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Why No Military Tribunal for Casey Anthony?


In the wake of the jury’s verdict of acquittal in the Casey Anthony murder trial, the obvious question arises: How about letting the states employ the U.S. military’s tribunal system in murder cases, well at least in those cases in which the state is not sure it can secure a guilty verdict from a jury?

Wouldn’t that make us safer?

After all, that’s what the feds did in terrorism cases. After the 9/11 attacks, they unilaterally decided that they would have the option of sending terrorist suspects down two alternative roads — the federal court road and the military “enemy combatant” road.

The federal court road was the traditional one established by the Constitution. That’s the one that treats terrorist suspects as accused criminals, given that terrorism has long been defined as a federal crime in the U.S. Code. This is the road that leads to federal grand-jury indictments, a federal court prosecution, and all the rights and guarantees provided by the Bill of Rights.

The federal court route entails the right of trial by jury, the presumption of innocence, the exclusion of irrelevant and incompetent evidence, and a prohibition against cruel and unusual punishments.

It also involves the possibility that a jury of ordinary citizens will find that the government has failed to prove the guilt of the accused terrorist beyond a reasonable doubt.

That’s apparently what happened in the Casey Anthony case. While lots of people across the country are convinced that Anthony did, in fact, murder her child, that’s not enough under our system of justice, both at the state and federal level. It’s not even enough even if the jury itself was convinced that the woman was guilty. What matters is whether the state was able to prove the woman’s guilt to the satisfaction of the jury beyond a reasonable doubt with relevant and competent evidence. The jury apparently believed that the state had failed to meet that burden.

So, to get around that in terrorism cases, after the 9/11 attacks the feds simply decreed that they would have the discretionary authority to treat suspected terrorists as either accused criminals or as enemy combatants.

Under the enemy-combatant designation, the accused gets sent into the post-9/11 “judicial” system that the Pentagon created at Guantanamo Bay. That system makes it virtually certain that the feds will secure a conviction. The defendants are presumed guilty. It’s easy to torture confessions out of them or to torture others into providing evidence against them. Best of all, no one has to convince ordinary citizens of the defendant’s guilt beyond a reasonable doubt. Guilt is determined by a group of loyal, patriotic military officials who obediently answer to superior military officers.

In the event the feds are faced with no evidence in a military tribunal, no problem. They can and do just drag their feet for years in bringing the person to trial. Unlike the federal court system, which is bound by the Constitution and the Bill of Rights, there is no requirement in the military-tribunal system to have a speedy trial.

Thus, the unlucky ones get the enemy-combatant treatment and the more fortunate ones get the criminal-defendant treatment. Obviously, the difference in treatment is like night and day.

But under President Obama, the feds are now integrating both systems. TheNew York Times today is reporting that a Somali citizen has been indicted in federal district court for terrorism. Yet, he’s been held and interrogated for two months by military officials as an enemy combatant.

So, why shouldn’t the states follow the lead of the feds and declare a “war on murder,” just as the feds did in declaring a “war on terrorism”? Or how about a “war on drugs,” bringing in the military and sending all drug suspects to Guantanamo Bay for enemy-combatant treatment? Better yet, how about simply declaring a general “war on crime”? That would enable the states to turn over all criminal suspects who it might have difficulty convicting to Guantanamo Bay for the military enemy-combatant treatment.

After all, does anyone doubt that the CIA and the Pentagon could have secured a confession out of Casey Anthony, especially if they waterboarded her a few hundred times or subjected her to sensory deprivation, stress positions, the rack, or other harsh interrogation? As a matter of fact, maybe it’s not too late, given that the U.S. military now wields the power to ignore jury verdicts of acquittal in federal court terrorism cases and take the accused into custody, just like the Gestapo did in Nazi Germany.

Oh, gosh, I hope I haven’t given state prosecutors any ideas.

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.