by Jacob G. Hornberger
We should bear in mind what the Pentagon initially had in mind when it established its prison camp and judicial system at Guantanamo Bay after the 9/11 attacks. Its plan was to make its prison camp totally independent from any judicial review or congressional control whatsoever. It was going to be a facility that would under the total control of the military.
One of the most fascinating aspects of Gitmo has been the Pentagon’s total denigration of the principles in the Constitution and Bill of Rights.
Think about that for a moment. The Constitution is the founding document of our nation. It reflects principles of freedom that are important to Americans. And yet, here was the American military establishment setting up a system whose principles flew in the face of our nation’s founding document.
That’s, of course, ironic, because, as every American knows, every soldier takes an oath to support to support and defend the Constitution. But when they had the opportunity to establish a model prison and judicial system for the world to witness and marvel at, the military rejected the Constitution as its model and instead chose a system that would have comfortably fit inside Nazi Germany, communist China, North Korea, and Cuba itself.
One of the bedrock principles in legal jurisprudence is the right of habeas corpus, a right that the Framers expressly guaranteed in the Constitution. This extraordinary right permits a person whom the government had imprisoned to petition a judge to hold a hearing that requires the government to show cause as to why it is holding the person. Without habeas corpus, a government is able to imprison people indefinitely for whatever reason it wants, including for simply criticizing the government.
Guess what the Pentagon’s attitude toward habeas corpus was at its Cuban facility. You guessed right: No habeas corpus whatsoever. In other words, they hated the concept. In their system, it wouldn’t exist.
Consider the procedural rights that are found in the Fourth, Fifth, Sixth, and Eight Amendments in the Bill of Rights. Initially, they were nowhere to be found at Gitmo. Sure, today we see attorneys representing some of the accused, but that’s only because the Supreme Court ultimately established its jurisdiction over Gitmo and ordered the military to permit the accused to have legal counsel.
But that’s not what the Pentagon intended. Its plan was to exclude any judicial (and congressional) oversight whatsoever — and to prohibit any criminal defense attorneys from ever involving themselves at Gitmo.
The reason? There can be only one reason: The Pentagon’s deep antipathy toward the principles found in those four amendments in the Bill of Rights.
Consider the right to a speedy trial. Do you see the Pentagon honoring that principle? Of course not. They have prisoners who have been there 11 years who are still awaiting trial. Eleven years of waiting is about as far from a speedy trial as one can get.
What about trial by jury of one’s peers? It’s nonexistent at Gitmo. The last thing the Pentagon was ever going to do is permit regular American citizens to decide the guilt or innocence of the accused at Guantanamo. In the Pentagon’s system, military officials would make that determination, much like they do in the military dictatorship found in Myanmar.
What about the right of the accused to confront witnesses against him? The Pentagon tossed that one out the window as well. From early on, the Pentagon’s system would permit an accused to be convicted on hearsay evidence.
What about the bar against cruel and unusual punishments? With its embrace of torture, something that totalitarian regimes throughout history have been known for, the Pentagon discarded that prohibition as well.
Bail? Of course not. Anyone brought to Guantanamo would remain in jail awaiting his trial without any possibility of release pending trial.
Every American is familiar with the century’s old principle in criminal justice of the presumption of innocence. It’s one of those bedrock principles that distinguish America’s system from those of totalitarian nations, which presume the guilt of the accused.
Alas, however, when the U.S. military established its model system in Cuba, it embraced the -of-guilt principle.
None of this should surprise Americans, however. We saw it coming. In 1973, the democratically elected president of Chile, Salvador Allende, was overthrown in a military coup that was full supported by the Pentagon and the CIA. In fact, the CIA not only helped instigate the horrific economic conditions leading up to the coup, it also participated in the military execution of two young Americans, Charles Horman and Frank Teruggi.
After the coup, the new military dictator of the country, Augusto Pinochet, established a system that was based on the power of the military to take citizens into custody without judicially issued warrants, imprison them indefinitely, torture them, and even execute them.
The U.S. military and the CIA loved Pinochet’s system. Pinochet and his military were going after communists, and that was all that mattered, just as all that matters today is that the Pentagon and the CIA are going after terrorists. Then, as now, the end justified whatever means were necessary to attain it.
While there are certainly flaws in the Constitution and Bill of Rights, every generation of American since the inception of our nation has rightfully taken pride in the principles of freedom found in those two documents. It’s a shame that when the Pentagon was given the opportunity to establish a new model system at Guantanamo Bay it chose to discard America’s system and instead embraced that of Cuba.
Jacob Hornberger is founder and president of the Future of Freedom Foundation.
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