Gitmo Reflects Disdain For The Constitution

by | Nov 5, 2015


Democratic Sen. Dianne Feinstein has an op-ed in today’s New York Times entitled “Let’s Finally Close Guantanamo,” in which she points out what critics of the Guantanamo facility have been saying for years: It is a very effective tool that overseas terrorist organizations use to recruit new members. Feinstein calls for closing down the facility, transferring the remaining prisoners to the United States, and prosecuting them in US federal courts.

Among President Obama’s most notable campaign promises was to close the US national-security state’s prison camp and special tribunal system at Guantanamo Bay. As Obama enters into his last year in office, it is becoming increasingly likely that his promise is going to go unfulfilled. That’s because the Republican members of Congress, along with the US national-security establishment, are not likely to let it happen.

Why have the GOP, the Pentagon, and the CIA steadfastly insisted on the continued operation of the Gitmo facility ever since it was established after the 9/11 attacks?

The answer is: because they believe in it! They think it is absolutely fantastic that they have been able to construct a prisoner facility and special judicial system that is, in many respects, independent of the US Constitution and beyond the power of the federal courts to interfere with.

After all, let’s not forget why they established their prison camp in Cuba in the first place. From the very beginning, their objective was to have a Constitution-free zone, one where the national-security branch of the federal government — i.e., the military and the CIA — would have the omnipotent power to do whatever they wanted to suspected terrorists — without having to concern themselves with such things as due process of law, right to counsel, trial by jury, and rest of the guarantees in the Constitution and the Bill of Rights.

In fact, in the early days of Gitmo, when detainees began challenging their detention in federal courts, the Pentagon’s and CIA’s position was that the federal courts had no jurisdiction over their operation of Guantanamo. That’s because, they said, Guantanamo belongs to Cuba and, therefore, US Courts don’t have jurisdiction over Cuban affairs.

The Supreme Court ultimately rejected that argument but the ruling was just part of the longstanding charade designed to convince Americans that their constitutional system is operating normally, when in fact it is the Pentagon and the CIA that are ultimately in charge of the federal government. After all, if the Supreme Court were really in charge, do you think the justices would ever permit people to languish in jail for more than a decade without charges or trial? That’s what goes on in totalitarian countries, not societies governed by Constitutions, the rule of law, and an independent judiciary.

The most important point is one that should discomfort Americans: The reason they went to Cuba to establish their system is that they hate the system that our American ancestors brought into existence with the Constitution. That applies to both Republicans and the national-security establishment. For them, the rights and guarantees in the Fourth, Fifth, Sixth, and Eight Amendments are nothing more than idiotic technicalities that permit guilty people to go free. Conservatives and the national-security establishment have long held those rights and guarantees in disdain.

Don’t believe me? Just look at the type of “judicial” system they put together at Gitmo. Remember: When they were constructing their model system, there were no constraints on them. They were free to establish any system they wanted in Cuba.

Given that 100 percent latitude, did they come up with a system modeled after that of the United States — the one the Framers brought into existence? Not on your life! They did the exact opposite. They established a system that was a mirror image of the type of system that characterizes totalitarian regimes, including, ironically enough, the one on the other side of Cuba.

Consider their model system at Gitmo. They have military tribunals manned by military officials, instead of jury trials compose of regular people. That’s because they wanted to guarantee guilty verdicts. At first they tried to deny their prisoners the right to an attorney so that it would be easier to railroad them to the death penalty. They allow torture to be used against the accused and witnesses, to secure coerced confessions and false testimony. They permit hearsay evidence, which means that the accused is denied the right to confront and cross-examine witnesses against him. There is no right to a speedy trial, which is why prisoners continue to languish in jail without charges or trial, despite the passage of more than a decade.

Pick out any totalitarian regime in the world and you will find that type of “judicial” system — the type that Republicans, the Pentagon, and the CIA put together at Guantanamo.

In fact, just consider the Hitler regime, which most people consider is the gold standard when it comes to totalitarianism and tyranny. After the terrorist attack on the Reichstag, which was Germany’s 9/11, Hitler declared war on terrorism, just as Bush did after 9/11. That meant that Nazi Germany was now facing two official enemies – a Cold War against the Soviet Union (and godless communism) and terrorism (which, interestingly enough, are quite similar to the same two official enemies — Russia and terrorism—that Republicans, the Pentagon, and the CIA tell us that America is facing today).

When the Reichstag defendants were brought to trial, Germany’s federal courts acquitted some of them, which sent Hitler into a rage, driving him to organize a new system for trying terrorism cases. He established tribunals that were manned by civilian judges, albeit ones who were beholden to Hitler and who would ensure that terrorists and traitors would never be let off the hook again by the federal courts. It was one of those tribunals that tried, convicted, and executed the members of the White Rose.

That’s also why those tribunals were set up at Gitmo — to guarantee guilty verdicts in the event any of the defendants were ever to be brought to trial. Moreover, the judicial procedures that Hitler’s tribunals followed were similar to the procedures at Gitmo. What mattered to Hitler was the same thing that matters to the GOP, the Pentagon, and the CIA — to have a system that creates the façade of judicial legitimacy but also one that would guarantee a verdict of guilty.

Of course, what’s happened at Gitmo is not the only manifestation of the disdain that Republicans, the Pentagon, and the CIA — and, well, let’s face it, many Democrats too — have for our original system of constitutional government. Look at the types of governments they have brought into existence as a consequence of their invasions and occupations of Afghanistan and Iraq. They are governments characterized by massive military, intelligence, and police establishments, just like here in the United States. As part of their nation-building operations, they have never brought into existence the type of government that characterized the United States for more than 150 years — a limited-government constitutional republic, one with no welfare state, no central bank, no drug laws, and no national-security establishment, and one that honors and respects the rights and guarantees in the Fourth, Fifth, Sixth, and Eighth, Second, and First Amendments, and the rest of the Bill of Rights.

When the most powerful part of the federal government holds the Constitution, the Bill of Rights, and the founding principles of this nation in disdain, that’s a good sign that the American people have much more to be concerned about than just the closing of the Pentagon’s and CIA’s facility at Guantanamo.

Reprinted with permission from the Future of Freedom Foundation.


  • Jacob G. Hornberger

    Jacob George Hornberger is an American attorney, author, and politician who was a Libertarian candidate for president in 2000 and 2020. He is the founder and president of the Future of Freedom Foundation.

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