By Jacob G. Hornberger
Thursday, November 19, 2009
Courtesy Of The Future Of Freedom Foundation
I don’t know how President Bush and the Pentagon came up with the idea of establishing a new judicial system for trying terrorists, but there is the distinct possibility that they got the idea from German Chancellor Adolf Hitler.
Yes, I know, there are going to be those who resent such a suggestion, exclaiming, “Just because the idea might have come from Hitler doesn’t necessarily mean it’s bad.” They might point, for example, to the U.S. Interstate Highway System, which was inspired by Hitler’s autobahn system. Or they might point to Franklin Roosevelt’s New Deal, whose programs were remarkably similar to the socialist and fascist programs of Hitler as well as those of Benito Mussolini and Joseph Stalin. (See Three New Deals: Reflections on Roosevelt’s America, Mussolini’s Italy, and Hitler’s Germany, 1933-1939 by Wolfgang Schivelbusch.)
Indeed, such people might even point out the fact that Social Security under Hitler and Roosevelt had a common root — Otto von Bismarck, the so-called Iron Chancellor of Germany, who himself had gotten the idea from German socialists.
In any event, in 1933 soon after Hitler had become chancellor, the terrorists fire-bombed the German parliament building, the Reichstag, destroying most of the building. As you can imagine, the attack threw the nation into a major crisis, just as 9/11 did for the United States.
The crisis in Germany became graver when it was discovered that the suspected terrorists were communists, for that meant that Germany was now facing two major threats to national security at the same time: terrorism and communism. (To get a sense of the magnitude of the crisis, combine the U.S. cold war against the communists with the subsequent war on terrorism.)
Hitler immediately sought a suspension of civil liberties from the Reichstag to deal with the national emergency. National security is at stake, he exclaimed. In this time of national crisis, when the security of our nation is in jeopardy, we cannot afford the niceties of civil liberties, he said. I need temporary emergency powers to deal with this crisis.
The Reichstag granted Hitler’s request, suspended civil liberties, and gave him the temporary emergency powers he sought to deal with the crisis. Civil liberties could and should be temporarily sacrificed to preserve the nation, the reasoning went.
In the meantime, the people who had been charged with the terrorist strike on the Reichstag were brought to trial in Germany’s regular, constitutional judicial system. Only one of the defendants, however, was convicted. All the rest were acquitted.
Needless to say, Hitler was not happy with the court’s verdict. These were terrorists and communists, after all! Hitler and the Gestapo had said so. What more proof did the courts need than that? How dare German judges threaten national security by releasing terrorists and communists back on the street?
Hitler’s solution? To ensure that this didn’t happen again, he established a new-fangled judicial system for handling terrorism cases. It was called the People’s Court. This new judicial system had the trappings of Germany’s regular judicial system but with one big difference: There would be no more “not guilty” verdicts for people that German officials said were terrorists. No more threats to national security by releasing terrorists back on the streets. Moreover, under the guise of protecting national security, the proceedings could be held in secret to preserve government secrets.
Are the circumstances and reasons for establishing a new tribunal system in Germany similar to those for establishing a new post-9/11 tribunal system in the United States?
Prior to 9/11, it was a well-established principle that terrorism cases could be tried only in federal district court. That’s not surprising given that that terrorism has long been listed in the U.S. Code as a criminal offense — and still is. That’s precisely why terrorists are still being indicted and tried in federal district court even today.
Thus, when the terrorists struck the World Trade Center in 1993, Ramzi Yousef, one of the terrorist perpetrators, was tried, convicted, and sentenced in federal district court. Again, that’s because terrorism is a criminal offense in the U.S. Code, a fact that no one disputes.
Like the Reichstag fire bombing, the 9/11 terrorist strike gave Bush and the Pentagon the excuse to establish a new-fangled judicial system for trying suspected terrorists. Like the People’s Court in Germany, it would exist independently of both the civilian courts and the military justice system. It was a brand new judicial system, one for trying terrorists, just like Hitler’s.
Unlike Hitler, however, Bush and the Pentagon established their new system in a foreign country, Cuba. The reason? To ensure that their system would not be bound by the rights and guarantees in the Constitution and the Bill of Rights and to ensure that there would be no interference by the federal courts.
The primary reason for establishing a new judicial system for trying terrorists was precisely the same as Hitler’s: to ensure that terrorists were not acquitted and released back on the streets, where they could commit more terrorist acts against Americans.
