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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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Who Needs Trials?

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The Washington Post has just published an op-ed that pretty much sums up where we’ve arrived as a country, post-9/11, thanks to both conservatives and liberals. The op-ed is entitled “KSM’s Dispensable Trial” and is co-authored by Jack Goldsmith, who served as an assistant attorney general in the Bush administration, and Benjamin Wittes, who serves as research director in public law at the Brookings Institute. Both of them are also associated with the Hoover Institution.

Goldsmith and Wittes have come up with an ingenious way to resolve the standoff as to whether Khalid Sheikh Mohammed and the other alleged Sept. 11 conspirators should be tried in a military tribunal or in federal court. Their solution? No trial at all! Just let the military keep them incarcerated for the duration of the war on terrorism, which would essentially amount to life sentences.

As audacious as the proposal might sound, it actually is quite logical, once one has bought into the war-on-terrorism paradigm.

What Goldsmith and Wittes are saying is that the war on terrorism is a real war, just like World War I and World War II. Therefore, since prisoners of war in a real war can be kept incarcerated until the war is over, there’s no problem with holding terrorists until the war on terrorism is over, which isn’t likely to happen for a few decades.

They also point out that even if the suspects were to be acquitted in either federal court or by military tribunal, the feds wouldn’t release them anyway. Why? Because they’re alleged terrorists who are waging war against the United States. Thus, if they’re not going to be released anyway, Goldsmith and Wittes say, then what’s the point of having a trial?

One interesting aspect of the op-ed is a particular adjective that the authors employ in the very first sentence of the article. The adjective is “alleged.” They refer to “Khalid Sheikh Mohammed and the other alleged September 11 conspirators.”

Why would they use that adjective? It seems to me that the use of that adjective expresses some degree of doubt as to whether the people they want incarcerated for life without a trial are actually guilty. Why not simply describe them as “the September 11 conspirators” or as “the terrorists”?

What Goldsmith and Wittes seem to be saying is: “We don’t need no stinking trial to determine whether these people really are guilty of terrorism. It doesn’t matter whether they’re guilty or not. We’re at war and we’ve got to put our total faith in our government to make this determination without a trial. If innocent people are incarcerated for the rest of their lives, so be it, especially if by doing so we’re kept safe. ”

An obvious problem arises, one that Goldstein and Wittes do not address: What about alleged Americans terrorists? The issue is simple: Why should alleged American terrorists be treated any differently than alleged foreign terrorists? After all, an alleged terrorist is an alleged terrorist, right? Just ask Goldsmith himself. He was serving in the Justice Department when the U.S. military was doing to an alleged American terrorist precisely what Goldsmith and Wittes now claim should be done to alleged foreign terrorists — incarcerating him indefinitely and denying him a trial — and, of course, claiming the war-on-terrorism authority to do the same to every other American alleged to be a terrorist.

Another problem that Goldsmith and Wittes fail to address is one relating to the U.S. Code, the statute book that enumerates the federal criminal offenses enacted by Congress. It includes terrorism among the federal crimes, which is precisely why alleged terrorists have traditionally been prosecuted in U.S. District Court.

Presumably, Goldsmith and Wittes would say that the U.S. Code provisions on terrorism have become moot because, they would say, U.S. officials have the power to convert criminal offenses into a real war, as they did after the 9/11 attacks.

But that obviously raises another big problem: Where does such a power come from? It’s certainly not included in my copy of the Constitution. I wonder what Goldsmith’s and Wittes’ position would be if the feds decided to do the same thing in the war on drugs. After all, as Mexican officials will attest, the alleged drug lords are killing many more people than the alleged terrorists. Would it be acceptable for U.S. officials to suddenly convert drug offenses to acts of war, enabling them to circumvent trials and the Bill of Rights for those crimes too?

By the way, Pakistani officials have decided to charge and prosecute those five young Americans who traveled to Pakistan to allegedly become terrorists. As bad and corrupt as the Pakistani judicial system must be, the men ought to be counting their lucky stars. At least in Pakistan, they get a trial.

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.