Last month, President Obama announced that Khalid Sheik Mohammed would be transferred to New York, where he would stand trial in U.S. district court for his purported role as principal architect of the 9/11 attacks. At the same time, Obama announced that other terrorist suspects would continue to be tried for terrorism in the Pentagon’s military-commissions system, which was established after 9/11.
Which judicial system is chosen—the federal courts or military commissions system—has important consequences for accused terrorists. What all too many Americans fail to realize, however, is the enormity of the impact that this dual system of justice has had on the country’s constitutional order. The precedents created here will extend far beyond the war on terror.
Suppose drug-war violence in Mexico spills over into the United States. Gangs begin kidnapping, torturing, and murdering federal law-enforcement agents and judges. Federal buildings are bombed. Gang-war gun battles break out on the streets, resulting in the deaths of bystanders.
The violence induces the U.S. government to re-declare a war on drugs. The president orders the military to undertake at home the same type of interdiction operations it has been taking in foreign countries for decades. The Pentagon immediately sends several thousand battle-tested troops to the southern border to wage the struggle.
When critics complain that the Posse Comitatus Act prohibits the military from engaging in domestic law enforcement, the president responds that this is war, not criminal justice, and that in this war, as in the war on terrorism, the entire world, including the United States, is the battlefield. As commander in chief, the president says, he wields the power to send the military onto the battlefield to capture or kill the enemy wherever he may be found.
And as part of the war, the president and the Pentagon announce that there will now be two alternative judicial systems for handling drug offenders.
One system will be the traditional one established by the Constitution, the one involving federal grand-jury indictments, trials before federal judges, the presumption of innocence, protection from self-incrimination, suppression of illegally obtained evidence, freedom from cruel and unusual punishments, effective assistance of counsel, a speedy and public trial, the right to confront witnesses, and trial by jury.
The other judicial system will be established and operated by the Pentagon, at its prison camp in Cuba. Its procedures will be entirely different from those in the U.S. federal courts. Drug-war combatants shunted into this system will be presumed guilty, subject to torture and abuse, and denied the procedural rights and guarantees provided in the Bill of Rights.
Deciding which system of justice will be applied to each suspected drug offender will rest entirely in the hands of federal officials, especially the military. They will wield full discretionary authority to make the call. As a political and practical matter, the policy will be to send most, but not all, American suspects into the federal court system. Foreign citizens, on the other hand, will largely be subjected to the Pentagon’s system.
While many long-time drug-war proponents would undoubtedly hail such a change as a positive development in their decades-long hope of finally winning the war on drugs, most Americans would surely feel a sense of unease about such an announcement. Many of them would recognize that such a change would fundamentally alter America’s criminal-justice system.
Let’s keep in mind that the Bill of Rights doesn’t really give anyone any rights. Instead, it does two primary things: it prohibits the federal government from infringing upon fundamental and inherent rights of the people, and it forces federal officials to accord people charged with crimes important procedural rights and guarantees that have been carved out in the struggle between liberty and tyranny, a struggle that stretches back centuries into British history.
Why did the American people demand passage of the Bill of Rights? Because they considered the federal government, which the Constitution had brought into existence, to be the primary threat to their freedom and well-being. Americans were convinced that the federal government would end up doing the bad things that governments historically had done to people, such as confiscating weapons to ensure submissiveness to the government and rounding up people for criticizing the government and torturing them.