Secret Trials in the United States

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Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.

The United States government's secret trial practice denies foreign-born defendants internationally-mandated rights to public trial. But, "[w]e live in dangerous times" is the often repeated mantra by governments and government officials, which have successfully retracted the otherwise commonplace civil liberties and rights of both citizens and residents of the United States.

Totalitarian regimes presently and historically have used such a "necessity" rationale to justify the worldwide repression of millions. Indeed, it has been these millions of people that have borne the brunt of such atrocities at death or concentration camps, gulags, and killing fields. Although some may argue that the nature of terrorist threats mandate secret trials, absolute power in the hands of individuals that are not accountable will eventually erode public confidence in our judicial system.

As an "indictment" of such unrestrained power, just in the last century, millions of world citizens have fallen victim to summary executions often without the semblance of due process or recognition of their basic human rights. Repeatedly, world governments have turned to murder to extinguish ethnic, religious, and political differences. Just as often, governments have rationalized blunt justice as a tool- without the indicia of legitimacy - for individuals deemed to be a threat. Moreover, an unrestrained government can always justify its actions by rallying behind the banner of "Dangerous times" call for drastic measures.

Should the United States embrace a policy of secret proceedings even though they (i) violate international human rights law, (ii) hinder appellate functions, (iii) offend traditional notions of fairness, and (iv) violate the procedural transparency required to conduct meaningful trials?

The September 11 attacks are now part of our national consciousness. As significant as the Kennedy assassination, these events will not fade from national recognition. We will forever know that on September 11, 2001, the al Qaeda terrorist organization used hijacked commercial airliners to perpetrate kamikaze-style attacks on New York City's World Trade Center and the Pentagon. Sadly, nearly 3,000 people perished in those attacks.

In response to the September 11 attacks, the Bush Administration declared a state of war on terrorism. As part of that response, the United States has embraced a policy of secret proceedings and trials to prosecute foreign-born citizens. The cited rationale for the existence of these proceedings is that these individuals are suspected of terrorism and that the protection of wartime intelligence is warranted.

The unprecedented Executive Order (the "Order") authorizing this practice was executed in November 2001. Actually, U.S. President George Bush's Order, in practice and effect, dispensed with public criminal trials for all aliens accused of terrorist acts. The Order further dispensed with public criminal trials for any alien suspected of harboring terrorists. Instead, according to the Order's mandate, all such proceedings would be conducted by a military commission. These specially created commissions, however, lack many of the basic fairness protections provided for in civilian courts as well as in U.S. military courts.

Moreover, these proceedings are, for the most part, in contravention to the plain language of international human rights instruments. Such long-standing precedents are at the root of our due process system; enacted to ensure full transparency of government policy making. For its part, the U.S. Government's position - that secret proceedings do not violate international law - should not remain uncontested. As an "advanced society," the U.S. should embrace the dictates of international law and afford these criminal litigants a reasonable, fair, and public criminal procedure process. Finally, these convictions should be subject to reversal through review or appeal.

If the Government's position were accepted, it would mean that for the foreseeable future, any international citizen contesting the validity of their military commission conviction would be subject to massive criminal liabilities-including execution and life imprisonment. Ordinarily, a deprivation of liberty of the sort at issue here could never be accomplished. In light of the liberty interest at stake and the risk of error, military commission trials of terrorist suspects should be made public. It is time, therefore, for the United State to reconsider its practice in this area and amend its rule so that those alleged to have committed acts of terrorism can have public trials. Our government should not be allowed to continue a policy of "just trust me" that I am doing what is best for you. This paternalism runs counter to our democratic values and long-standing demand that government proceedings remain transparent.

