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When the Founding Fathers looked for a model that reflected the abuses they objected to—in short what they intended to forbid by their new Constitution and Bill of Rights—they turned to an English institution, the Court of Star Chamber. It was a state security court with ancient roots which flourished under the Tudor and Stuart monarchs. The Star Chamber court operated in secrecy, was not bothered by the picky evidentiary rules that emerged in other courts, and did not believe that those appearing before it on state security charges had many rights—certainly not the right to counsel, nor even the right to conduct a defense. It relied very heavily on torture to extract the evidence it sought to convict, usually a confession—though rarely, of course, a confession with any validity, since the application of the rack would quickly get the subject to say whatever was desired, truthful or not.
Although scholars have been complimentary of the Star Chamber for its work on commercial matters, when politics was at issue, we see that it acted with little independence from the monarch. It was a tool for lashing the political opposition. And freethinkers were its particular victims. The mistreatment dealt to religious dissenters in particular, men like “Freeborn” John Lilburne and John Pym, caused the public to turn strongly against the Star Chamber and to demand its abolition. In the end, the Court of Star Chamber stood as an image for the tyrannical excesses of King Charles. And the American colonists, being overwhelmingly Roundheads, were among the loudest voices raised in opposition.
The Bush Administration is slowly introducing the Court of Star Chamber to the process of American justice. We see its elements everywhere. In the farcical Combat Status Review Tribunals created in Guantánamo, now repeatedly denounced even by judges serving on them as a travesty. In the Military Commissions, crafted in conscious avoidance of the standards both of American military and civilian justice. And in the steady press to lower the standards of our federal courts to introduce practices that continually tip the scales of justice in favor of prosecutors. Reports have begun to circulate that the Administration has put together a group of scholars headed by a right-wing activist judge to craft legislation to introduce a new court of Star Chamber, perhaps to be floated in the coming year. As we see in the public pronouncements of the Bush Administration, accusations leveled at detainees in the war on terror are leveled for political effect, and often to parallel partisan political campaigns. If those accusations are rejected by a court, it therefore undermines confidence in the Administration and the Party. Which is why, in the Bush view of justice, a failure to convict is unacceptable. And which is why the Bush view of justice is no justice at all.
Two stories in the press this morning give more evidence to the Bush Administration’s on-going assault on the courts and the concept of justice. Each is worthy of study and observation because of what it portends for the future of our languishing justice process.
In the Eastern District of Virginia (the Bush Administration’s favorite district court, in its favorite circuit), federal prosecutors secured a conviction and life-sentence against an Islamic scholar in 2005. His attorneys have attacked the conviction, claiming that he was the target of illegal surveillance. The Bush Administration has intelligence authorities making classified submissions directly to the judge in the case, without allowing either the defense or the prosecutors access to them. The New York Times reports:
A federal judge warned Tuesday that if the government did not allow lawyers to review classified material on possible wiretapping of an Islamic scholar convicted of inciting terrorism, she might order a new trial for him. The unexpected development is the latest legal complication involving the National Security Agency’s wiretapping program, which has produced challenges from criminal defendants as well as civil lawsuits against the government and phone carriers.
Lawyers for Ali al-Timimi, an Islamic scholar in Northern Virginia sentenced to life in prison in 2005 for inciting his followers to commit acts of terrorism, maintain that he may have been illegally wiretapped by the agency as part of its program of eavesdropping without warrants that was approved by President Bush soon after the Sept. 11 attacks. In April 2006, four months after the N.S.A. program was publicly disclosed, an appellate court directed the trial judge in Mr. Timimi’s case to reconsider it in light of his lawyers’ accusations.
But the issue has been bogged down in court for 18 months, with intelligence officials making a series of classified appearances before the judge, Leonie M. Brinkema, to explain the government’s position. Lawyers for Mr. Timimi and even the trial prosecutors have not been allowed to hear the closed-door discussions. Jonathan Turley, the lead appellate lawyer for Mr. Timimi, said the defense’s lack of access to crucial evidence had made it hard to litigate the case. “We’re shadowboxing in the courtroom with unnamed officials at unnamed agencies,” Mr. Turley said in a telephone interview.
Like defendants before the Star Chamber, the defense is being denied the right of confrontation, the most basic of defense rights. This means that they do not know what is being said against them, nor even who is saying it. And accordingly, they are not able to point out to the Court what is false or suspect in these statements, or to introduce information which would rebut them. And all of this is transpiring in an American court room today, in one of many courts in America in which the Constitution has become a dormant document–at the urging of the Bush Justice Department.
Five news organizations, The AP, The New York Times Co., Dow Jones & Company Inc., The Hearst Corp. and The McClatchy Company have filed a complaint stating that they are being denied access to critical information that would allow them to report on the Guantánamo Military Commissions proceeding against Canadian Omar Khadr.
Various arguments in the case of Omar Khadr at Guantanamo Bay, Cuba, are apparently made via e-mail — a communications channel to which the public has no access — and issues apparently are being raised in closed sessions for which no transcripts or summaries are available, the news organizations, including The Associated Press, wrote in a filing.
In addition, the filing stated, the public is not permitted access to motions and other documents submitted by the parties and “even the existence of a motion is not currently disclosed in any publicly accessible way.”
Khadr is now 21 years of age and has been in prison for five years, since he was 16. He is accused of having committed crimes as a minor. Radkhika Coomaraswamy, the UN Special Representative for Children in Armed Conflict, has registered strong complaints about the treatment of Khadr, as have other nations and human rights groups. “She raised her concerns about the creation of an international precedent where an individual is being tried for war crimes with regard to alleged acts committed when he was a child,” said a UN spokesman. There is a view in the international law community that the act of trying a minor as a war criminal is itself a war crime. Not that this would, of course, give the Bush Administration the slightest pause.
Specific charges against Khadr include having lobbed a grenade that killed an American medic in Afghanistan.
The US strategy of closely guarding the proceedings and restricting media access to arguments and materials submitted is, however, highly selective. The Department of Defense leaked to CBS News’s “Sixty Minutes” program what prosecutors have long viewed as their “bombshell” evidence: film which they assert shows Khadr involved in insurgent activities in Afghanistan. The Government strategy is that the Government will exercise tight control over what the public learns about the trial and what transpires there. That, of course, was the very abuse against which “Freeborn” John Lilburne railed in his assault on the injustice of the Stuart courts, and the right to an open court is often cited in legal history books as having been established by him, in the middle of the seventeenth century. Which is why the Bush Administration is so much more at home with sixteenth century concept of judicial conduct.
But the major issue that critics raise here is not Khadr’s guilt or innocence, but the procedural fairness and transparency of the process by which he is being tried.
As things stand now, whatever results from the trial of Omar Khadr, no serious observers are going to consider them to be fair. So what purpose is served by them? The answer to that question is fairly obvious: domestic political propaganda. This is a political trial, not an exercise in justice.
More from Scott Horton:
Six Questions — October 18, 2014, 8:00 pm
Nathaniel Raymond on CIA interrogation techniques.
Estimated number of calories a person consumes during Thanksgiving dinner:
The earth had become twice as dusty during the past century.
A man sued Pennsylvania state police who detained him for 29 days when they mistook his homemade soap for cocaine.
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“Shelby is waiting for something. He himself does not know what it is. When it comes he will either go back into the world from which he came, or sink out of sight in the morass of alcoholism or despair that has engulfed other vagrants.”