In the federal courts, there are numerous obstacles to securing convictions — due process of law, criminal-defense attorneys, cross-examination of adverse witnesses, juries, the presumption of innocence, independent judges, and so forth. There is always a chance of an acquittal, even for defendants that the government is convinced 100 percent are terrorists.
It was the same problem Hitler faced after the acquittal of the Reichstag terrorists.
The solution that U.S. officials came up with was the same one that Hitler came up with: establish a brand new judicial system where convictions would be guaranteed. No more legal technicalities that would enable judges to let terrorists back on the streets. No more pesky defense attorneys ardently fighting for the acquittal of their clients. Just convictions and punishment for the terrorists.
That’s what the new-fangled judicial system in Cuba was all about. It was also what Hitler’s People’s Court was all about.
Now, it’s true that in Germany Hitler had civilian bureaucrats presiding over his tribunals while Bush and President Obama have military officials presiding over theirs. But isn’t that a distinction without a difference? The point is that in both systems tribunal officers are ultimately answerable to their superiors and have every incentive to please their superiors with a correct verdict.
While both systems have the trappings of regular court proceeding, the verdicts are never in doubt, as they are in the federal courts. In fact, both the People’s Court and the U.S. tribunals are nothing more than kangaroo proceedings, ones in which they play like justice is being administered while everyone knows what is actually going on.
Hitler’s tribunal system and the U.S. tribunal system have another characteristic in common — the ability to tightly control the proceedings, even making them secret. This has the benefit of preventing the terrorists from making a “circus” out of the trial by providing them a forum from which they can describe their motives to the world.
Nothing scares U.S. interventionists more than any proceeding that might focus on the bad things that the U.S. government has been doing to people overseas, which has engendered the anger and rage that has led to terrorist retaliation. The charade that the terrorists hate us for our “freedom and values” must be maintained at all costs.
A federal proceeding, one in which the public and the media have a right to attend, might end up enabling the defendants to publicly explain their motives for attacking the United States, which is precisely what happened at Ramzi Yousef’s sentencing hearing after his conviction for the 1993 terrorist attack. That danger evaporates with the U.S. tribunal system, as there is no possibility a tribunal officer would ever permit an examination into U.S. foreign policy as part of such proceedings.
One of the most fascinating trials before the People’s Court was that involving Hans and Sophie Scholl and the members of the White Rose organization. To gain a sense of how Hitler’s tribunal system operated, go rent the movie Sophie Scholl: The Final Days, which is based on actual transcripts of the proceedings. As you watch the trial, you will get a good sense of how things operate in the U.S. tribunal system in Cuba — disrespect for criminal-defense lawyers, presumption of guilt for the accused, the false trappings of a regular judicial system, and a preordained verdict.
To ensure that Germans couldn’t hear Hans and Sophie, who were in their early 20s, explain why they had published pamphlets critical of the Hitler regime and exhorting Germans not to support the troops, their tribunal trial was held in secret. When their parents tried to enter the courtroom, they were refused entry, and were told that they should have raised their children better.
Sure, there are differences in the two systems. For example, the U.S. system permits defendants a limited right to summon some witnesses on their behalf while the German system did not. (By the same token, U.S. tribunal prosecutors are entitled to use hearsay evidence and evidence acquired by torture.) Such differences, however, don’t change the essential nature and purpose of the two systems: to ensure convictions and keep defendants from publicly exposing the wrongdoing of the government.
One interesting difference between the two systems is that in Germany, all people accused of terrorism were brought before the People’s Court. That included German citizens. In the American system, the federal system and the new-fangled tribunal system have concurrent jurisdiction to try terrorism cases. That means that U.S. officials have the ad hoc, discretionary authority to treat accused terrorists in two completely different ways — either by sending them down the federal court route or the new-fangled tribunal route. It would be difficult to find a clearer violation of the principles of equal protection and the rule of law than that.
Of course, this dual system of arbitrary and capricious justice is itself a sham, given that U.S. officials wield the post-9/11 power to take any person acquitted by a federal court back into custody as a terrorist.
Was Hitler the inspiration for the post-9/11 U.S. tribunal system, as he was for America’s Interstate Highway System? I don’t know, but given the similarities in the goals, nature, and circumstances of Hitler’s People’s Court and the U.S. post-9/11 tribunal system, it’s certainly a question worth asking.
Jacob Hornberger is founder and president of The Future of Freedom Foundation.
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