What would the law be without the Judicial Branch? Imagine an America in which you could be accused of a crime, convicted and punished without ever having the opportunity to set foot in a constitutional court of law. Imagine thinking that you would have the right to a fair trial, only to be informed that a new law had been passed, after you were accused of committing a crime that declares that anyone accused of the particular criminal event you’re alleged to be involved in would be put through a specially-established set of tribunals that don’t comply with constitutional standards of justice.
These circumstances are not idle speculation. They’re exactly the circumstances that would be created by a piece of legislation that has actually been written and is currently under consideration by the United States Senate. Senators Lindsey Graham, Joseph Lieberman and John McCain have promoted S.Amdt. 2669 to H.R. 2847, the Defunding Justice Amendment, which would forbid the Executive Branch from using courts established under the Constitution to prosecute criminal suspects accused of being connected to just one particular set of crimes. The amendment declares that no government funds can be used to conduct trials of suspects accused of connection to the attacks of September 11, 2001.
You may not like the people accused of participation in the September 11, 2001 attacks. Given what I know about them, I’m not fond of them myself.
In a free country, however, such prejudice is not supposed to be allowed to interfere with the conduct of any criminal trial, no matter how serious the charges. That’s why the Constitution requires that grave criminal charges must reach the stage of prosecution only after a grand jury has ruled that there is adequate evidence to bring the accused to trial.
There has still been no such grand jury in the prosecution of anyone suspected of involvement in the attacks of September 11, 2001, and that’s just the beginning in a series of evasions of our Constitution’s system of justice. The Defunding Justice Amendment violates another fundamental aspect of the Constitution’s system of fair trials: The ban on ex post facto laws.
Article I, Section 9 of the Constitution forbids ex post facto laws, meaning that Congress is not allowed to pass laws that change the rules of the law regarding an event after the event has taken place. That means that a legal act cannot retroactively be declared illegal, but it also means that the system of prosecution and punishment for a criminal act cannot be altered after the criminal act has taken place.
Way back in 1798, Supreme Court Justice Chase wrote the majority opinion finding that forbidden ex post facto law would include “every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender”. By creating the requirement, more than 8 years after the criminal event that the Executive prosecute suspects in just one particular criminal conspiracy be put on trial in a newly set up system outside of the constitutionally-established system of Justice, a system which has remarkably lower rules on evidence and testimony, the Defunding Justice Amendment would clearly violate Article I, Section 9 of the Constitution.
Perhaps your first inclination is not to care much, because you presume that the people accused of taking part in the criminal attacks of September 11, 2001 are guilty, even though not one suspect in the case has been convicted in a legitimate non-ex post facto court of law. If that’s your inclination, I urge you to reconsider, because the American system of justice is founded upon the presumption that a suspect is innocent until that suspect is proven to be guilty.
Disregard of that fundamental principle of American justice is not just unfair. It is downright unpatriotic.