Given that we have all been born and raised under a national-security state form of governmental structure, no one in the mainstream press is batting an eyelash over Secretary of Defense Lloyd Austin’s role in a plea bargain into which military prosecutors had entered with three men who are accused of participating in the 9/11 attacks, Khalid Sheikh Mohammed, Walid bin Attash, and Mustafa al-Hawsawix. Austin scotched the plea bargain because it eliminated the possibility of a death sentence for the three men.
To be sure, there are some mainstream pundits who have expressed disagreement with Austin’s decision to cancel the plea bargain. But none of them question the very notion that a retired military general is making a major decision in a case involving criminal justice. That’s because the mainstream press, along with many Americans, has come to accept the normality and permanence of the judicial system that the Pentagon established in Cuba after the 9/11 attacks.
But the fact is that Austin’s role in a criminal prosecution is weird — extremely weird. A retired military general serving as U.S. Secretary of Defense has no more legitimate role in America’s criminal-justice system than he does in America’s public-school system.
The U.S. Constitution established one judicial system. It consists of U.S. District Courts, federal courts of appeals, and the U.S. Supreme Court. It encompasses both civil and criminal jurisdiction. Under the Constitution, when the U.S. government targets someone with criminal prosecution, it must do so within the rules and constraints of the federal-court system.
In other words, the Constitution did not set up two dual, competing criminal-justice systems — one run by civilians and one run by the military. It set up only one criminal-justice system. And that one judicial system is subject to the constraints of the Constitution and the Bill of Rights, specifically the Fourth, Fifth, Sixth, and Eighth Amendments.
Contrary to popular opinion, terrorism is not an act of war. It is a criminal offense under the U.S. Code. When someone is charged with the crime of terrorism, the Constitution requires that he be treated like any other defendant in the federal-court system.
What happened after the 9/11 attacks, however, was that the military-intelligence establishment seized on the crisis, panic-filled environment to establish a brand new dual, competing judicial system at its imperial outpost in Guantanamo Bay, Cuba. Mind you, there was no constitutional authority for such a judicial system but given the climate of “emergency” and the dominant role that the national-security establishment had already come to play in America’s federal governmental system, the Pentagon knew that no one would interfere with its new judicial system.
Thus, under America’s dual, competing judicial systems, the military now decides how an accused terrorist is going to be handled. If the military decides that an accused terrorist, whether foreigner or American, should go into the constitutional system, that’s where he will go. In fact, there have been a number of criminal prosecutions for terrorism in America’s federal-court system, both before and after the 9/11 attacks.
However, if the military decides that an accused terrorist, including an American citizen, will instead be placed in the military’s judicial system at Gitmo, that’s where he will end up. That’s why the plea bargain into which the accused 9/11 planners entered was done with military prosecutors rather than with U.S. Attorneys and assistant U.S. Attorneys.
The difference between these two judicial systems is like day and night. In the constitutional system, the accused has the right to a speedy trial, the right to trial by jury, the right to confront and cross-examine witnesses, the right to be free from cruel and unusual punishments, and other procedural protections.
None of those protections exists for people who are shunted into the military’s judicial system at Gitmo. That’s why criminal defendants have been held there for some 20 years without a trial — there is no right to a speedy trial at Gitmo. The accused can also be convicted on hearsay evidence, which means that he has no right to confront and cross-examine witnesses. He can be tortured into confessing to his crimes. He has no right to trial by jury. Instead his guilt or innocence is determined by a military commission whose kangaroo-court-like verdict will inevitably turn on pleasing superior officers.
This entire dual, competing judicial system is about as weird as weird can get, including the fact that a retired military general now wields the authority to involve himself in plea bargains in criminal prosecutions. The fact that this weird judicial system has become a normal and permanent part of American life just goes to show how the national-security establishment controls, manages, and directs the federal government, with the other three branches simply playing a supportive role. See National Security and Double Government by Michael J. Glennon.