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Federal Judicial Deference to the National-Security State


If you’d like a good example of the power that the national-security branch of the federal government has acquired within our federal governmental structure, all you have to do is consider the judicial system that the Pentagon has established and runs at Guantanamo Bay, Cuba, for terrorism prosecutions. It is a perfect example of how the federal judiciary, out of deference to the national-security branch of the government, has abrogated its responsibility of declaring its acts unconstitutional.

The judicial system that the Pentagon runs at Gitmo isn’t about putting soldiers on trial for offenses committed inside the military bureaucracy. That’s what the Uniform Code of Military Justice is all about. If a soldier, say, is caught violating drug laws on base, he’s prosecuted within the military system, not the civilian judicial system.

What we are talking about instead is a judicial system that the Pentagon established in cases involving terrorism to compete against the federal judicial system that was established under the Constitution.

The way the system works is that federal prosecutors in the executive branch of the government, working with people in the national-security branch, now decide which judicial system to use in terrorism cases — the Pentagon’s system or the federal judicial system.

Consider the following hypothetical. Congress enacts a law, which the president duly signs, that establishes a congressional judicial system to try drug-law cases. Under the law, federal prosecutors will now be working with the members of Congress to determine whether drug suspects are tried either in the federal courts or the congressional courts.

Suppose someone were to challenge the constitutionality of those congressional drug-law courts. There is absolutely no doubt that the federal judiciary would declare them unconstitutional. The federal judges would say: The Constitution establishes the judicial branch as the only branch in which federal criminal prosecutions can take place. The prosecution of drug offenders is no exception. The federal court would order Congress to dismantle its competing judicial system.

The principle is no different with terrorism or any other federal criminal offense. Under the Constitution, criminal prosecutions must be brought only within the judicial branch of the government.

What the national-security branch did with its judicial system at Gitmo is no different than our hypothetical. The Pentagon, working with the executive branch, set up an alternative judicial system in Cuba, one that would compete against the federal judicial system established under the Constitution, just as the congressional judicial system in our hypothetical would be competing against the federal judicial system in drug-war cases.

What should the Supreme Court and other federal courts have done with the Pentagon’s judicial system at Gitmo? They should have done what they would do if Congress were to establish a competing judicial system. They should have declared it unconstitutional and ordered it shut down. After all, there is clearly no constitutional authority for the national-security branch (or the legislative branch) to establish an alternative, competing judicial system.

And it’s not as though the two systems are similar. In fact, they are diametrically opposite. The system established by the Framers affords a terrorism suspect long-established rights and guarantees, such as grand-jury indictments, right to counsel, right to cross examine witnesses, right to summon witnesses, the presumption of innocence, a requirement of proof beyond a reasonable doubt, no forced confessions, the right to be free of cruel and unusual punishments (including torture), speedy trial, and, of course, trial by jury.

Most, if not all, of those protections are missing in the Pentagon’s system. In fact, the Pentagon’s system is established for one and only one purpose — to secure a conviction but have it encased within an aura of judicial legitimacy. The Pentagon’s system is the classic example of a kangaroo judicial system.

Therefore, it obviously makes a big difference to a terrorism suspect which system he is tried in. But note something important here: The accused doesn’t get to choose which system he’s going to be tried in. The executive branch and the national-security branch jointly make that decision. Thus, you can have two terrorism suspects accused of the same crime, with each being subjected to prosecution in completely different systems. It would be difficult to find a better example of a more arbitrary, capricious system.

Why didn’t the federal judiciary simply hold that the Pentagon’s alternative judicial system for trying terrorism cases was unconstitutional? Why didn’t they just order that the whole thing be shut down, as they undoubtedly would do if Congress were to establish a similar competing judicial system in drug cases?

The answer lies in the enormous power that the national-security branch of the government has acquired since the time it came into existence in latter half of the 1940s.

Boiled down to its essence, government is force — force that is initiated against people. It’s through force that the federal government ultimately enforces its tax laws, regulations, and orders (and employs against people in foreign lands who resist its invasions, wars of aggression, and occupations).

For example, if someone refuses to pay his income taxes, IRS agents will forcibly seize his property. If he resists, the government will use whatever amount of force is necessary to cause him to submit. If a federal judge orders him to appear before his court and he refuses to comply, force will be used against him to bring him into court. That’s where U.S. Marshals and FBI agents come into play.

But everyone has come to understand that the branch that wields the overwhelming amount of force with the federal governmental structure is the national-security branch. What federal judges realized a long time ago was that the force that they have at their disposal to enforce their judicial orders is nothing compared to the force wielded by the Pentagon and the CIA.

For example, what would happen if the Supreme Court had ordered the Gitmo judicial system shut down and dismantled and the Pentagon and the CIA had refused, based on grounds of “national security”? Federal judges know that a team of U.S. Marshals standing at the front gate of a military post aren’t going to get very far, at least insofar as force is concerned.

That’s also why the federal courts never declared the wars in Korea and Vietnam unconstitutional, notwithstanding that both wars clearly lacked the congressional declaration of war required by the Constitution. They knew that they lacked the force required to enforce their judgment against the military. Rather than expose their impotence and the overwhelming role that the national-security establishment now plays in America’s governmental structure, they came up with nonsensical rationales for declining to rule on the issue, such as the “political question doctrine” or “non-justiciable” or “lack of standing.”

As Michael J. Glennon points out in his excellent book National Security and Double Government, the national-security state has done a brilliant job making it appear that the other three branches are still in charge. That makes people feel good. Most people don’t want to think about the fact that the establishment of a national-security state fundamentally altered America’s governmental structure, for the worst.

Meanwhile, the mainstream press just keeps going along with it all, acting as if it’s the most normal thing in the world to have two competing judicial systems for terrorism cases, one run by the military and one run by the federal judiciary. For example, a few days ago in an editorial entitled, “A Detainee Describes More C.I.A. Torture,” the New York Times stated:

An even fuller accounting of what went on at black sites and Guantánamo could come from transferring cases like Mr. Khan’s out of the wholly inadequate military commission system and into the federal courts, which have shown they can successfully prosecute terrorism cases and abide by the Constitution at the same time.

Notice what the Times is saying: that the federal judicial system is better than the military judicial system for terrorism cases. Notice what it’s not saying: that the Constitution does not permit the military to establish a judicial system in competition with the federal judicial system and, therefore, that the federal judiciary should have ordered it shut down before it even got going.

It’s just a sign of the times in which we live, one of deference to the national-security state and the overwhelming power it wields in America’s federal governmental structure.

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.

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