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Hating the Constitution

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Suppose the Chinese people were able to overthrow their communist regime and install a democratic republic. Suppose the new Chinese officials asked Americans to help them implement a new criminal-justice system for China.

Some Americans would recommend that China adopt such criminal-justice principles as right to counsel, right to confront witnesses, right to due process of law, right to bail, right to speedy trial, right to habeas corpus, and trial by jury. The reason they would do so is because they believe that these principles are correct, just, and moral — and that they are among the best defenses to tyranny, communist or otherwise.

Other Americans, however, would recommend that China reject the criminal-justice principles in the Constitution and the Bill of Rights. They would recommend such things as tortured confessions, hearsay, secret evidence, secret trials, denial of effective assistance of counsel, and tribunals. In other words, some Americans would recommend the same type of criminal-justice system that the Chinese communists employed.

How do we know this?

Because we know what Pentagon officials did when they thought they were freed of any constitutional restraints and any federal-court interference with their operations at Guantanamo Bay. When free to construct what they considered would be a model judicial system, they rejected the principles found in the Constitution and the Bill of Rights and adopted criminal-justice principles that have been employed in such countries as the Soviet Union, Nazi Germany, North Korea, and Cuba.

Conservatives often jump to the conclusion that all the detainees the Pentagon has jailed at Guantanamo are guilty of terrorism. Let’s leave aside the fact that the Pentagon has voluntarily released many detainees over the course of 6 years, which would imply that mistakes have been made. Let’s focus on the prisoners who are still being held.

In setting up what it considers to be a model judicial system for prosecuting the detainees, the Pentagon makes an implicit assumption: that they might not, in fact, be guilty of terrorism. Assuming that the proceedings at Guantanamo are not simply show trials designed to cover up illegitimate executions, they are presumably intended to accomplish what federal-court prosecutions are intended to accomplish: to make a factual determination as to whether the accused actually did commit a criminal act of terrorism.

One searches in vain in the Guantanamo process for such rights as trial by jury, right to effective assistance of counsel, speedy trial, right to confront witnesses, right to compulsory process for witnesses, right to a public trial, right to habeas corpus, and right to due process of law.

Why is this? Why would the Pentagon, when it was free to establish a model judicial system for prosecuting terrorists, reject the criminal-justice principles set forth in our very own Constitution and Bill of Rights?

The answer is unavoidable: The Pentagon holds the Constitution and the Bill of Rights in disdain and exalts instead the criminal-justice principles found in such countries as the Soviet Union, Nazi Germany, North Korea, and Cuba, where officials embraced such things as tortured confessions and evidence, denial of speedy trial, indefinite incarcerations, secret evidence and secret trials, tribunals, and denial of trial by jury, the right to cross-examine witnesses, effective assistance of counsel, and due process of law.

Let’s not forget, after all, the very reason that the Pentagon set up its prison camp in Cuba — so that it would be free of all constraints in the Constitution and the Bill of Rights and free of interference from the federal judiciary that the Constitution established. Why would Pentagon officials do that if they genuinely admired the principles found in the Constitution and the Bill of Rights? If they believed in such principles, wouldn’t they wish to see them applied universally?

Thanks to our American ancestors, the United States brought into existence the greatest criminal-justice system in history. It is far from perfect, but it has been the greatest protector of the innocent ever established. By rejecting the criminal-justice principles set forth in the Constitution and the Bill of Rights, the Pentagon reflects its deeply seated disdain for our heritage of law and liberty.

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.