This article presents fundamental questions about the power of the U.S. to purge the due process rights of international criminal litigants and it involves the unprecedented judicial concealment of information, a process that currently jeopardizes public confidence in the judicial system. This article examines the effect of President George Bush's Order authorizing the use of military commissions to try foreign criminal litigants. Part one of this article will examine the procedural framework of the newly created military commissions and how these processes fail to comport with traditional notions of fairness. Part two of this article turns to international human rights law. More specifically, although the current U.S. policy of embracing secret trials violates the plain language of international human rights instruments, Part two considers the issue of a states right to derogate from their international obligations. Part three examines the arguments in favor of secret trials by military commission. Part four discusses the potential devastating effects regarding U.S.'s unilateral executive policy acquiescing to military commissions. In addressing this framework, several arguments ranging from moral perspectives to international legitimacy pervade the discussion and ultimately lead to the condemnation of secret trials by way of military commissions. In addition, Part four discusses how national security and secrecy fail to address the cultural and religious issues in mandating military commissions. Furthermore, Part four also discusses the pernicious aspects of the U.S. order acquiescing to the use of military commissions to try internation criminal litigants.

Secret Trials and Secret Evidence

In addition, classified testimony, evidence, and information can be used against such defendants. "Hearsay evidence will be allowed. Conversations between defendants and lawyers can be monitored in some circumstances. Exculpatory evidence can be kept secret from suspects."
The commissions may admit a wide array of evidence that would not be admissible in criminal trials in federal courts or courts martial, such as un-sworn statements and other hearsay evidence, arguably coerced confessions, and unauthenticated physical evidence.

Indeed, the rules of due process and evidence do not apply. As written, the Guantánamo Commission rules permit the federal government to convict Hamdan on the basis of secret evidence that he will never see and that his lawyers will never fully understand. Under these rules, not only can the government introduce secret evidence at trial that is withheld from the accused and his civilian lawyers, but the government can redact "state secrets" from the evidence given to the accused's military defense counsel who have security clearances. Furthermore, according to criminal trial attorneys, these defendants are disallowed to rebut or confront classified testimony, evidence, and information.

Military Commission Jurisdiction

Despite White House assurances that military commissions would be used to try only "enemy war criminals" for "offenses against the international laws of war," the chargeable offenses expand military jurisdiction into areas never before considered subject to military justice.

The range of substantive offenses that are presented as "triable by military commission" is quite broad, and includes offenses normally considered civilian crimes. Military Commission Instruction No. 2 expands the notion of "armed conflict" - the state of affairs that is the threshold condition for any criminal offense to be characterized as a "war crime" - to include isolated incidents, and even attempted crimes. By doing this, crimes that traditionally have fallen outside military jurisdiction can now, for purpose of the military commissions, be included under the mantle of "laws of war."

This unprecedented jurisdictional reach is achieved by broadening the definition of "armed conflict" - the Geneva Convention term that establishes when "the law of war" is triggered - to include isolated "hostile acts" or unsuccessful attempts to commit such acts, including crimes such as "terrorism" or "hijacking" that traditionally fall within the ordinary purview of the federal courts.

The due process problem with the post-September 11 military commissions, then, is that they provide no mechanism for a defendant who contests his commission's personal jurisdiction over him to effectuate that protest. The President alone determines that an individual is subject to the Military Order, and upon that determination the individual may be tried for war crimes even though he denies that he is an unlawful combatant or that he meets the Order's three criteria for eligibility.

Impartiality of the Finders of Fact or Lack Thereof

Moreover, there is no jury; with the State's burden to convict met only by a two-thirds rubberstamp vote in the State's favor. Of course, the putative panel that rubberstamps the U.S.'s "two-thirds vote burden" is made up of U.S. military officers assigned to serve in that capacity.

Secret Proceedings Increase the Risk of Erroneous Determinations

The military commission rules governing secret evidence may result in a higher risk of erroneous outcomes. The Hamdan court recognized the crucial role that the Defendant plays in both the preparation and presentation of the defense. Under the Military Commission rules, the Defendant may be prevented from the knowledge of even the general nature of the evidence against him. With the use of military commissions, the risk that defendants are erroneously convicted is much higher. Accordingly, its obvious that secret trials by military commissions are fallible. President Bush's executive order makes the military - which is the branch of government tasked with conducting a war against these individuals - the judge, jury, and executioner.

