Gitmo Reflect Disdain Fro The Constitution
21 November 2015
By Jacob G.
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 U.S.
Among President Obama's most notable campaign promises was to close the U.S.
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 U.S.
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 U.S.
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
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, U.S. 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
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 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
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
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