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Hornberger's Blog is a daily libertarian blog written by Jacob G. Hornberger, founder and president of FFF.
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Kangaroo Tribunals versus Trial by Jury


Ever since 9/11 the U.S. government has maintained a criminal-justice system that enables it to treat suspected terrorists in two alternative ways: as criminal defendants in federal district court or as unlawful enemy combatants in the Pentagon’s military system. It would be difficult to find a better example of denial of equal protection and a violation of the rule of law than this optional, ad hoc, discretionary power to treat accused terrorists in two completely different ways.

One of the reasons that the Pentagon has tried its best to shunt accused terrorists into its system is the right of trial by jury, a critically important right that, prior to 9/11, used to be guaranteed to all people accused of terrorism. The reason the Pentagon is so prejudiced against trial by jury is that unlike trials in which military judges are deciding the guilt or innocence of an accused, a jury of regular citizens injects an element of “conscientious unpredictability” into the proceedings.

In military-tribunal proceedings, such as those that are supposed to take place in the Guantanamo Bay prison camp sometime in the future, President Bush and his team of military prosecutors can safely count on the judges to render the guilty verdict that prosecutors are seeking. At the risk of belaboring the obvious, the fact that a prosecution in a military tribunal is even taking place itself sends a direct message to the military judges who are deciding the guilt or innocence of the accused: the president and his subordinates are convinced that the accused is a person who is guilty of terrorism and that he deserves to be convicted and punished.

The judges on the military tribunal are military personnel. As such, their careers depend on the information and reports that are placed in their files, which follow them throughout their careers. Every military person knows that negative reports in his career file inevitably hurt his chances for promotion and advancement, especially when he gets to the higher grades of rank (e.g., colonel, general, etc.).

So, how likely is it that military officials serving on military tribunals are going to buck their commander in chief and their superiors in the Pentagon by essentially ruling, “Mr. President, you and your people are wrong. You have accused, tortured, and abused this innocent man for more than five years. I am voting ‘not guilty’”?

Not very likely at all, unless the president and his subordinates in the Pentagon have signalled that an acquittal would be acceptable to them.

On the other hand, as our American ancestors understood so well, a jury of regular citizens is much more likely to take a critical look at the government’s evidence in a criminal prosecution. One big reason is that their careers don’t turn on their verdict. Thus, they are likely to take their responsibilities as independent determiners of the guilt or innocence of the accused much more seriously and critically than military judges.

This phenomenon was recently confirmed in an article entitled “Few Clear Wins in U.S. Anti-Terror Cases” in the April 21 issue of the Washington Times. The article pointed out that jurors in various federal terrorism prosecutions have failed to buy the government’s case, resulting in either acquittals or a hung juries.

One big example is the famous Miami terrorism case involving a supposed conspiracy to blow up the Chicago Sears Tower, which Attorney General Alberto R. Gonzalez had stated, amidst considerable fanfare, “represented a new brand of terrorism [that] may prove to be as dangerous as groups like al-Qaeda.”

After hearing all the evidence that federal prosecutors presented, the first jury in the Miami prosecution acquitted one defendant and was unable to reach a verdict with respect to the other defendants. In the second trial, which was recently held, the jury was again unable to reach a unanimous verdict. Federal prosecutors have just announced that they’re going to try a third time. As Professor Jonathan Turley of George Washington’s Law School (who will be a speaker at FFF’s June 6-8 conference “Restoring the Republic 2008: Foreign Policy and Civil Liberties”) put it, “These are the types of prosecutors Las Vegas is built on. They keep returning to the table with the same losing hand.”

If the Miami terrorist prosecution had been brought instead in a military tribunal, the result, almost certainly, would have been entirely different. For one thing, if the defendants had been subjected to the same treatment accorded to terrorist suspects in CIA and Pentagon custody at Guantanamo Bay and elsewhere, they would have been tortured or sexually abused into making confessions or incriminating admissions that would have been admissible at their trials. More important, the possibility that military judges would go against their commander-in-chief’s military prosecutors is virtually non-existent.

Our American ancestors brought into existence the finest criminal-justice system in history, one in which criminal defendants, regardless of crime or nationality, are accorded such important procedural rights as right to counsel, presumption of innocence, right to confront witnesses, freedom from self incrimination, protection against cruel and unusual punishments, trial by jury, and due process of law.

What a shame that in post-9/11 America the Pentagon has hijacked that great judicial system in favor of one involving torture and sex abuse, presumption of guilt, coerced confessions, hearsay evidence, denial of due process, and kangaroo military tribunals with predetermined verdicts.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.