With a single swipe of his pen, President Bush replaced the democratic pillars of our legal system with that of a military commission system in which he, or his designee, is rule-maker, investigator, accuser, prosecutor, judge, jury, sentencing court, reviewing court, and jailer or executioner. This system is a radical departure from the key constitutional guarantees considered to be the heart of American democracy: the rights to a presumption of innocence, an independent judiciary, trial by jury, unanimous verdicts, public proceedings, due process, and appeals to higher courts. All of these safeguards against injustice are gone.

It seems improbable that Americans would allow this practice if President Bush gave this same power to, for example, the Dallas Police Department. Further, the Order effect bans all right to a meaningful appeal. In the current secret trial cases, an opportunity to appeal would be appropriate given the fact that these cases involve the stigma of life imprisonment and death. But now, the result of the military commissions is to permanently deprive accused international criminal litigants all that due process implies.

Even in the case when the penalty - achieved by meeting the two-thirds vote burden - is execution, such condemned individual has no right to a meaningful appeal. The military commissions do not allow for review by a court independent of the executive branch of government. Review of the commissions' proceedings is limited to a specially created review panel appointed by the Secretary of Defense. No appeal is permitted to U.S. federal courts or the U.S. Court of Appeals for the Armed Forces, a civilian court independent of the executive branch that handles appeals from the courts martial. The President has final review of commission convictions and sentences.

Everyone convicted of a crime should have the right to have his conviction and sentence being reviewed by a higher tribunal according to law. These criminal litigants, however, are never afforded the opportunity to dispute their guilt. The right to be properly heard in opposition to the government's effort to strip a person of his liberty is at the heart of procedural protections due under the Constitution. Unfortunately, this does not apply to foreigners accused of committing terrorist acts.

In the absence of a reversal of the United States' position regarding the implementation of secret trials, this process threatens to permit the unprecedented judicial concealment of information and virtually leaves the power of the United States government unchecked. At the significant risk of indefinitely perpetuating such errors as those that can occur, this aspect of the United States government's procedure deserves repudiation.

The U.S. Arguments for Secret Trials

United States argues that because terrorists are found worldwide, public dissemination of classified information would be used by terrorists to: (i) adapt their operational methods, (ii) evade capture, (iii) further attack the U.S., its allies, or their citizens, or (iv) retaliate against the participants of the secret trial.

White House officials have stated that military tribunals will let the government try suspected terrorists quickly, efficiently, and without jeopardizing public safety, classified information, or intelligence-gathering methods and operations. They claim that tribunals would protect American jurors, judges and witnesses from the potential dangers of trying accused terrorists. According to some administration officials, the government is reluctant to try captured terrorists - especially leaders of the Taliban and the al-Qaeda terrorist network - in conventional courts, where their trials and appeals could take years and turn into spectacles.

More specifically, proponents of secret evidence argue that withholding classified information from the accused is necessary because its disclosure would jeopardize intelligence-gathering efforts in the field and dry up valuable sources of information. For example, the accused may learn of highly sensitive and actionable information that he or his counsel may then easily disseminate to others. Such a scenario is particularly dangerous if the accused is a member of a worldwide terrorist network, like al Qaeda. Critics of secret evidence, on the other hand, argue that undisclosed classified evidence violates basic tenets of due process, cripples the ability of attorneys to provide an effective defense, and opens the door to racial and religious prejudices.

Security Needs

The Government argues that, during ongoing hostilities, secret proceedings and trial can provide better security and protection to all involved.

Many fear that press access will compromise national security concerns. Concerns about a media circus surrounding terrorist trials and predictions that members of the al Qaeda terrorist network may be glorified or made into martyrs if they are on public trial must all be addressed on a case-by-case basis, not by blanket closure orders.

