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by Jacob G. Hornberger

Last December a 60-year-old American citizen was taken into custody in Havana by Cuban authorities. The man, Alan Phillip Gross, who resides in Potomac, Maryland, is suspected of being a spy for the CIA.

While U.S. officials are denying that Gross is a spy, circumstances surrounding the case are enough to raise eyebrows. He was in Cuba distributing cell phones as a consultant to a company that received a multi-million grant from USAID, whose projects over the years have included regime change in Cuba. Oddly, Gross’ detention was kept secret for more than a week after he was taken into custody.

Presumably, Gross violated Cuba’s Law 88, which criminalizes the “distribution of financial, material, or other resources that come from the United States government, its agencies, subordinates, representatives, functionaries, or private entities.”

Meanwhile, many, if not all, of the conservatives who have been denouncing American criminal defense attorneys for representing accused terrorists at Guantanamo and demanding federal-court trials for them, have remained silent about Cuba’s treatment of Alan Gross.

The reason is not difficult to decipher. The fact is that conservatives love the judicial system that Cuba’s communist leader Fidel Castro has implemented in Cuba.

After all, don’t forget that the reason that conservatives have ardently supported the decision by President Bush and the Pentagon to locate their prison camp for suspected terrorists in Cuba rather than the United States was that Gitmo was intended to be a Constitution-free zone, one in which the U.S. government would have the same power to treat suspected terrorists as Cuba has in treating suspected spies like Gross.

Look at how the Cuban authorities have treated Gross. He’s been held in jail since December without a preliminary hearing and without being formally notified of the charges against him. He has no legal way to challenge his detention because habeas corpus, which is the lynchpin of a free society, isn’t recognized under Cuban law. So far, there’s not even any indication that Gross will be put on trial, meaning that he could be incarcerated indefinitely, just like the people on the U.S. side of Cuba.

Of course, conservatives love all this. After all, Gross is a spy, right? Why should a spy be accorded any more rights than a terrorist, especially when he is a foreigner, right? Like those terrorists on the U.S. side of Cuba, Gross simply deserves to be punished.

Nonetheless, there is a possibility that the Cubans will decide to put Gross on trial anyway, if for no other reason than to make it look like justice has been done before he’s punished, much like the way those tribunals work at Guantanamo. If that were to happen, there would be virtually no chance of an acquittal, given that Cuba does not permit independent criminal trial attorneys to ardently defend their clients. A conservative’s dream, as we see from the way that conservatives are denouncing those criminal-defense attorneys who have been representing people being detained by U.S. authorities on their side of Cuba.

American conservatives would undoubtedly agree that the Cuban criminal-justice system is a conservative’s dream-come-true. No coddling of criminals, no due process of law, no grand-jury indictments, no preliminary hearings, no suppression of illegally acquired evidence, no prohibition against tortured confessions and testimony, no independent criminal defense attorneys, and pre-ordained, rigged verdicts at the hands of fearful judges. Just quick, severe punishment of spies, terrorists, and other criminals.

Compare that system with the judicial system that the Founding Fathers established: the presumption of innocence, the right to be formally advised of criminal charges, preliminary hearings, grand-jury indictments, no coerced confessions, no unreasonable searches for evidence, the right to an independent and competent attorney, the right to bail, the right to a speedy trial, the right to trial by jury (as compared to a kangaroo tribunal), and so forth.

What conservatives fail to realize, however, is that the only way to truly determine whether Gross is guilty of that Cuban law is with a trial. And not just any trial, but with a trial by jury of regular citizens, where the jury can acquit Gross if they think the law is a bad, immoral one.

By the same token, the only way to determine whether the people are the U.S. side of Cuba are guilty of terrorism is, again, with a trial, and not just any trial, but rather a trial by jury consisting of regular citizens, not a kangaroo tribunal.

The Constitution brought into existence the greatest criminal-justice system in history. Of course, it has its faults and can be improved upon. But Americans will rue the day they permit conservatives to ditch it in favor of the type of judicial system employed by Fidel Castro and his communist cronies.

Jacob Hornberger is founder and president of The Future of Freedom Foundation.