by Jacob G. Hornberger
Republicans are cheering while liberals are mute over another important cave-in by President Obama, this time over his flip-flop regarding the trial of accused terrorist Khalid Sheikh Mohammed, whom Obama initially intended to prosecute in federal district court in New York City but is now sending down the Pentagon’s kangaroo military-tribunal route.
Let’s make no bones about it: There is one big reason for prosecuting Mohammed in the military’s kangaroo system: to make certain that the defendant is convicted. In a federal-court jury trial, there is always the possibility of an acquittal. Juries composed of ordinary citizens are sometimes unconvinced that the feds have provided sufficient evidence of guilt beyond a reasonable doubt and thus sometimes reject the government’s request for a conviction.
The possibility of an acquittal is non-existent in the Pentagon’s kangaroo system, at least if it’s clear that President Obama and Pentagon officials desire a conviction. The jury in the kangaroo system is composed of military officials, all of whom ultimately answer to the president. They’re not about to jeopardize their military careers by bucking the wishes of their commander in chief, especially by freeing a person whom the president and the Pentagon have publicly labeled a terrorist.
By the way, that’s also the reason that German Chancellor Adolf Hitler established his People’s Court. After the terrorist bombing of the Reichstag, the regularly constituted German courts acquitted some of the defendants who had been accused of participating in the bombing. For Hitler, that was unacceptable. He took the same position that Obama and the Pentagon take: A terrorist is a terrorist and should never be acquitted. To ensure that that never happened again, Hitler established the People’s Court, whose judges answered to Hitler.
If you’d like to get a good sense of how the People’s Court functioned — and how closely it resembles the proceedings in the Pentagon’s kangaroo court system, check out Sophie Scholl: The Final Days. It is an absolutely great movie.
The United States now has two competing judicial systems: the one established by the U.S. Constitution and the one established at the Guantanamo Bay prison camp by President Bush and the Pentagon after 9/11.
One of the fascinating aspects of the Pentagon’s kangaroo system is the fact that it rejects virtually all the rights and guarantees that are incorporated into the Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution.
Keep in mind, after all, that Bush gave the Pentagon carte blanche to set up whatever kind of judicial system it wanted for trying terrorists. The Pentagon chose to reject the right of trial by jury, the right to speedy trial, the right to effective assistance of counsel, the right to due process of law, the right to confront and cross-examine adverse witnesses, the right to bail, and the presumption of innocence. It accepted evidence acquired by torture, confessions acquired by torture, hearsay, and secret judicial proceedings.
Why did the Pentagon reject the rights and guarantees that are inherent to America’s constitutional federal-court system? Because it doesn’t believe in those rights and guarantees. It rejects them. Instead, it embraces the principles and systems in those dictatorial regimes that it has long partnered with, cooperated with, and trained, such as Egypt, Bahrain, Saudi Arabia, and Jordan.
The reason the Pentagon has long partnered with dictatorships is because U.S. military officials believe in the “order and stability” that such dictatorial systems bring to their respective countries. That “order and stability” is provided by such things as indefinite incarceration, torture, denial of due process, and guaranteed verdicts in kangaroo judicial proceedings.
U.S. officials now wield the self-assumed authority to decide whether to send a person accused of the federal crime of terrorism into the Pentagon’s junky kangaroo system or into America’s federal-court system established by the Constitution. The choice is entirely up to federal officials. The decision is arbitrary and ad hoc. It’s made on a case-by-case basis. It would be difficult to find a better example of a violation of the “rule of law” and the principle of “equal application of law” to everyone.
The Pentagon’s judicial system, like those in those U.S.-supported Middle East dictatorships, is nothing but junk. No one, not even defendants who the government are 100 percent convinced are guilty, is deserving of being prosecuted in a junky judicial system, one in which a guilty verdict is preordained.
It was a day of shame when President Obama abandoned his principles and decided to relegate Khalid Sheikh Mohammed to the Pentagon’s junky judicial system. It was an even bigger day of shame when the Pentagon set up its junky judicial system in the first place.
Jacob Hornberger is founder and president of The Future of Freedom Foundation.
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