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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 Presumption of Innocence at Gitmo?


During the Senate’s confirmation hearings for Brett Kavanaugh, President Trump’s nominee for the Supreme Court, Trump emphasized the importance of the principle of the presumption of innocence. When people began accusing Saudi Arabian Crown Prince Mohammad bin Salman of having orchestrated the assassination of Jamal Khashoggi, Trump, referring back to Kavanaugh, chastised people for, once again, forgetting about the principle of the presumption of innocence.

Okay, so let’s assume for argument’s sake that Trump has suddenly become an ardent defender of the civil-liberties principle of the presumption of innocence.

Such being the case, a question naturally arises: Why has Trump permitted the U.S. national-security establishment to continue using the principle of the presumption of guilt for people it has incarcerated in its prison center at Guantanamo Bay, Cuba? During the entire two years that he has been in office, Trump has failed to issue an order to the Pentagon and the CIA to adopt the presumption of innocence principle at Gitmo.

What gives with that? Why express a commitment to the principle of the presumption of innocence for his two friends, Kavanaugh and bin Salman, but not extend that commitment to the people who have been jailed at Gitmo under the presumption that they are guilty of terrorism?

In fact, one of the dark ironies of the Pentagon-CIA “judicial” system at Gitmo is that it more closely resembles the “judicial” system in Saudi Arabia, which is ruled by a brutal dictatorial regime, than the judicial system here in the United States.

In fact, I wonder how many Americans realize why the Pentagon and the CIA decided to establish their prison camp and “judicial” system in Cuba rather than somewhere in the United States. The reason was that they wanted their prison camp and “judicial” system to be based on principles that were opposite to the principles of the judicial system here in the United States. But they knew that if they established such a system within the United States, there was the possibility that the Supreme Court would rule it unconstitutional. So, from the very beginning their plan was to establish their prison camp and “judicial” center in Cuba and then argue that the Supreme Court didn’t have jurisdiction over matters occurring in Cuba.

That’s how America has ended up with a system in which terrorism defendants have been incarcerated for more than a decade without a trial, much less a jury trial, which the Bill of Rights guarantees for criminal defendants in our judicial system here at home. At Gitmo, the Pentagon and the CIA are able to keep defendants incarcerated forever without even according them a trial.

Ironically, even in Saudi Arabia, people get “trials.” They are not jury trials, like here in the United States. Instead, the trials are before judges or tribunals. That’s also the way that trials would work at Gitmo, if they were ever willing to let the Gitmo defendants have trials. The Gitmo “trials” would be by military tribunals, not by a jury of the defendant’s peers, like here at home. But like the Saudi “trials,” the results would be pre-ordained. There is no way that any Gitmo defendant, just like any Saudi defendant, is going to be permitted to rebut and overcome the presumption of guilt.

There is also torture to consider, something that both the Saudis and the U.S. national-security establishment engage in. When U.S. and Saudi officials presume a person guilty, then they obviously see nothing wrong with torturing him. Their mindset is: What’s wrong with torturing a guilty person? Of course, as we all well know, our American ancestors prohibited U.S. officials from ever subjecting anyone, before trial or even after conviction, to any cruel and unusual punishments.

When our American ancestors were fighting for a Bill of Rights to be attached to the original Constitution, critics responded that it was unnecessary because our government officials would never do the types of things the Bill of Rights prohibits. I wonder what those same critics would say if they could see what the Pentagon and the CIA have wrought with their prison camp and “judicial” center in Cuba.

So, Trump has ostensibly become a born-again advocate of the principle of the presumption of innocence and perhaps even civil liberties in general, as reflected by his defense of his two good friends, Brett Kavanaugh and Mohammad bin Salman. Given such, why has he continued to permit the Pentagon and the CIA to continue doing the opposite in Cuba? Oh well, as we all know, when it comes to principle no one has ever accused Republicans or conservatives of being consistent.

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.