If one concludes that any courtroom being used to try terrorist suspects becomes an additional terrorist target, then the additional security of a U.S. military installation with (i) sophisticated security measures, (ii) limited access, and (iii) isolated from civilian population centers becomes the rational place to hold such proceedings. The U.S. Government has determined that post-trial Taliban, al-Qaeda, or terrorist retaliation is a real threat therefore, secret proceedings are mandated to protect the identities of court participants.

Classified Nature of Evidence

As related to the evidence presented, a U.S. military commission will be better suited to protect evidence involving on-going military operations and investigations, which are ostensibly required to continued success of military operations. The type of classified/sensitive information that is argued must be kept secret includes "U.S. intelligence communications, sources, identities, capabilities, and gathering methods." Moreover, because U.S. military commission panelists are already trained in maintenance of secrecy, and have undergone background security investigations, they will be able to process classified information effectively.

Maintaining the Secrecy of Our Allies' Information

The U.S. argues that its secret information is also derived from allied intelligence sources. Were such information be disseminated through public trial, the U.S. may lose cooperation from its allies for "indispensable" information.

Rules of Evidence

Because the evidence used against terrorist combatants are argued by the U.S. have their basis in zones "of active combat," the presentation of such evidence will be better served by U.S. military commission rules of evidence because they are executed with flexibility and constrained by less procedural formality. The basis for the use of this standard of evidence relates to the manner in which it is received, maintained, and safeguarded during ongoing military operations- including a recognition of the presumed war-associated chaos related to its retrieval.

Procedure Upon Conviction

A conviction and sentence is not final until by the U.S. President or his delegate the U.S. Secretary of Defense. The U.S. President or U.S. Secretary of Defense is allowed the discretion to grant clemency or "disapprove findings or change a finding of Guilty to a finding of Guilty to a lesser-included offense; or mitigate, commute, defer, or suspend the sentence imposed or any portion thereof."

Foreign Policy and Secret Trials

As a world leader in governmental transparency, the United States' reputation and leadership role is tarnished by its secret proceedings policy.

Secret Trials Harm the United States' Reputation

The United States should take into consideration that its already mottled reputation is losing ground as a world leader. On the one hand, U.S. allies look to the United States in the implementation of widely-accepted international law. Moreover, friendly nations share common legal traditions and past with the United States. On the other hand, non-allied nations utilize the United States' use of secret proceedings and trials to denigrate the U.S. for violations of international law. In addition, such proceedings allow the U.S.'s enemies to capitalize on American precedent as reason to justify their own violations and atrocities.

U.S. Hypocrisy

In addition, using military commissions to try the crime of terrorism sends at least two inappropriate messages: (a) the world's only superpower, which should promote the rule of law, can dispense with due process protections for foreign nationals (at least if they remain outside the U.S.); and (b) it is acceptable for other countries to do the same. The former message is not only problematic in and of itself, but it undermines any moral high ground. For instance, it would seem hypocritical for the United States to use these military commissions and then criticize other countries, such as China, for their inadequate due process protections.

Moreover, a U.S. Department of State official has set the correct tone for the secret proceeding controversy, "secret trials [are] inconsistent with due process." On March 25 of this year, for example, State Department spokesperson Margaret D. Tutwiler condemned Israel's deportations of four Palestinians, asserting that the U.S. "believes that charges of wrongdoing should be brought in a court of law based on evidence to be argued in a public trial." In addition, for its part, the United States government has condemned or criticized the following governments regarding the use of secret trials: Nigeria; Egypt; Peru; China; Syria; Cuba; Iraq; and, Kuwait.

The use of military commissions to try foreign nationals in situations short of traditional war also establishes problematic precedent that could be used by other countries to (a) crack down on dissidents who perpetrate domestic violence, or (b) try U.S. servicemen apprehended abroad during a peacekeeping mission or humanitarian intervention.

