In his inimitable way, Donald Trump has stirred up the mainstream establishment again, this time with a remark on Gitmo. In response to a reporter’s question, Trump said that he would be “fine” with prosecuting American citizens in the Pentagon’s tribunal system at Guantanamo Bay, Cuba.
Not surprisingly, the mainstream press is going ballistic but, in the process, is also exposing, inadvertently, its own hypocrisy and its own lack of understanding of constitutional principles. Indeed, in the context of the controversy, one might legitimately ask whether Trump’s mainstream critics have ever read the Bill of Rights.
Notice what Trump has caused the mainstream press to do: acknowledge that the Pentagon’s “judicial” system is substandard compared to the federal court system. Whether they realize it or not, that’s what they’re saying by their shock and dismay that Trump would actually subject American citizens to the Pentagon’s “judicial” system at Gitmo.
Deep down, all these people know that the Pentagon’s “judicial” system is not only substandard but really isn’t a judicial system at all. Instead, it’s nothing more than a way to incarcerate, torture, and execute people under the pretense that it’s being done under a judicial system. Let’s face the truth: The Pentagon’s “judicial” system in Cuba is no different from the Castro brothers’ “judicial” system on the rest of the island.
Why did the Pentagon establish its “judicial” system in Cuba? Because it assumed that by doing so, it would be establishing a Constitution-free zone, one where the Pentagon (and the CIA) could operate without any interference from the U.S. Supreme Court and the rest of the federal judiciary. It would be a black hole of hell where the military and the CIA could do whatever it wanted to people who were suspected of being terrorists — jail them forever, torture them to death, or kill them — and all without having to comply with the principles in the Bill of Rights, specifically the Fourth, Fifth, Sixth, and Eight Amendments.
Why did our American ancestors demand the enactment of those amendments? Because they knew that without them, U.S. officials would do the types of things proscribed in those amendments: i.e., arbitrarily take people into custody, jail them for as long as they want, subject them to cruel and unusual punishment, torture them into confessing, or just kill them — all without due process of law and trial by jury.
And we now know how right our ancestors were! Just look at Guantanamo. It’s provides a model for what federal officials would do here in the United States but for the Bill of Rights. Keep in mind: When the Pentagon and the CIA were free to bring into existence any judicial system they wanted in Cuba, that’s the one they picked — one that contravenes the principles in the Bill of Rights and that mirrors the judicial systems in communist and other totalitarian countries.
Notice another important thing, especially in the context of Trump’s suggestion: Contrary to what the mainstream press is saying, the federal judicial system established by the Constitution has nothing to do with citizenship. Instead, it was established for any person accused of committing a federal crime. Whether the accused is an American citizen or a foreign citizen is totally irrelevant.
Carefully examine the language of those four amendments: “The right of the people to be secure…. No person shall be held to answer … nor shall any person be subject…. In all criminal prosecutions, the accused shall enjoy the right….”
Do you see anything about citizenship in that language? No, and that is one of the special attributes of the criminal-justice system established by our American ancestors. They brought into existence one system for everyone, citizens and foreigners alike. Not one system for American citizens and another one for foreign citizens. Under the Constitution and the Bill of Rights, everyone accused of a crime is entitled to the same judicial protections and the same judicial system.
That’s what the Pentagon and the CIA destroyed with their post-9/11 bifurcated “judicial” system. They destroyed the one system for everyone that our ancestors brought into existence. And notice something else: They did it without even the semblance of a constitutional amendment, which is what the Constitution requires them to do when they wish to avoid a constitutional restriction or prohibition.
Trump is raising an interesting point. Under the Constitution, why shouldn’t everyone, rich or poor, citizen or foreigner, be treated alike? Why should citizens be accorded a different judicial system than foreigners, especially given that the Constitution doesn’t provide for judicial protections based on citizenship? Why not equal treatment under law for everyone?
Let’s ask ourselves why the Pentagon chose not to send American citizens to Guantanamo when it first established its prison camp and “judicial” system there? It was entirely a matter of expediency. It had nothing to do with any kind of constitutional barrier they were concerned with. They figured that Americans might balk at the whole idea of a Constitution-free zone in Cuba if they included American citizens into the scheme.
But that could change instantaneously with either presidential order or legislative action. After all, since the military can now take American citizens into custody, incarcerate them indefinitely, and torture them, as they did with American citizen Jose Padilla, and also assassinate them, as they did with Anwar al Awlaki and his 16-year-old son Abdulrahman, there is no reason they can’t also send Americans to Gitmo for kangaroo justice.
If Trump does win and starts sending Americans to Gitmo, or if Hillary Clinton decides to do the same thing, don’t count on the Supreme Court to stand in the way. The Court will show the same extreme deference to the authority of the national-security establishment that it has shown since its inception in the late 1940s.
There is only one right solution to all this: Dismantle the Pentagon’s prison camp and “judicial” system in Cuba, abandon the property to Cuba, and restore the concept of one judicial system for everyone that our ancestors brought into existence with the Constitution and the Bill of Rights.
Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.
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