Thursday, April 12, 2007
Jacob Hornberger’s Commentary
The Jose Padilla trial begins on Monday. As most everyone knows, this is a jury trial, which means that 12 ordinary people in the Miami area will be deciding whether Padilla is guilty or not of the terrorism charges that he has been indicted for.
What is important for everyone to recognize is the magnitude of the legal revolution that has taken place in the United States, post 9/11, with respect to what happens if the jury returns a verdict of not guilty.
Ever since the founding of the United States and prior to 9/11, if a person was acquitted in a federal criminal case, he would be immediately released from the government’s custody as soon as the jury returned a verdict of not guilty. The jury’s verdict had always been considered final. The judge had no choice but to immediately order the release of the defendant, who would walk out of the courtroom a free man immediately after the jury foreman announced two words: “Not Guilty.”
After 9/11, the law changed by virtue of orders issued by the president and the Pentagon. Announcing a “war on terrorism,” the president and the Pentagon declared that all people accused of terrorism, including Americans, would henceforth be considered “enemy combatants” and thereby be subjected to what amounted to perpetual military incarceration without trial. That declaration was ultimately ratified by the congressionally enacted Military Commissions Act.
As a result of those actions, if Padilla is acquitted by a jury of his peers, that still doesn’t mean that he will be released from government custody. At that point, despite a jury verdict of “Not Guilty,” the Pentagon has the option of taking Padilla back into custody as an “enemy combatant” and continue imprisoning him for the rest of his life.
The significance of this post-9/11 legal revolution is threefold:
(1) For centuries, the finality of a jury’s verdict has been considered an essential part of the freedom of the American people. That’s in fact why our American ancestors included the right to trial by jury in the Bill of Rights. It’s one of the things that have distinguished Americans from most of the rest of the world;
(2) The loss of finality to the jury’s verdict is part of the bundle of rights and freedoms that Americans traded away in return for “safety” from “the terrorists” after 9/11; and
(3) Everything federal officials, including those in the Pentagon, are doing to Padilla, they also have the authority to do all Americans.
Mr. Hornberger is founder and president of The Future of Freedom Foundation.