their conduct, not to the discretion or arbitrary judgments of government officials.
The military tribunals that Congress is now set to enact at the behest of President Bush effectively toss those legal principles into the ashcan of the “war on terrorism.” No habeas corpus, grand-jury indictments, due process of law, speedy and public trials, trial by jury, and protection from unreasonable searches and seizures, incompetent evidence, coerced testimony, and cruel and unusual punishments. The military tribunals will constitute one of the most fundamental altering of our constitutional order since the founding of our nation. And it’s being done without even the semblance of a constitutional amendment.
No matter how often federal officials couch their “war on terrorism” as a real war, they cannot avoid the discomforting truth: terrorism is a federal criminal offense, a law that was duly enacted by Congress. It is on the federal statute books. It is a criminal offense for which the feds have indicted and prosecuted many people—and continue to do so.
Since terrorism is a federal criminal offense, it should not surprise anyone that people who have been accused of terrorism have been guaranteed all the procedural rights enumerated in the Bill of Rights during their criminal prosecution. That is, they have had the right to an attorney to defend them, the right to cross-examine witnesses against them, the right to due process of law, the right to a jury trial, and the right to be free of cruel and unusual punishments. The Federal Rules of Evidence prohibit juries from considering hearsay and other incompetent evidence. If the accused is convicted, federal judges will not permit executive officials to torture them as part of their punishment.
Under the legislation that Congress is set to enact at the behest of the president, U.S. officials will have the option of totally circumventing the U.S. criminal-justice system for foreigners whom they accuse of terrorism. The feds will instead be entitled to employ a brand new, independent “judicial” system run by the U.S. military, which is part of the executive branch and whose officials answer to the president. This new-fangled military "justice" system will be run overseas, beyond the reach of the U.S. judiciary. While there are still ongoing debates and discussions between Congress and the president on how the military tribunals will operate, no one can deny that they will not be run by an independent federal judge, that they will have fundamentally different rules of procedure and evidence than those in federal courts, and, perhaps most important, will not have juries consisting of ordinary citizens deciding the guilt or innocence of the accused.
Both the president and the Congress justify all this by repeating their favorite post-9/11 bromide: “The 9/11 attacks were an act of war, and we are now at war against the terrorists.”
Oh? Then, pray tell: Such being the case, what were the feds doing prosecuting Zacharias Moussaoui, who was accused of conspiring to commit the 9/11 terrorist attacks, in a federal district court? If terrorism is no longer a criminal offense and is instead an act of war, then what was that grand-jury indictment against Moussaoui all about? Didn’t it specify the federal criminal laws that Moussaoui had violated in conspiring to commit the 9/11 attacks? Was it just an honest mistake to have indicted and convicted Moussoui of that federal criminal offense? Should his guilty plea and life sentence now be vacated, and should he now be treated as a prisoner of war in the “war on terrorism”?
Or about Ramzi Yousef, who was indicted and convicted in a federal district court in New York for the terrorist bombing of the World Trade Center in 1993? Should his conviction and life sentence in a federal prison also now be vacated, and should he now be accorded prisoner-of- war status?
If terrorism is an act of war, then why is accused terrorist Jose Padilla now defending himself in a federal district court against an indictment that accuses him of terrorism?
The truth is that the “war on terrorism” rhetoric has been a sham from the beginning — a sham to enable federal officials to do what they’ve been trying to do for decades, especially in another sham war — the “war on drugs” — emasculate the Bill of Rights to enable federal officials to run roughshod over people — and not just foreigners. The military-tribunal legislation is just the culmination of decades of federal officials’ mocking and ridiculing the “constitutional technicalities” whose only real purpose, U.S. officials have long claimed, is to let “guilty” people go free.
That’s in fact why President Bush and the Pentagon set up their torture camp in Cuba rather than in the United States — to avoid the constraints of the U.S. Constitution and the Bill of Rights, which they obviously hold in disdain. After all, what other explanation could there be for their incessant attempts to circumvent America’s federal-court system?
They set up their torture camps in Cuba and elsewhere overseas, including in secret Soviet-era compounds in Eastern Europe, because they didn’t want any U.S. federal judges interfering with their operation of “justice” in their “war on terrorism.” They didn’t want to accord people accused of terrorism due process of law, right to counsel, speedy and public trials, and trial by jury. They wanted to use their own warped rules of evidence to convict people who they already “knew” were guilty, which included using unreliable testimony secured by torture. They wanted to be free to inflict cruel and unusual punishments, including torture and sex abuse, on the “terrorists.”
