by Jacob G. Hornberger
If there is anything good about the military tribunals at Guantanamo Bay, it is that the American people will get to see how trials are conducted in totalitarian countries. One thing is for sure: The procedural protections found in the Bill of Rights that are employed in our federal court system here at home are nowhere to be found in the Pentagon’s system in Cuba.
Consider, for example, the right to a speedy trial. Under the Pentagon’s system, that right is just a joke. Some of the defendants have been sitting in the Pentagon’s jail for some 10 years without trial. It would be difficult to find a clearer violation of the right to a speedy trial than that.
But the Pentagon couldn't care less. Just a few days ago, there was an arraignment, a step that ordinarily is taken within a few days of a person’s arrest in the federal-court system here at home. At Gitmo, it’s being done some 10 years after arrest.
And it’s not even clear when the actual trial will begin. My hunch is that it’ll start sometime after the presidential election — perhaps even a long time after the election. There really is no rush. There is absolutely no sense in the military mind that justice delayed is justice denied.
The reason that no one is in a rush to try the defendants is because they’re already in jail and because everyone is convinced that they’re guilty. Since they’re considered guilty, who cares when they get a trial or ever get a trial? The fact that they’re in jail is all that matters, unless of course the government wishes to bring an end to the matter by executing them. Simply lining them up in front of a firing squad without a trial and shooting them might not look too good. So, a trial, followed by a conviction and the imposition of a death sentence, makes the execution look legitimate.
In the Pentagon’s system, the defendant is presumed to be guilty and he is treated accordingly. The reason that the Pentagon tortures people at Guantanamo is because every prisoner at Guantanamo is considered to be a terrorist. The thought that any of the defendants is innocent doesn't occur to anyone in the military. They are all terrorists and so there is nothing wrong with treating them as terrorists. How could they not be terrorists? They’re prisoners at Guantanamo, right?
The defendants at Guantanamo bear the burden of proving their innocence. It is virtually an insurmountable burden because a finding of innocence would mean that that the military has incarcerated, tortured, and abused an innocent man for more than 10 years, all the while denying him a trial at which he could prove his innocence. That would be highly embarrassing to the entire government, all three branches of which have been complicit in the man’s incarceration and mistreatment. Thus, the chances of a defendant’s successfully proving his innocence are virtually nil.
Here in the United States, every defendant is presumed innocent. The federal judge specifically informs the jury of that presumption. He also tells them that unless that presumption is rebutted by competent and reliable evidence that convinces the jury beyond a reasonable doubt of the defendant’s guilt, the jury must find the defendant innocent.
Thus, even though a criminal defendant is sometimes ordered to remain incarcerated until trial in our system here at home, government officials are prohibited from torturing him or mistreating him. Why? One big reason is because he is presumed to be innocent of the charges, notwithstanding the fact that he’s in jail awaiting trial. Our system here at home recognizes that it’s not a good thing to be torturing and abusing innocent people. Of course, the other big reason is that under our constitutional system of justice here at home, cruel and unusual punishments are prohibited even after a person is convicted and sentenced.
What about trial by jury, one of the most cherished rights guaranteed by the Bill of Rights? It doesn't exist at Guantanamo. The jury there consists of military officials, all of whom serve in the organization that is charged with waging the “war on terrorism,” which entails killing and capturing “enemy combatants.” As military personnel, the members of the jury at Guantanamo also ultimately answer to their commander-in-chief, the president. Finding a defendant innocent in the face of a fierce prosecution might be a courageous thing to do but it’s also a certain way to ruin one’s career in the military.
Under our constitutional system of justice, regular people from the community serve on juries. Our American ancestors wanted it that way. They figured that ordinary people would be less subject to improper influence and would be more likely to render a fair and impartial decision based only on the evidence. In federal jury trials, jurors couldn't care less about how the president or the military feel about a particular defendant. Unlike the military members of the juries at Guantanamo, the ordinary people on the juries here at home render their decision independently of such concerns.
In the Pentagon’s system, the prosecutors will be permitted to admit hearsay into evidence in order to help secure a conviction. In our constitutional system here at home, that’s not allowed.
Why does our constitutional system prohibit hearsay? Because it denies the defendant the right to challenge the person who makes the statement. Suppose Joe Blow takes the witness stand and testifies, “John Doe told me that he saw the defendant blow up a bomb, killing dozens of innocent people.” How can the defendant’s attorney conduct an adequate cross-examination based on that testimony? Sure, he can challenge Joe Blow’s veracity by suggesting that John Doe never really told him that but he cannot challenge John Doe as to what Doe actually saw because Doe is not on the witness stand.
So, under our constitutional system, if the government wants John Doe’s testimony, it is required to bring him to court to testify, which enables the defense to cross examine him and challenge his veracity. Under the Pentagon’s system, John Doe’s version of events can be related through Joe Blow, thereby inhibiting the defense from challenging the veracity of Doe’s account.
Our system of justice also guarantees a public trial. That’s to ensure that everything is kept on the up and up. Not so with the Pentagon’s system. Whenever there is going to be evidence relating to the military’s or the CIA’s torture of the defendant or torture of prosecution witnesses appearing at trial, the judge is going to immediately close the proceedings in order to keep such wrongdoing secret from the American people. Apparently “national security” will be at stake if Americans discover how their government has been torturing people. In fact, preliminary indications are that the defendants might well be prohibited from even mentioning or describing the torture that they or witnesses have been made to undergo.
Why did the Pentagon set up a “judicial” system to compete against our federal court system? The answer is simple: Because the Pentagon doesn't believe in the procedural principles that are enumerated in the Bill of Rights and applied in U.S. federal courts. Those principles, in the minds of the military, have the potential to let “guilty” people — that is, people the military “knows” are terrorists” — go free.
After all, juries composed of ordinary citizens are unpredictable. Oftentimes, they acquit people whom the government is convinced are guilty. Moreover, defense attorneys often expose grave government wrongdoing in the course of a trial.
Those problems, of course, don’t exist in totalitarian countries, where the judicial process is designed to create the appearance of fairness when in fact the outcome is preordained.
It’s appropriate that the Pentagon chose to establish its “judicial” system in Cuba, given that it so closely resembles the “judicial” system on the other side of the island.
Jacob Hornberger is founder and president of the Future of Freedom Foundation.
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