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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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Why No Trial by Jury at Gitmo?


Seven years after the Bush administration declared its “war on terrorism,” the first trial of an accused terrorist is now underway at Guantanamo Bay. The Gitmo trial involves the new-fangled “judicial” system that the president and the Pentagon put into place after 9/11, without even the semblance of seeking a constitutional amendment. Keep in mind that this is their model of what an ideal judicial system is all about.

The first and foremost thing that one will notice about the Gitmo system is the group of people who are deciding the guilt or innocence of the accused, especially compared to the group of people doing the same thing in the federal judicial system our ancestors brought into existence with the Constitution.

In the judicial system that the Bill of Rights guarantees, the accused has the right to have regular people in the community, chosen at random, to decide his guilt or innocence.

The reason our ancestors expressly guaranteed trial by jury in the Bill of Rights was twofold: First, they understood that this right was essential to a free society and, two, they believed that the federal government would inevitably attract people who hated losing control over federal prosecutions to regular citizens from the community.

Our ancestors’ concerns and beliefs were well-founded. The fact that the president and the Pentagon have established an ideal “judicial” system in Cuba that denies the accused the right of trial by jury is powerful evidence that this is what federal officials would do here in the United States in the absence of a Bill of Rights, especially in drug cases.

Who is deciding the guilt or innocence of the accused in the trials being held at Gitmo? U.S. military officials! And who is bringing the charges against the accused? You got it — the U.S. military! In other words, the same organization that is accusing a person of a crime is also deciding whether the accused is guilty of the crime.

By the way, it’s actually quite appropriate that the president and the Pentagon have set up their ideal “judicial” system in Cuba. Guess who decides the guilt or innocence of accused terrorists, including those with ties to the CIA, on Fidel Castro’s side of Cuba. You got it — Cuban military officials, just like in the model “judicial” system established by the president and the Pentagon on the other side of the island.

As the Gitmo proceedings unfold, Americans are going to have the opportunity to witness what America’s federal judicial system would look like in the absence of the Bill of Rights. Hopefully, the Gitmo spectacle will give the American people a renewed understanding and appreciation for why our ancestors were so determined to secure passage of the Bill of Rights.

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.