Critics also assert that secret trials are bad public relations for the United States because the outcome of such proceedings will e njoy none of the legitimacy of results reached in normal civilian trials.33 Further, rather than being stigmatized as terrorists, such defendants may be seen as political prisoners - victims, not perpetrators of crime. Some European countries, including Spain, have made it clear that they will not extradite suspects to the United States unless they have a guarantee that the defendants will not face a military tribunal because of what they view as their suspect procedures. As such, opponents argue that the United States' credibility as a world leader is threatened.

To the extent that trials appear less than legitimate, the appearance of "victors' justice," or what some may characterize as "anti-Muslim justice," is strengthened. Such an appearance could in turn undermine the Administration's efforts to maintain a coalition against terrorism and potentially incite additional terrorism. Numerous European countries have already expressed concern about the use of military commissions. If U.S. allies are concerned about military commissions, the perception of those already hostile toward the United States is undoubtedly worse.

Problems concerning legitimacy may also impact on the trials themselves. For instance, Spain initially took the position that it would not extradite eight men charged with complicity in the September 11 attacks unless the United States agreed to try them in a civilian court. If countries are unwilling to extradite suspects, they may also be unwilling to assist in obtaining key witnesses and evidence. As a result, the United States' ability to conduct the actual trials could be hampered.

Thus, even if (a) military trials are conducted under well-planned, fairly neutral rules prescribed by the Secretary of Defense, (b) defendants are represented by able defense counsel, and (c) the proof is solid, it would be exceedingly difficult to counter allegations that the proceedings were illegitimate, especially if parts of the proceedings are closed to the public.

Pernicious Aspects of the U.S. Order Acquiescing to the Use of Military Commissions

A particularly pernicious aspect of the current activities against Al Qaeda terrorists - from the perspective of the fanatical (and not so fanatical) Moslem - is that the United States is striving to denigrate the religious integrity and personal character of a quarter of our world's population.
The tragedy of 11 September presents both opportunities and dangers to the United States. A finely calibrated and thoughtful foreign policy towards the Muslim world can have a globally transformative impact. It can not only make the United States more secure but also prompt the Muslim world to become more democratic, peaceful and an important member of the international community. A rash and insensitive foreign policy will only enhance insecurity and lead to a prolonged and bloody conflict that will undermine the global economy and subvert global stability.

As so much of the U.S. Government's actions is directed in a culturally insulting manner the procedures set up against Religious-Founded combatants go in the end against their personal (and eternal) dignity. As such, the resulting secret proceedings and convictions are tainted by inherent political inequality. In this sense, for the United States' attempt at a corruption free society and as a world leader in human rights, our core fundamental judicial history becomes near meaning-less. In the case of Al Qaeda combatants, human rights means personal and religious integrity that must be taken into account as a primary issue as the world looks to the United States as leader.

National Security and Secrecy Fails to Address the Cultural and Religious Issues in Mandating Military Commissions

From the perspective of the fanatical (and not so fanatical) Moslem, the United States is striving to denigrate the religious integrity and personal character of a quarter of our world's population. As so much of the U.S. Government's actions has become an insult to world citizens in a religious and culturally charged exchange, the United States is loosing its focus in the fight against terrorism. Of the most pernicious mistakes that the current fight against terrorism fails the simples of rules needed to deal with aliens in a culturally and religious relativistic way.

As such, the argument that national security mandates secrecy fails to account for the fact that the United States is not fighting a war against a quantifiable entity. It is not. The United States is fighting an amorphous entity. Religion and Culture - this is a mistake that the United States has previously committed by a recalcitrant and ill-advised involvement in the Vietnam conflict. Secrecy when fighting a quantifiable entity may carry the day because the efficacy and success of military attacks do depend on surprise when an enemy fails to modify its tactics or take precautions. An amorphous enemy of culture and religion is a new and not so new adversary.

