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by Jacob G. Hornberger

This entire dual, competing judicial system is about as weird as weird can get, including the fact that a retired military general now wields the authority to involve himself in plea bargains in criminal prosecutions. The fact that this weird judicial system has become a normal and permanent part of American life just goes to show how the national-security establishment controls, manages, and directs the federal government, with the other three branches simply playing a supportive role. SeeNational Security and Double Governmentby Michael J. Glennon.

Given that we have all been born and raised under a national-security state form of governmental structure, no one in the mainstream press is batting an eyelash over Secretary of Defense Lloyd Austin’s role in a plea bargain into which military prosecutors had entered with three men who are accused of participating in the 9/11 attacks, Khalid Sheikh Mohammed, Walid bin Attash, and Mustafa al-Hawsawix. Austin scotched the plea bargain because it eliminated the possibility of a death sentence for the three men.

To be sure, there are some mainstream pundits who have expressed disagreement with Austin’s decision to cancel the plea bargain. But none of them question the very notion that a retired military general is making a major decision in a case involving criminal justice. That’s because the mainstream press, along with many Americans, has come to accept the normality and permanence of the judicial system that the Pentagon established in Cuba after the 9/11 attacks.

But the fact is that Austin’s role in a criminal prosecution is weird — extremely weird. A retired military general serving as U.S. Secretary of Defense has no more legitimate role in America’s criminal-justice system than he does in America’s public-school system.

The U.S. Constitution established one judicial system. It consists of U.S. District Courts, federal courts of appeals, and the U.S. Supreme Court. It encompasses both civil and criminal jurisdiction. Under the Constitution, when the U.S. government targets someone with criminal prosecution, it must do so within the rules and constraints of the federal-court system.

In other words, the Constitution did not set up two dual, competing criminal-justice systems — one run by civilians and one run by the military.

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