Jacob G. Hornberger: Military tribunals are un-American

  Last month New York jurors convicted Osama bin Laden’s son-in-law, a man named Sulaiman Abu Ghaith, of terrorism-related offenses in a trial in federal district court in New York City. The New York Times reported that "his swift conviction on all counts would seem to serve as a rejoinder to critics of the Obama administration’s efforts to try suspected terrorists in civilian courts, rather than before a military tribunal."

  What the Times is suggesting, of course, is that if Abu Ghaith had instead been acquitted, critics would have gone on the rampage by saying that the acquittal verdict proved that suspected terrorists should be tried before military tribunals, where the chance of an acquittal is virtually nil.

  Why was the trial held in the first place in U.S. District Court? Because under the U.S. Code, terrorism is a federal criminal offense. Under our system of justice, federal criminal offenses are tried in federal district court.

  Why do critics say that terrorism cases should be tried instead before military tribunals? Because of the possibility that the accused will be acquitted in a federal court trial. To them, the possibility of acquittal shows that federal courts cannot be trusted to handle terrorism cases.

  Interesting enough, German Chancellor Adolf Hitler was faced with this same problem. During the early part of his administration, terrorists attacked the German Parliament building with a firebomb. Making matters worse, the people who were arrested and charged with the crime were communists. So, Hitler was confronted with the twin threats of terrorism and communism.

  Since terrorism is a criminal offense, the suspects were brought to trial before the regular German courts. Much to Hitler’s dismay, some of the defendants were acquitted.

  Not surprisingly, the acquittals sent Hitler into a rampage. He knew the defendants were guilty. He knew they were terrorists and communists. In Hitler’s mind, the acquittals of these obviously guilty people proved that Germany’s regular judicial system could not be trusted to handle terrorism cases.

  Therefore, guess what Hitler did. He created an entirely different judicial system for terrorism cases, a system in which accused terrorists would be tried by tribunals. The tribunals would ensure that terrorists would no longer be set free to engage in more terrorism against Germany. (Hitler also persuaded the Reichstag to grant him emergency powers to deal with the twin threats of communism and terrorism.)

  The People’s Court, which was what Hitler’s new judicial system was called, made certain that "justice" — i.e., swift convictions and punishment — was done against terrorists and also traitors. There were few, if any, acquittals in the People’s Court. There were lots of death sentences meted out. From Hitler’s perspective, that meant his tribunal system was working fantastically.

  An excellent example of how the People’s Court operated was when University of Munich students Hans and Sophie Scholl and other members of the White Rose organization were arrested for publishing pamphlets exhorting Germans to oppose the Hitler regime during the middle of World War II. Hitler immediately sent Roland Freisler, the head of the People’s Court, to Munich to preside over the trial.

  There was no delay in the trial. In fact, things proceeded so swiftly that the Scholl siblings, along with their best friend Christoph Probst, were tried and guillotined within three days of being arrested. Probst’s pregnant wife didn’t even learn her husband had been arrested until after he had been executed. The trial was held in secret. There was never any possibility of acquittal.

  A genuinely fair criminal trial, however, inevitably involves the possibility of acquittal. That’s what makes it a fair trial. If conviction is guaranteed, what’s the point of having a trial? It is the very purpose of a fair trial to determine whether a person truly is guilty of the crime that the state is accusing him of.

  In virtually every criminal case, state officials are convinced that the defendant is guilty. That’s why they are prosecuting him. But many times, the jury isn’t convinced, in which case they have the responsibility of acquitting the accused, even if that upsets and angers the prosecutors.

  That’s the type of system our American ancestors bequeathed to us with the Bill of Rights. Knowing that federal officials would inevitably accuse people of crimes, they established a judicial system in which they attempted to protect the rights of the accused against the overwhelming power and money of the federal government.

  Under the system they established, no one can be punished without first being convicted of a federal crime in a U.S. District Court, presided over by an independent federal judge. During the trial, the defendant is presumed innocent and cannot be forced to testify. The defendant can elect to have a jury of ordinary people hear the evidence and decide whether he is guilty or not. He can summon witnesses in his favor. He has the right to confront witnesses against him and cross examine them. He is entitled to the assistance of a lawyer. The government bears a high burden of proof —it must convince the jury of guilt beyond a reasonable doubt. Evidence must be relevant and competent.

  All of these protections are barbed-wire entanglements that protect everyone, foreigners and citizens alike, who the federal government accuses of some federal criminal offense. Such protections inevitably result in acquittals. Our ancestors subscribed to the old legal adage, better that ten guilty people go free than one innocent person convicted.

  Hitler had it wrong. So do those Americans who have advocated since the 9/11 attacks that Americans abandon their federal court jury system under the U.S. Constitution in favor of military tribunals. The constitutional system that our ancestors bequeathed to us is far from perfect but it’s far better than the alternative, an alternative that is the very essence of tyranny.

  About the author: Jacob G. Hornberger is the founder and president of The Future of Freedom Foundation.

  This article was published by The Future of Freedom Foundation.