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The Pentagon’s Bizarre “Judicial” System

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The Pentagon’s legal response to Lt. Col. Darrel Vandeveld’s crisis of conscience shows, once again, what a farce the “judicial proceeding” is that it has established at Guantanamo Bay, Cuba. Vandeveld, a military prosecutor and a devout Catholic, came to the realization that he could no longer participate in the Pentagon’s system, partly because the military was violating longstanding ethical rules that require the prosecution to turn over exculpatory evidence to the defense.

In response to Vandeveld’s charges, the Pentagon decided to dismiss the charges against the defendants. Ordinarily one might think that the defendants would consider a dismissal of charges against them to be a good thing, Not so in the bizarre land of Guantanamo Bay. The dismissal of the charges only serves to continue the indefinite confinement of the defendants.

Let’s compare two systems: the American judicial system and the Pentagon’s “judicial” system in Cuba.

In the U.S. system, the Bill of Rights guarantees the accused a speedy trial. The reason that the American people required that the speedy-trial guarantee be included in the Bill of Rights was to prevent the federal government from doing precisely what the Pentagon is doing to people in Cuba — imprisoning them indefinitely. Without such a guarantee, the government could arrest, incarcerate, and charge people with crimes but then never bring the case to trial, leaving them to languish indefinitely in jail.

In the American system, the prosecution cannot dismiss an indictment without the permission of the presiding federal judge, whose lifetime appointment makes him independent of executive-branch control. The judge can refuse to grant the government’s motion to dismiss or he can grant it “with prejudice,” which means that the government is prohibited from ever charging the defendant with those particular crimes again.

Consider, for example, the case of Ali Saleh Kahlah al-Marri, a so-called enemy combatant who is being held in the same dungeon in South Carolina that Americans Jose Padilla and Yaser Hamdi were also imprisoned as “enemy combatants.” Al-Marri began as an ordinary criminal defendant in federal district court. On the eve of trial, the Justice Department filed a motion to dismiss the charges so that they could turn him over to the Pentagon for treatment as an “enemy combatant. The judge granted the motion but “with prejudice,” meaning that if the Supreme Court were to reject the “enemy combatant” doctrine, the government would be precluded from re-filing the original criminal charges against al-Marri. With his dismissal “with prejudice,” the presiding judge was protecting al-Marri’s right to a speedy trial by effectively saying to the prosecutors, “Try him now or never try him again.”

In the Pentagon’s system at Guantanamo, everyone is considered an “enemy combatant” and a criminal defendant at the same time. As criminals they are subjected to one of the most bizarre “judicial” systems that have ever been invented, one whose principles, ironically, are exactly opposite to those in the American system.

The prisoners, for example, are incarcerated indefinitely, with no guarantee of a speedy trial or any trial at all. That’s not to say that there isn’t a trapping of a “judicial” system. Defendants are charged with crimes, for example, mostly crimes pertaining to terrorism, but there’s no requirement that the trial ever be held. Even when a trial is scheduled, on the eve of trial the prosecutors can simply have the charges dismissed, with the intent of re-filing them at some indefinite time in the future. Since the judges are military personnel answerable to their superiors in the Pentagon, they generally go along with what the prosecutors want, including granting their motions to dismiss “without prejudice” to their filing them sometime in the future.

Perhaps most bizarrely, even if the accused is acquitted, which is an unlikely prospect given that the jurors are also military personnel, the Pentagon still doesn’t have to release him, unlike the American system where an acquittal results in the immediate release of the defendant. Under the Pentagon’s bizarre “judicial” system, the acquittal of an accused only affects his status as a “criminal defendant,” not his status as an “enemy combatant.”

We should never forget why the Pentagon established its prison camp in Cuba — for the precise purpose of avoiding the principles of the American judicial system, including the Constitution, and for the express purpose of establishing its own independent “judicial” system. While all the people at the Guantanamo prison camp are foreigners, the Pentagon now wields the post-9/11 power to sweep all American citizens into its bizarre system, as we have learned in the cases of Padilla and Hamdi. What a shame that the American people have permitted the Pentagon to hijack the greatest judicial system in history and subject people to one of the most bizarre “judicial” systems in history.

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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.