Are Military Tribunals Worth Dying For?
Thus, the issue of military tribunals is no longer an esoteric one for the American people. Like it or not, as a result of the new al-Qaeda threat every American has now been thrust into the middle of the intellectual, moral, legal, and political battle over the US government’s plan to utilize military tribunals against the Guantanamo Bay detainees.
Each American must now ask himself a critical question: Are those military tribunals worth dying for, and are they worth risking the lives of our friends, families, and countrymen?
If the president and the Pentagon follow through with their plan, and if there is another giant terrorist attack that takes the lives of thousands of Americans, I can already hear federal officials declaiming, "This is an attack on our freedom and values."
But they will be speaking falsely. In fact, it is the military tribunals themselves that will constitute the real attack on our freedom and values.
Ask yourself: Why did US officials decide to send detainees to Guantanamo Bay rather than bring them to a federal penitentiary or prison camp here in the United States? There’s one and only one reason: to avoid the principles of the US Constitution and the judicial system of our country.
By basing prisoners in Cuba, US officials hoped to avoid due process of law, effective assistance of counsel, trial by jury, the right to summon witnesses, the right to confront witnesses, and appellate review. Federal officials wanted a place in the world where they could be a law unto themselves—where they could be jailer, prosecutor, judge, and executioner and without having to answer to anyone or any law.
Is that what America is all about? What better evidence of utter contempt for the Constitution, our heritage of liberty and due process of law, and our way of life? Show me a bigger attack on our "freedom and values" than that.
One who genuinely embraced the principles of America would take a different position: "We have the finest judicial system in the world, one that has been developed through centuries of arduous struggle. We take great pride in utilizing it, not only for citizens of our country but also for foreigners. And it’s a way of life we’re committed to preserving, even if it means risking our lives to terrorism or any other threat."
Far from mirroring the due-process procedures set forth in the Constitution, the military tribunals will instead reflect the processes used on Fidel Castro’s side of Cuba, where terrorist suspects are also tried before military tribunals before biased judges and denied independent counsel, due process of law, the right to confront witnesses, the right to summon favorable witnesses, the right of trial by jury, and the right to have their convictions reviewed by independent appellate courts.
It is not a coincidence that the National Criminal Defense Lawyers Association has told its 11,000 members that it would be unethical for any of them to serve as a defense attorney in the military tribunals at Guantanamo Bay.
There’s still plenty of time to reverse course, which is exactly what the president and the Pentagon should do, not because of the threat that al-Qaeda has leveled against us but because the Guantanamo military tribunals will denigrate the freedom and values our nation is supposed to stand for. And that’s something that’s neither worth dying for nor risking the lives of others for.
Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.
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This story was published on August 15, 2003.