When British kings wanted to dispose of troublesome enemies — real or imagined — they often had them or their colleagues arrested on pretextual charges and then brutally tortured until confessions were extracted. The confessions were then read aloud during so-called trials; and, of course, the defendant was convicted of whatever crime was the subject of the confession.
All this was done in order to satisfy the political, and in many cases the personal, desires of the monarch by creating the impression of due process.
Often the torture occurred in remote places, so remote that there was no government there, and the king and his counselors could argue that the protections of the British traditions of fair play — the British do not have a written Constitution, but rather a set of traditions — was not violated because the torture occurred in a place where the traditions did not apply.
When one of the victims of this practice was an official who had previously engaged in perpetrating it, the House of Commons, many of whose members feared becoming victims of the monarch’s desires, adopted the principle of habeas corpus. That ancient right compelled the jailer of any person anywhere to bring the jailed person before a neutral magistrate and justify the confinement.
Due process has numerous definitions and aspects, but for constitutional purposes it basically means that all charged persons are presumed innocent and entitled to a written notice of the charges, a speedy and fair hearing before a neutral fact finder, a right to appeal; and the entire process imbued with fairness and a profound recognition of personal innocence until guilt is proven beyond a reasonable doubt. Due process also explicitly prohibits the use of torture.
In order to ensure that due process and habeas corpus would trump the whims of government officials — stated differently, to ensure that the British system of torture and confession and conviction did not occur here — James Madison and the Framers crafted protections in the Constitution to which all in government needed to swear allegiance and support.
Fast forward to the United States Naval Base at Guantanamo Bay, Cuba, and you can see the constitutional system turned on its head.
This George W. Bush-crafted American Devil’s Island, which costs $500 million a year to operate, once held 780 prisoners, allegedly there due to their personal involvement in the war on terror against the United States. Not a single one of them has been convicted of 9/11-related crimes, and only one former detainee is currently serving time in an American federal prison.
Nearly all the prisoners were tortured, and most were captured by roving militias and sold to American forces for bounties. Last week, under cover of darkness, the Biden administration released 11 detainees, all of whom had been at Gitmo for 20-plus years and none of whom had been charged with a crime.
The best known of the remaining 15 prisoners is Khalid Sheikh Mohammed, whom the government claims was the mastermind of 9/11. Mohammed was scheduled for trial when the military judge in his case retired. The new judge — the fifth on the case — was confronted with the daunting task of reading 40,000 pages of transcripts and documents concerning the torture of Mohammed by U.S. personnel.
At the same time, a new team of military and civilian prosecutors was assigned to the case and the new prosecutors told their bosses in the Pentagon and the new military judge that unlike their predecessors — who sought to mitigate the 183 torture sessions U.S. personnel administered to Mohammed — they were prepared to acknowledge it and decline to use any evidence obtained from it in the courtroom.
This remarkable turnaround — one that rejected the premises upon which Gitmo came into being — resulted in the prosecutors commencing plea negotiations.
The Bush-inspired premises of Gitmo were that since it is located in Cuba, federal laws don’t apply, the Constitution doesn’t apply and federal judges can’t interfere. In five landmark decisions, the Supreme Court rejected all these premises, and the new team of prosecutors and the new judge recognized as much.
The prosecutors basically said that they cannot ethically defend torture, they will not offer evidence derived from it in the case, and the case is difficult to prove without evidence derived from torture. This is a remarkable lesson to be learned. Instead of cutting holes in the Constitution, follow it. Instead of using torture, use acceptable investigative techniques. Instead of crafting a Devil’s Island, use the systems in place that have basically worked.
The settlement negotiations produced an agreement for a guilty plea that removed the death penalty from the case, required Mohammed to answer truthfully all questions put to him under oath and in public by prosecutors, defense counsel and lawyers for 9/11 victims’ families, and life in prison at Gitmo; not America’s hellhole in Florence, Colorado.
The plea was approved in writing by all, including the retired general in the Pentagon in charge of Gitmo prosecutions — herself a former military appellate judge. When Secretary of Defense Lloyd Austin learned of the plea agreement, he instructed the military prosecutors to move to vacate the agreement they had instigated. The trial judge denied this unique request. Last week, a military court of appeals upheld that denial. Mohammed’s courtroom plea will now take place before President Joe Biden leaves office.
None of this jurisprudential mess would have occurred if Bush had allowed the criminal justice structure to proceed unimpeded. The use of torture, rotating judges and prosecutors, and incarceration for 20 years without charges or trial are all hallmarks of an authoritarian government. If justice consists in convicting the guilty using established norms and fair procedures, Gitmo has been an unjust unhumanitarian disaster. But if justice consists in the king getting whatever he wants, then the Constitution is useless as a protector of freedom.
To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
COPYRIGHT 2025 ANDREW P. NAPOLITANO
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