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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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Movement in the Right Direction in Terrorism Cases


We libertarians just might be winning the battle over whether terrorism cases belong exclusively in federal court, as compared to a dual system in which the feds can, at their option, prosecute suspected terrorists in the Pentagon’s “judicial” system at Guantanamo Bay.

Keep in mind that the debate is not whether the constitutional system should be discontinued in terrorism cases. Since 9/11 the feds have used the constitutional system to indict and prosecute many people accused of terrorism, and they continue to do so. Instead, the debate is whether U.S. officials should be able to use an alternative system — that is, the Pentagon system — as an optional alternative to the federal court system.

Long-time supporters of FFF know that ever since the inception of the Guantanamo system, we have steadfastly opposed this dual judicial system, arguing that under our system of government, like it or not, people accused of federal crimes must and should be prosecuted in U.S. District Court. The Pentagon’s alternative judicial system, we have argued, is nothing more than an end-around of the Bill of Rights and the Constitution, ironically by people who take an express oath to support and defend these documents.

Moreover, we have long argued that this dual, optional system for prosecuting suspected terrorists violates the rule of law and the principle of equal treatment under law.

As a reflection that things might be moving in the right direction, consider this excellent article published yesterday in the Detroit Free Press by two former U.S. Attorneys, who argue that the federal courts are the only proper venue for terrorism cases and who reject calls to turn the alleged would-be Detroit airline bomber over to the military. They write:

“As former U.S. Attorneys for the Eastern and Western Districts of Michigan, we are confident in the ability of the federal justice system to handle the trial of Abdulmutallab and any other terrorism suspect. During our time at the U.S. Department of Justice, we never felt the need to stray from our traditional justice system to prosecute those responsible for heinous crimes. There is no need to start now.”

“Using indefinite detention and military commissions constitutes a troubling departure from our constitutional principles. As U.S. Attorneys, we took an oath to support and defend the Constitution and to protect the core values of our society. Critics of using our federal justice system to try terrorism suspects propose to simply cast aside our values in exchange for the appearance, but not the reality, of safety.”

Moreover, consider the following “Beyond Guantanamo: A Bipartisan Declaration (pdf),” which is signed by dozens of prominent people, many of whom are former federal officials, and many of whom are lawyers, which declares in part:

“Prosecutions for terrorism offenses can and should be handled by traditional federal courts, which operate under statutes and procedures that provide the tools necessary to try such complex cases. Moreover, the War Crimes Act explicitly gives federal courts jurisdiction to try certain war crimes.”

“We believe it is unconstitutional to detain indefinitely terrorism suspects in the United States without charge, either for the purposes of interrogation and intelligence-gathering or solely on the basis of suspected dangerousness. There are limited times when preventive detention, subject to required procedural protections, is appropriate in the context of armed conflict. However, the continued detention without charge of the detainees remaining in Guantanamo is not appropriate and is contrary to American values.”

In the fear-laden climate following the 9/11 attacks, the Bush-Cheney regime induced many Americans to surrender the rights and guarantees in the Constitution and Bill of Rights by supporting an optional, Constitution-free military “judicial” system in Cuba. As our Founding Fathers understood so well and as Americans have now discovered, those who trade freedom for safety get neither freedom nor safety.

Fortunately, public opinion might now be trending in the opposite direction — one in which Americans demand restoration of their rights and freedoms in the Bill of Rights.

Best of all, of course, would be a movement toward ending the U.S. government’s wrongful actions overseas, which stir up so much anger for our country, which inevitably manifests itself in the form of terrorist attacks, which U.S. officials then use as an excuse for suspending our rights and freedoms and for expanding the ever-growing budgets of those operating in the military-industrial complex.

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.