by Jacob G. Hornberger
A recent crime crackdown in China reminds us of why our American ancestors demanded the inclusion of the Fourth, Fifth, Sixth, and Eight Amendments to the Constitution. To enforce their crackdown, Chinese officials did the types of things that those four amendments to the U.S. Constitution prohibit.
According to the New York Times, it was a “security apparatus run amok: framing victims, extracting confessions through torture, extorting business empires and visiting retribution on the political rivals…. In 10 months, 4,781 people were arrested….”
People rounded up and accused of crimes were taken to military facilities, where military officials brutally tortured them into confessing to their crimes. One man, Fan Qihang, who was charged with murder and other felonies, stated that he was taken to a military facility “and shackled to an iron bar — once, for five days straight — with only his toes touching a table. His handcuffs cut so deeply into his wrists that his guards once needed an hour to remove them.”
Fan stated that he tried to commit suicide by hitting his head against a concrete wall. He didn’t need to try so hard to kill himself because he was soon convicted and executed.
The Chinese communist authorities would undoubtedly say that the end justifies the means. The people they accused of crimes, they would say, were obviously guilty. Therefore, any means to ensure their punishment would be justified.
That was not the attitude of our American ancestors. That was why they prohibited U.S. officials from doing those sorts of things with the Fourth, Fifth, Sixth, and Eight Amendments. For our ancestors, the end preexisted in the means. For them, having a fair and just process was just as important as ensuring that people were convicted and punished for their crimes. If that meant that some people who had committed crimes went free, so be it. The end did not justify cruel, horrific, and brutal means, especially given that such means would inevitably involve convicting and punishing innocent people.
The Chinese communist crackdown, of course, brings to mind the Pentagon’s post-9/11 criminal-justice system — the system that it established in Cuba to compete against the U.S. federal court system in terrorism cases. In many ways the Pentagon’s system closely resembles that employed by the Chinese communists.
For example, when the military takes someone into custody who is suspected of having committed a terrorist act, the suspect is taken to the military prison at Guantanamo Bay, where he is denied access to his family and the press.
When the facility was first established, the Pentagon also attempted to deny its prisoners access to an attorney. After that notion was squashed by the U.S. Supreme Court, the Pentagon nonetheless did everything it could to interfere with the traditional, independent attorney-client relationship, including honoring the confidentiality of communications between the lawyer and his client.
Torture was permitted, just like in communist China. In fact, one terrorist suspect was waterboarded more than 100 times, either in an attempt to secure a confession or simply as an act of cruel vengeance or pre-conviction punishment. Isolation and sensory deprivation, which are intended to inflict permanent mental damage on people, have been prime methods at Guantanamo, a method, by the way, that U.S. officials acquired from the North Korean communists during the Korean War.
No one is entitled to a speedy trial at Gitmo, which is why people have languished there for 10 years without a trial. Suspects are presumed guilty and are treated accordingly. There is no such thing as due process of law or trial by jury.
Of course, someone might respond, “But terrorism is an act of war, not a criminal offense, which enables the Pentagon to conduct its operations like the Chinese communists do.”
Not so. No one can deny that terrorism is a federal criminal offense under the U.S. Code. That’s why the federal courts continue to handle terrorism cases on a regular basis.
What’s different is that 9/11 provided the Pentagon with the opportunity of coming up with an alternative criminal-justice system, one that could compete against the federal-court system. In the Pentagon’s system, there would be no more coddling of criminals, no more Miranda warnings, no more constitutional technicalities, no more pesky criminal-defense lawyers, no more exclusionary rule, no more dumb juries, and no more criminals walking the streets.
Just like in China.
Of course, there are those who say that the Pentagon can do all these things because the government is “at war”—a war on terrorism.
But they’ve got to admit that it’s a strange war when the military is prosecuting and convicting in a judicial proceeding every single POW that it takes captive during the war. Did the U.S. military criminally prosecute every single POW in World War II?
No, the war metaphor is cute but it just doesn’t work, especially given the obvious — that the Pentagon has established its own criminal-justice system to prosecute suspected terrorists, one that is intended to compete against the federal-court system — one that is strikingly similar to that employed by the Chinese communists.
Moreover, let’s not forget that when it comes to suspected terrorists, these two competing criminal-justice systems — the Pentagon’s and the federal-court system — are interchangeable. That is, the government now wields the post-9/11 option of employing either system or just hopping back and forth between the two systems, as they did in the Jose Padilla case.
So far, the Pentagon has limited its communist-like criminal-justice system to terrorism cases. But that’s only a matter of expediency. There is no inherent reason why the Pentagon’s system can’t be expanded to include drug suspects, especially since the U.S. military has been involved in the war on drugs much longer than it has been involved in the war on terrorism.
Why did our American ancestors deem it necessary to expressly prohibit the federal government from doing those things that are enumerated in the Fourth, Fifth, Sixth, and Eighth Amendments? Because they knew that in the absence of those express prohibitions, federal officials would do such things. The Pentagon’s communist-like criminal-justice system in communist Cuba show how correct our ancestors were.
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