One of the things the mainstream media never mentions in discussing conservatives’ embrace of the Pentagon’s military-tribunal system in Cuba for prosecuting accused terrorists is the disdain that conservatives have for trial by jury, the right that our American ancestors enshrined in the Sixth Amendment to the Constitution.
After all, it’s not as if conservatives couldn’t have made trial by jury part of their military-commissions system. But that’s the last thing they wanted. Instead, they wanted a system like that employed in countries like Burma, where the people who are determining the guilt or innocence of the accused are military officials, that is, people who can be counted on to do their duty by convicting while falsely and fraudulently appearing to render justice.
In a jury trial the people who are determining whether the government has satisfied its burden of proof are ordinary citizens drawn at random from the community. They might be bankers, janitors, hairdressers, schoolteachers, or any other occupation or they might even be unemployed. Most of the time, a jury will consist of people who are not experts in the law. They’re just ordinary people who are called upon to sit in judgment in one particular case, after which they return to their regular lives.
Trial by jury is a system in which Americans should take great pride. There’s good reason why the Americans who founded our country made certain that trial by jury was enshrined into the Bill of Rights. When it came to criminal prosecutions, they didn’t trust lawyers, judges, the military, or any other governmental officials to make the right decision on guilt or innocence of the accused. The people they trusted to make the right decision were ordinary people in the community who would be periodically called upon to serve as jurors.
Our ancestors understood that over time, judges become jaded, even crooked or corrupt. As their years on the bench go by, they inevitably begin viewing every criminal defendant from the standpoint of a presumption of guilt. They become so accustomed to criminal defendants’ falsely claiming to be innocent that when a truly innocent person appears before them protesting his innocence, the judge’s mindset becomes one of “Yeah, sure.”
Not so with juries. They usually take seriously such principles as the presumption of innocence and the requirement that the prosecution must convince them beyond a reasonable doubt that the accused really is guilty of what they’re charging him with.
The collective conscience of a jury is much more elevated than that of the judge. This phenomenon manifests itself not only in terms of a more conscientious determination of guilt or innocence but also in the equally important determination of the morality of the law itself or the propriety of the government’s conduct in the case.
I’m referring, of course, to the concept of jury nullification, the power that a jury possesses to acquit a criminal defendant because the jury has concluded that the law under which he is being prosecuted is unjust or because the government has behaved wrongfully.
Consider, for example, the drug war. A jury might well acquit a defendant because of the fundamental immorality of drug laws. Or they might acquit because drug agents have committed perjury in the case.
That’s not something any judge is ever likely to do. In fact, judges usually will never tell a jury of the extent of their power to acquit.
The latest proposal set forth by conservatives — a national security court — is undoubtedly modeled on the national security court established by Adolf Hitler. Hitler established his national security court, which he called the People’s Court, for the same reason that American conservatives are calling for such a court — to ensure that accused terrorists and traitors were always convicted, not acquitted. It might interest you to know that the disdain that conservatives have toward criminal defense attorneys who represent accused terrorists was also shared by Hitler and his People’s Court tribunal. To get a good picture of how a national security court would operate here in America, see Part 13 and Part 14 of the movie Sophie Scholl: The Final Days on Youtube.
Of course, none of this should surprise us, given that conservatives established their prison camp in Cuba for the precise purpose of avoiding the application of the Constitution and of the Bill of Rights. What better evidence than the intentional establishment of a Constitution-free zone in a communist country of conservative hatred not only for the right of trial by jury but also the other rights and guarantees in the Constitution and the Bill of Rights?
Jacob Hornberger is founder and president of The Future of Freedom Foundation.
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