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Conservatives Are Wrong on Guantánamo


Conservatives are using the Detroit terrorist incident to demand that President Obama stop releasing prisoners from Guantánamo, especially those set to be released in Yemen. They’re also pointing to the fact that some of the prisoners the Pentagon has released in Yemen have joined the ranks of anti-American terrorists.

Eight years ago, the Pentagon began taking into custody people around the world it suspected of being terrorists and transporting them to its prison camp at Guantánamo, where they have been incarcerated without trial and tortured and abused.

Why Cuba? Because the Pentagon felt that by setting up its prison camp and judicial system in Cuba, rather than the United States, it would be free of any constraints of the Constitution and any interference by U.S. federal courts. (Yes, that is the same Constitution that Pentagon officials purportedly promise to support and defend.)

But the U.S. Supreme Court ultimately held that the Pentagon’s Cuba camp was not a Constitution-free zone after all and that U.S. federal courts had jurisdiction over its operations. It allowed the Pentagon’s prisoners to file habeas corpus proceedings, whereby the Pentagon would be required to show cause why it is holding the prisoner.

At this point, the Pentagon had three options:

(1) It could charge and prosecute the prisoner for terrorism in its kangaroo military-tribunal system.

(2) It could transfer the prisoner to the United States for trial in U.S. district court.

(3) It could release the prisoner.

It is important to note here that no one has forced the Pentagon to employ Option 3. If it had wanted, it could have employed Options (1) or (2).

But the Pentagon, on its own volition, chose to exercise Option 3 on a number of the prisoners it had arrested, incarcerated, tortured, and abused for some 8 years.

Why would it do that? Why wouldn’t the Pentagon have at least chosen Option 1, where it would have been fairly easy to secure a criminal conviction in the Pentagon’s kangaroo-court system?

There can be only one possible answer: The Pentagon had no evidence whatsoever that the released prisoners were guilty of terrorism. All the Pentagon had was its hunches and suspicions or evidence so ludicrous that it wouldn’t even convince a kangaroo military tribunal.

That suggests that some of the prisoners at Guantánamo have been entirely innocent of any terrorism whatsoever — innocent people swept up in a vicious, evil system, one in which there are no legitimate trials by which guilt or innocence can be established.

Consider, after all, what the purpose of a trial is: to determine whether there is sufficient evidence to support a finding, beyond a reasonable doubt, that a person really is guilty of the offense that he’s accused of.

Does the government wrongfully accuse people of crimes? Of course. No one can deny that. Every month, there are verdicts of acquittal in federal criminal prosecutions. By their verdict of acquittal, the jury is either saying that the person accused of the crime is innocent or that the government failed to produce enough evidence to support a finding of guilt.

When conservatives point to the fact that released Gitmo prisoners are joining the terrorists, they automatically assume that the released prisoners were, in fact, guilty of terrorism. What they miss in all this is that the Gitmo experience itself would be enough to drive innocent people to join the ranks of those who wish to retaliate against the United States.

In fact, it’s that possibility that is now motivating conservatives to demand that no more prisoners be released from Guantánamo, including any innocent ones. The idea is this: “Sure, they’re innocent. But they’re so angry now over what we’ve done to them that we can’t afford to release them because they’ll come back and retaliate against us for what we did to them.”

But conservatives are wrong. Anyone accused of terrorism or any other federal crime deserves to be charged and prosecuted in U.S. district court or released. If he’s acquitted, he deserves to be released, no matter how convinced prosecutors are that the jury was wrong. That’s what America’s constitutional judicial system is all about. That’s the system bequeathed to us by the Framers. It is a system in which we should take great pride.

As we have argued here at FFF from the inception, the Pentagon’s Guantánamo prison camp and kangaroo-justice system should never have been established and should be shut down immediately. The Pentagon has caused enough damage to Americans, to foreigners, and to our system of constitutional justice. And continuing to hold innocent people without trial out of fear that they might strike back out of anger and revenge for what has been done to them is inconsistent with basic principles of morality and justice.

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.