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The Pentagon’s Judicial System is Like Castro’s


The case of a Maryland man named Alan Gross shows how much the U.S. military has altered the course of U.S. criminal and constitutional law since 9/11, and not in a good way.

Gross is a technology expert who was arrested by Cuban officials and charged with spying after being caught distributing cell phones to groups in Cuba. He was working as a consultant to a State Department contractor that had received an $8.6 million contract from the Agency for International Development, an agency long known for its close ties to the CIA. The U.S. government has denied that Gross works for the CIA but, of course, such a denial doesn’t mean anything because U.S. officials would deny that Gross was a CIA employee if it were true. And of course, we are all aware of the U.S. government’s 50-year-old obsession with trying to effect regime change in Cuba, especially through the CIA.

There are indications that Cuba is trying to work a trade — one in which they release Gross in return for the U.S. government’s release of five Cuban agents who were tried and convicted of “spying” for trying to uncover terrorist plots in Miami against Cuba.

Even since he was arrested, Gross has been sitting in a Cuban jail. There is nothing that he can do to get out, and there is nothing the U.S. government can do to get him out, short of another invasion of the island.

Let me repeat that: There is nothing Gross can do to get released from that Cuban jail. He must continue to sit there indefinitely, possibly for the rest of his life. He is stuck. In fact, the Cuban government could even execute him, even though it would undoubtedly have some sort of show trial before doing so.

Could such a thing happen in the United States? Not under our constitutional order. The Framers ensured that what the Cuban authorities have done to Gross could never happen here in the United States.

Suppose, for example, the U.S. government had treated the Cuban Five as the Cuban government has treated Gross. Suppose the U.S. government had simply said, “We’re holding these Cubans for as long as we want.”

Under our constitutional order and legal framework, U.S. officials couldn’t get away with it. The Cuban prisoners would first retain a criminal-defense lawyer to represent them. He would immediately file a petition for writ of habeas corpus with a U.S. district judge.

The judge would issue the writ, commanding U.S. officials to bring the Cuban Five to his courtroom and show cause why they are being held. If U.S. officials disobeyed the order, the judge would issue a warrant for their arrest.

Once U.S. officials produced the Cuban prisoners, they would have to show some degree of evidence establishing that the Cuban prisoners had broken federal law. If they failed to do so, the judge would order their release.

But even if U.S. officials satisfied the judge with some evidence establishing that the prisoners had broken the law, that wouldn’t be the end of the story. While the habeas corpus petition would be denied, the prisoners’ lawyer would demand a speedy trial for their clients

After a grand jury indictment accusing them of a crime, the Cuban prisoners would be entitled to have a jury, not the judge, decide their guilt. At the trial, the prisoners’ lawyers would have the right to confront the witnesses against them and cross-examine them. The judge would not permit illegally acquired evidence to be introduced. The prisoners could not be forced into testifying but could do so if they wished.

The judge would tell the jury that they were required to presume that the prisoners were innocent and could convict only if the evidence convinced them of guilt beyond a reasonable doubt.

Finally, the prisoners would be entitled to appeal any mistakes made by the judge to the federal Court of Appeals and the U.S. Supreme Court.

Do you see the differences between the Cuban judicial system and the U.S. judicial system? In the Cuban system, a person accused of a crime has no chance of being freed from his confinement. In the United States, thanks to the Framers, he does have a chance.

What’s this have to do with the U.S. military?

After 9/11, the U.S. military established its own independent judicial system — ironically, in Cuba — to run parallel to the judicial system established by the Constitution here in the United States. The Pentagon’s system was designed to be limited to prisoners accused of the federal crime of terrorism, but there was certainly no inherent reason why the Pentagon’s jurisdiction could not later be extended to other federal crimes, such as possession or distribution of illicit drugs. The federal courts would continue to have concurrent jurisdiction over terrorism cases, but the government would now have the option of deciding which forum a suspected terrorist would be sent to.

The Cuban judicial system could easily have served as a model for the Pentagon because as a practical matter they both operated the same way. Like the Cubans have done to Gross, the U.S. military now wielded the authority to take anyone it wished into custody and imprison him for as long as the military wanted. The system was designed to be totally independent of the U.S. Constitution, with no recognition for habeas corpus, the right to an attorney, due process of law, speedy trials, trial by jury, and right to confront and cross-examine witnesses. If the military ever did conduct a trial, especially as a prelude to executing the accused, it would be nothing more than a show trial because the verdict, which would be rendered by military officials, would be preordained and could even be based on evidence acquired by torture.

It’s appropriate that the Pentagon established its new-fangled judicial system in Cuba, rather than in the United States, because the judicial principles that underlie the Pentagon’s system are the same as those under which the Cuban authorities have imprisoned Alan Gross.

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.