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Bush’s Reluctant Embrace of Civil Liberties


Bowing to public pressure, the Bush administration has agreed to modify its rules for its military trials of accused terrorists captured abroad. Included among the new rules are: (1) the accused will be presumed innocent rather than guilty; (2) the accused will have the right to have an attorney represent him; (3) the government will be required to prove the defendant’s guilt beyond a reasonable doubt; and (4) the defendant will not be required to testify or incriminate himself.

Where did the Bush administration get these principles? From the Bill of Rights to the U.S. Constitution, which protects people accused of crimes here in the United States from overzealous prosecutorial abuse.

Unfortunately, however, the new rules continue the administration’s contempt for two vitally important principles of due process of law: trial by jury and the right to confront and cross-examine witnesses, both of which are fundamental guarantees enshrined in the Bill of Rights.

Steadfastly maintaining that only military officers (who work for the president) will decide the guilt or innocence of the accused, the Bush administration continues to show contempt for trial by jury, a judicial concept that stretches all the way back to Magna Carta. As the great 18th-century legal jurist Sir William Blackstone put it, trial by jury is the “palladium” or the “bulwark” of a free society.

Why won’t Bush permit ordinary citizens to decide the guilt or innocence of the accused? Because he doesn’t trust them to deliver the “right” result, which is a conviction. In fact, that’s the reason that tyrants throughout history have opposed jury trials in criminal cases. In his famous Commentaries on the Constitution of the United States (1833), the noted jurist William Storey observed:

“The great object of a trial by jury in criminal cases is, to guard against a spirit of oppression and tyranny on the part of rulers, and against a spirit of violence and vindictiveness on the part of the people…. In such a course there is a double security against the prejudices of judges, who may partake of the wishes and opinions of the government, and against the passions of the multitude, who may demand their victim with a clamorous precipitancy.”

Also included among the new rules for Bush’s military tribunals is the right of the accused (or his attorney) to confront and cross-examine witnesses, a right guaranteed in American criminal prosecutions by the Sixth Amendment.

But the Bush administration is being disingenuous in granting that particular right to the accused. Why? Because the government steadfastly continues to hold that hearsay evidence will be admissible at trial.

What is hearsay? It is a statement made out of court and not under oath that is being repeated by another person on the witness stand. The reason that U.S. courts will not permit hearsay to be used in a criminal case is that it denies the accused the opportunity to confront and cross-examine the person who actually made the statement.

For example, let’s assume that Smith tells Jones, “I saw the defendant at a meeting of terrorists.” Jones takes the stand, and says, “Smith told me that he saw the defendant at a meeting of terrorists.” The accused will be able to cross-examine Jones, but how effective is that? All he can question is whether in fact Smith made the statement to Jones. The really damaging evidence is the statement by Smith, and Smith is not there to be cross-examined as to the truthfulness of his allegation.

Thus, the use of the hearsay denies the accused the opportunity to cross-examine Smith. That’s why the Sixth Amendment (and fundamental principles of due process of law) requires the government to put Smith on the stand to make his statement, after which he and his testimony can be subjected to cross-examination by the accused or his attorney.

At the risk of belaboring the obvious, the reason that the Bush administration has elected to hold its military trials at its military base in Cuba, rather than in the United States, is that it doesn’t want its prosecution of accused terrorists captured abroad to be constrained by the U.S. Constitution and its Bill of Rights. Perhaps it’s appropriate that the military tribunals are being held in Cuba, given the enormous contempt that the Castro regime also has for such important principles as civil liberties and constitutional restraints.

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    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.