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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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Torture and Kangaroo Justice Are Un-American

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Justice Scalia’s remarks about torture reflect a fundamental problem with conservative judges. While oftentimes sound on economic liberty, they are absolutely atrocious with respect to civil liberties.

Scalia’s approval of torture in certain circumstances ignores an important point that every first-year law student learns in his constitutional law course: that people are presumed innocent until proven guilty in a court of law — and, equally important, are sometimes adjudged innocent when the trial is ultimately held.

In other words, when the government takes someone into custody and begins torturing him, how do we know that that person is deserving of torture or has important information that can be tortured out of him? Ordinarily, we don’t permit the government to determine the guilt or innocence of a person it is accusing of a crime. That’s the very purpose of the trial.

Yet, under Scalia’s reasoning on torture (and under the government’s reasoning), that basic principle is thrown out the window. Scalia effectively says, “While a trial will later determine whether the accused is guilty or not, we must vest the government with the pre-trial power to torture anyone it suspects of being guilty, despite the fact that a trial may later confirm that the person was in fact innocent.”

How’s that for a bit of judicial nonsense?

After all, if we’re going to have that much faith in the government, then why not dispense with a trial altogether? Why not simply let the government decide not only who is worthy of pretrial torture but also who is guilty of the crime?

While on the subject of torture, I would remiss if I didn’t comment on the Pentagon’s latest antics with respect to its aberrant and dysfunctional kangaroo tribunal system in Cuba.

After some six years of delays, the U.S. military has announced that it will finally hold a “trial” for six accused terrorists at its Guantanamo Bay prison camp. In a press briefing regarding the upcoming “trial,” Air Force Gen. Thomas Hartmann remarked on the importance of complying with “the rule of law.”

Sorry, General, but that’s already impossible. What “the rule of law” means is that everyone accused of the same crime answers to the same law and is accorded the same process as everyone else.

In the “war on terrorism,” however, the government has the discretion to determine whether a suspected terrorist is accorded either the federal-court route or the kangaroo military-tribunal route.

Don’t forget that Zacharias Moussaoui (one of the military’s 20th hijackers on 9/11), Yaser Hamdi, Jose Padilla, Timothy McVeigh, and many other accused terrorists have been accorded the federal-court route. The accused terrorists at Guantanamo are being railroaded down the kangaroo military-tribunal route.

It all depends on the discretion of government officials. That’s precisely what “the rule of law” is intended to avoid. The Pentagon’s system constitutes “the rule of men,” which holds, “We’ll decide which route you’re going to get.”

The Pentagon has also announced how it intends to get around the problem arising from its torture of the defendants in its upcoming “trial.” Ordinarily in a criminal case, coerced confessions are not admissible into evidence. To surmount that obstacle, government officials returned to the defendants and got them to admit their crimes, this time without being tortured.

So, the government’s rationale is that the confessions should be admitted into evidence because they were adduced without torture the second time they were made. Never mind, of course, that the defendants had presumably already sung like canaries while being tortured and, therefore, there was no reason for them to withhold the information, especially since they knew what would likely happen to them if they didn’t talk “voluntarily” the second time around.

But let’s follow the logic of the government’s position. If the initial torture had no effect on the subsequent confessions and if the government secured everything without torture that it did with the torture, then wouldn’t that be rather conclusive proof that the torture of the defendants was unnecessary?

Faithfully and obediently following the orders of the president, the Pentagon has brought shame and disgrace upon our country, not only by invading and occupying a country that never attacked the United States, not only by establishing a regime that has led to torture and sex abuse of prisoners and detainees, but also by hijacking America’s criminal-justice system and establishing an alternative, anti-constitutional system of kangaroo military “justice” in Cuba. Unfortunately, the Pentagon’s mockery of all that is right and just continues.

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.