Now, I know that conservatives get upset when libertarians bring up Adolf Hitler in the context of the post-9/11 U.S. government assaults on civil liberties (Have you ever noticed that they never get upset when U.S. officials compare recalcitrant foreign rulers to Hitler?), but as I pointed out in my article “A Democratic Dictatorship,” when the U.S. government is doing something that Hitler did, while that doesn’t automatically make it bad, it at least should raise some red flags.
As I pointed out in my article “How Hitler Became a Dictator,” after the terrorist strike on the Reichstag, which enabled Hitler to secure the Enabling Act that temporarily suspended civil liberties in Germany, a German judge, while convicting one of the defendants, acquitted others, much to Hitler’s chagrin and disapproval. After all, they were obviously “terrorists.” How dare that German judge find them not guilty?
So, Hitler decided to implement a new “independent” judicial system within Germany to try terrorists and traitors. Known as the “People’s Court,” it became nothing more than a judicial lapdog to carry out prosecutions, convictions, and punishments in accordance with Hitler’s will. In fact, it was the infamous People’s Court that convicted German college students Hans and Sophie Scholl and their friends in the White Rose organization and quickly tried and executed them (3 days after their arrest) for treason for distributing antiwar and anti-government pamphlets.
The military tribunals that Bush and the Congress are setting up will supposedly be used only on foreigners, not on Americans accused of terrorism. The reason for that differentiation in treatment is political — the feds know that Americans are less likely to object to this new judicial system if Americans think that will be applied only to “other people,” not to them.
How can such a system be reconciled with the legal principle of equal application of the law and the political principle of the rule of law? Answer: It cannot be. Suppose there is a conspiracy to commit terrorism consisting of both foreigners and Americans. The accused will be placed in two lines — just like at the arrival section at U.S. international airports. In one line will be those who have foreign passports — they will go to the kangaroo military tribunals for conviction and punishment. In another line will be those who have U.S. passports — they will go to the federal courts — well, until federal officials decide that Americans terrorists should be treated no differently than foreign terrorists. And that will be the day when Americans start to recognize more clearly the consequences of having permitted the Congress, the president, and the Pentagon to have hijacked their criminal-justice system and decimated the judicial principles that formed the founding of our nation.
After all, the only reason that Americans do not find themselves at Gitmo is because the Pentagon, in its discretion, decided not to send Americans suspected of terrorism to Gitmo. That discretionary decision could be changed at any time, just as the current policy of “rendering” foreigners to Syria and other tyrannical regimes for torture can be changed at any time to include Americans.
The same holds true for Americans accused of terrorism in the future — they could easily find themselves before a kangaroo military tribunal fighting for their lives rather than in a U.S. district court.
After all, no one should forget the Padilla doctrine. Even though Jose Padilla, an American citizen, is in federal court now, the president and the Pentagon have made it perfectly clear that they now have the power to arrest any American for terrorism and send him to the military for punishment, bypassing the federal-court system. In fact, there’s little doubt that if Padilla is acquitted in federal court, the feds intend to yank him back into military custody as an “enemy combatant” in the “war on terrorism,” despite the bar on double jeopardy in the Bill of Rights.
Why are the feds fighting so hard for those military tribunals? Because the tribunals will enable them to directly control both the proceeding and the outcome of the proceedings. They can ensure that the defendants won’t describe too extensively the torture and sex abuse to which they have been subjected while in captivity. They can restrict access by the press to both the defendants and the proceedings. They can ensure that the defendants will be more easily convicted, given that their right to counsel will be limited and that hearsay evidence and coerced testimony, some of which will be kept secret from the accused, will be able to be used to convict them. They can keep a short leash on the military officials presiding over the proceedings, something they cannot do with an independent federal judge. They can ensure that a jury of ordinary people will not interfere with what the prosecutors are seeking, as the jury in the Zacharias Moussaoui case did in sentencing him to life in prison instead of granting prosecutors’ request to inflict the death penalty on him — or as the jury did when it acquitted several terrorism defendants in Detroit.
The military tribunals will ensure that those in the executive branch, not those in the judicial branch, will be the final deciders of who is guilty of terrorism and who isn’t and how these “terrorists” will be punished. This despite the fact that the federal “war on terrorism” dragnet has netted innocent people in the process — innocent people who have been tortured, sexually abused, and even murdered by U.S. personnel or their duly authorized foreign agents.
The tribunal legislation will confirm once again the power of federal officials to use the 9/11 attacks — attacks that ironically were motivated by anger against wrongful U.S. government policies — as a way to fundamentally alter the American way of life. More important, the enactment of the tribunal legislation will reflect once again how the American people’s fear of terrorism is causing them to look away while their federal officials decimate the Constitution and dismantle a criminal-justice system whose principles stretch back centuries.

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