Backtalk JUDGE ANDREW P. NAPOLITANO / GUEST COLUMNIST W Gitmo Unjust, Inhumane
hen british kings wanted to dispose of troublesome enemies — real or imagined — they often had them arrested on pretextual charges and then brutally tortured until con-
fessions were extracted. Often the torture occurred in remote places, and the
king and his counselors could argue that the protections of the British traditions of fair play were not violated because the torture occurred in a place where the traditions did not apply. The British House of Commons finally adopted habeas
corpus in 1679. It compels a jailed person be brought before a neutral magistrate to justify the confinement. All charged persons are presumed innocent and entitled
to a written notice of the charges, a speedy and fair hearing before a neu- tral fact finder, and a right to appeal. It also explicitly prohibits the use of
torture. In order to ensure that due process
and habeas corpus would trump the whims of government officials, James Madison and the framers crafted pro- tections in the Constitution to which all in government needed to swear alle- giance and support. Fast-forward to the U.S. Naval Base
torture of Mohammed by U.S. personnel. At the same time, a new team of military and civilian prosecutors was assigned to the case. They told their bosses in the Pentagon that unlike their predecessors — who sought to mitigate the 183 torture sessions administered to Moham- med — they would decline to use any evidence obtained from the torture. This remarkable turnaround led to 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
at Guantanamo Bay, Cuba, and you can see the constitutional system turned on its head. This George W. Bush-crafted American Devil’s Island,
If justice consists in convicting the guilty using established norms and fair procedures, Gitmo has been an unjust, unhumanitarian disaster.
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-relat-
ed crimes, and only one former detainee is currently serving time in a U.S. federal prison. Nearly all the prisoners were tortured, and most were
captured by roving militias and sold to American forces for bounties. Last month, the Biden administration released 11 detain-
ees, 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
98 NEWSMAX | FEBRUARY 2025
all these premises, and the new team of prosecutors and the new judge recognized as much. The prosecutors basically said the
case is difficult to prove without evi- dence derived from torture. This is a remarkable lesson to be learned. Instead of cutting holes in the Con-
stitution, follow it. Instead of using tor- ture, use acceptable investigative tech- niques. Instead of crafting a Devil’s Island, use the systems in place that have basically worked. The settlement negotiations pro-
duced 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, the “Supermax” in Florence, Colorado. The plea was approved in writing by all, including the
retired general in the Pentagon in charge of Gitmo prosecu- tions — herself a former military appellate judge. None of this mess would have occurred if Bush had
allowed the criminal justice structure to proceed unim- peded. 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 estab-
lished 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.
Judge Andrew P. Napolitano was the youngest life-tenured Superior Court judge in the history of New Jersey.
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