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A Presumption of Guilt at Guantanamo


One of the principle differences between the Pentagon’s military-tribunal system and the U.S. federal-court system for prosecuting accused terrorists involves the presumption of innocence. In the federal-court system, the accused is presumed innocent while in the Pentagon’s system, the accused is presumed guilty and treated accordingly.

An article in yesterday’s New York Times reflects how the Pentagon treats accused terrorists. Prisoners at Gitmo are held in isolated cells for extended periods. Family visits, televisions, and radios are prohibited. A new policy will permit one telephone call a year.

Salim Ahmed Hamdan, who is accused of being Osama bin Laden’s driver, has been imprisoned for more than six years. He has had two phone calls to his family and no visits during that time. “Conditions are asphalt, excrement and worse. Why, why, why?” he wrote his lawyers.

Prisoners at Gitmo cannot see the outside from their cells. Two hours of recreation each day are sometimes offered in the dark. One prisoner, Abdulghappar Turkistani, said to his lawyers, “Losing any contact with anyone also being forbidden from the natural sunlight, natural air, being surrounded with a metal box all around is not suitable for a human being.”

Taking a page from jails run by the Soviet Union and China, the Pentagon does not permit reporters or Amnesty International to visit with detainees at Guantanamo.

The result of the mistreatment is that many of the prisoners at Guantanamo have gone insane or become mentally unstable, causing their lawyers to file motions relating to their inability to properly defend themselves under such conditions. Of course, since the judges who will be ruling on such motions are military personnel, the chance that such motions will granted are slim and none, especially given that Pentagon officials are, not surprisingly, denying any mistreatment of prisoners as well as claims of mental disorder.

The implicit justification for the mistreatment of Guantanamo prisoners is the Pentagon’s presumption of guilt. Since all these prisoners are dangerous terrorists, the reasoning goes, what’s wrong with treating them as such? Never mind that they’ve never been convicted of terrorism in a fair trial. Never mind that the Pentagon has released many accused terrorists from Guantanamo over the years, which might indicate that mistakes have been made. And never mind that many accused terrorists who were accorded the federal-court route have been acquitted. The Pentagon is “certain” that its prisoners at its Guantanamo Bay prisoner camp are guilty and so, the reasoning goes, there’s nothing wrong with treating them as guilty.

As Comdr. Pauline A. Storum, the spokeswoman for Guantanamo, bluntly put it, “We are holding the right people, in the right place, for the right reasons, and doing it the right way.”

Of course, in the federal-court system, federal officials could never get away with treating accused terrorists in the way that the Pentagon treats accused terrorists. Given even a hint of mental or physical torture or sex abuse, a criminal-defense attorney would immediately file a motion with the federal judge presiding over the case, who in turn would immediately schedule a hearing on the matter.

If the evidence at the hearing shows that an accused terrorist (or any other accused prisoner) is being mistreated, the federal judge will immediately order a stop to it. If they know what’s good for them, federal agents and prison officials will immediately comply with the judge’s order.

The primary reason that the federal courts will ensure the proper treatment of an accused prisoner is the presumption of innocence. Until the government proves beyond a reasonable doubt in a fair trial, usually one involving a jury, that a person has committed a crime, he remains as innocent in the eyes of the law as everyone else.

Thus, it should surprise no one that such terrorists as Ramzi Yousef (1993 WTC attack) and Zacharias Moussaoui (9/11 WTC attack), both of whom received federal-court treatment, did not receive the horrible abuse that accused terrorists at Guantanamo Bay have received. The federal judges who presided over their prosecutions would never have permitted it, no matter how convinced prosecutors were of their guilt.

Of course, that’s not to say that some accused defendants don’t have to remain in jail until their trial. Oftentimes, bail is denied for various reasons. But even in jail, accused criminal defendants in the federal-court system are entitled to be treated humanely, which means visitors, meetings with attorneys, and no mental and physical torture, sex abuse, or extended periods of isolation. Perhaps most important, they are entitled to a speedy trial to ensure that innocent people are not held in prison indefinitely.

With its denigration of the presumption of innocence, right to speedy trial, protection from cruel and unusual punishments, and denial of other due-process protections enumerated in the Bill of Rights, the Pentagon’s criminal-justice system closely resembles that of Fidel Castro. How appropriate that the Pentagon located it in Cuba rather than in America.

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.