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Guantanamo and the Bill of Rights

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When one considers the Bill of Rights, an obvious question arises: Why did our American ancestors demand the enactment of the Fourth, Fifth, Sixth, and Eighth Amendments?

The answer is simple: Our ancestors believed that in the absence of those amendments, U.S. officials would end up subjecting people to the types of things that those amendments restricted. That is, if there was no Bill of Rights, U.S. officials would be jailing people indefinitely, torturing them, killing them, and mistreating them, all without such procedural guarantees as trial by jury, protection against forced confessions, the right to have a defense attorney, the right to a speedy trial, the right to cross examine witnesses and to summon witnesses, the right to be formally notified of criminal charges, the right to be free of cruel and unusual punishments, the right to be free of unreasonable searches, and the right to due process of law.

Of course, there are those today who would argue that our American ancestors were being paranoid. Federal officials would never do such things, they would suggest, especially to the American people. After all, they would point out, federal officials are Americans too. Moreover, they swear an oath to support and defend the Constitution. The Fourth, Fifth, Sixth, and Eighth Amendments are antiquated and superfluous, they would say, because U.S. officials would follow the principles enunciated in those amendments without being required to do so by the Bill of Rights.

Unfortunately, however, those who say such things are woefully misguided. The fact is that our ancestors were brilliant in foreseeing that those amendments were absolutely necessary. In the absence of those amendments, there is no doubt that federal officials would be doing the things that those amendments meant to restrict.

How do we know this? We know it because of what federal officials have done in Cuba, Iraq, and Afghanistan.

Consider the Pentagon’s and CIA’s prison and judicial system at Guantanamo Bay. In the beginning, the Pentagon and the CIA took the position that Gitmo would be entirely independent of the Constitution and the federal judiciary. It claimed the authority to establish its version of an ideal prison camp and judicial system without any outside interference.

What type of system did the Pentagon and the CIA establish when they were setting up what they considered to be a model prison and judicial system? Wouldn’t you think that the system would be one that would be modeled after the one that our American ancestors chose?

Well, it was the exact opposite. When the Pentagon and the CIA were free to establish their model system in Cuba, they adopted a system that was totally contrary to the principles found in the Fourth, Fifth, Sixth, and Eighth Amendments. In fact, the irony is that the system that the Pentagon and the CIA established in Cuba mirrors the system set up by Castro and the communists on the rest of the island.

Consider, for example, the right to a speedy trial. Our ancestors included that guarantee in the Bill of Rights to ensure that federal officials couldn’t keep a person in jail for a long period of time with the false promise that “you’ll get a trial one of these days.” So, if a person isn’t tried within a certain period of time, officials have to release him, no matter how convinced they are of his guilt.

In Guantanamo, there are people whom the Pentagon and the CIA have accused of terrorism that have been there for some 10 years. Oh sure, the entire time the Pentagon has been saying, “You’ll get a trial one of these days—we promise!” but that day obviously never comes. Just ask any one of the detainees who have been languishing at Gitmo for a decade without trial, especially those who are now trying to commit suicide by starvation.

In fact, it’s actually worse than that. Despite the fact that many inmates at Guantanamo have been adjudged innocent, the Pentagon and the CIA still won’t let them go.

Consider the right of trial by jury. When the Pentagon was free to do whatever it wanted at Gitmo, did it embrace this sacred judicial right? Not on your life. It instead chose trial by military tribunal, a system that would ensure convictions rather than risk acquittals, which oftentimes occur in jury trials.

In the beginning of the Gitmo system, the Pentagon refused to allow of the prisoners to have attorneys to represent them. That changed only when the federal judiciary stepped in, assumed jurisdiction, and ordered the Pentagon to permit defense attorneys.

At Guantanamo, people have also been subjected to torture, not only as a way to punish them but also as a way to secure confessions and testimony against others. At Gitmo, everyone is presumed guilty of terrorism, unlike the American system, where people are assumed innocent.

Why didn’t the Pentagon and the CIA instead embrace the principles in the Bill of Rights? Because they don’t believe in them. They never have believed in them. They believe that the procedural protections in the Bill of Rights are nothing but ridiculous, antiquated technicalities that do nothing but let guilty people off the hook. That’s why they have always felt totally comfortable with installing, training, and partnering with fierce and brutal dictatorial regimes that hated the principles enunciated in the Bill of Rights, such as Pinochet, Mubarak, the Shah, Musharraf, and Saddam Hussein, to name a few.

Consider Iraq and Afghanistan, where the Pentagon and the CIA, again, had carte blanche to establish any system they wanted. There have been no constraints on anything they did in those two countries, not even from the federal judiciary. The Pentagon and the CIA were free to kill as many people as they deemed necessary to establish “order and stability” and a new regime in both countries.

Look at what they brought into existence: a prison and judicial system in modeled on what they did at Gitmo — indefinite detention, no trial by jury, torture, denial of due process, and so forth, with a giant standing military force to ensure compliance. More ominously, they honestly believe that they system they established in Iraq and Afghanistan brought “freedom” to the Iraqi and Afghan people.

What would have happened if our ancestors had not enacted the constraints enumerated in the Bill of Rights? There can be no doubt. U.S. officials would have ended up establishing the same system here in the United States as they have established in Cuba, Iraq, and Afghanistan. Thank God for the wisdom and foresight of our ancestors, who knew that that was precisely what U.S. officials would do in the absence of the Bill of Rights.

 

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.