The religious combatant has no failings because his strategy changes to meet fanatical warfare needs. The United States is vulnerable at all times from this threat; public knowledge of information used to convict the operatives of a religious crusade is meaningless to the safety of the United States. The reality must be that, allowing public awareness of these secret proceeding will likely highlight in a negative manner the huge divide between combatant and religious crusader; the current administration cannot afford the perception that in the end, it is prosecuting these individuals for their religious convictions.

CONCLUSION - REFORMATION

Open courtrooms must be embraced by the citizenry for the required element of Democracy of free debate on law and its application. Public proceedings and trial preserve confidence in the rule of law.

Even if secret hearings are conducted fairly they "are suspect by nature." Accordingly, the U.S. must reconsider its secret proceedings and trials practice. In fact, the United States' decision to embrace secret trials is antithetical to its own public courts history.

The U.S.' public trials tradition was and remains in response to barbaric lapses of justice examples of which certainly include the Spanish example of the Spanish Inquisition; the French abuse of the lettre de cachet, and the English Court of Star Chamber.

Moreover, secret and un-reviewed judicial proceedings contradict international human rights laws enacted to mandate transparency of government decision-making. Under normal circumstances, a foreign citizen's due process rights cannot be so easily extinguished. But, if the United States' actions remain uncontested, international citizens will continue to be convicted without recourse or acceptable attention to due process. Thus, when considering the assault of due process rights and the risk of corruption and error "the public and the media must have authority to review all the 'facts' that subject an individual to massive amounts of criminal liability."

Clearly, a secret proceedings and trials policy is antithetical to our democratic values. This practice undermines our democratic processes.

Embracing secret trials conflicts with the International Humanitarian Laws as well as United States law with respect to minimal due process requirements of proper adjudicative process and on the deference owed to fact-finders. Also, this practice fails to fall within a recognized exception for secrecy including: (i) national security, (ii) privacy, or (iii) confidentiality. In addition, this practice contradicts international humanitarian laws enacted to ensure criminal prosecution transparency.

The secret process currently employed by the U.S. promotes a degradation of public confidence in our judicial system. These proceedings symbolize a menace to liberty and they are antithetical to democratic values and democratic processes which form the foundation of the American way of life. As such, the U.S. should reverse its policy allowing for the use of secret trials and should embrace procedural transparency in line with basic fundamental human rights, international humanitarian laws, and due process.

In the long term, promotion of democracy, political self-determination, and human rights should be the overarching goal for U.S. cooperation with the Muslim world. Washington should not support authoritarian regimes that undermine democracy and systematically violate the human rights of their own citizens. In addition, Washington should promote a program for cross-cultural understanding. Western allies should not only be asked to participate in this global program, but also to share the financial burden of the project. American and European Muslims can become a very important bridge between the two worlds and their involvement should be actively sought. The goal here is to arrest the growing anti-Americanism in the Muslim world and reduce the prejudice and hostility towards Islam in the United States.

Even as I make these proposals, I recognize that they may sound like a naïve wish list of a die-hard Muslim liberal. So be it. Unless we work towards building a relationship that is premised on mutual respect, and understanding and accommodating interests, we will be condemned to wage war. Above all, the events of 11 September have shown that the United States can be hurt in an era when it is the sole, dominant, and undisputed superpower. We live in an increasingly interdependent world, and in this world our insecurities are also interdependent. Unless others feel safe, we will not be safe. If we wish to safeguard our security, we must work with others to make them safer. In their security is our security. This is the only solution to the security dilemma.

The basic idea here is to advocate a policy that can be summarized as "nice but tough." In an interesting computer game theoretical experiment, Robert Axelrod (in Evolution of Cooperation), demonstrated that in the long run, international actors whose first move was nice and subsequent ones tough (employing a tit-for-tat strategy), were the most likely to escape the security dilemma.5 The policy of "nice but tough" that I am recommending, not only makes rational sense, but will also stand up to systematic scientific inquiry. I also recognize that changes in Washington alone will not be enough to transform the fundamental character of the relationship between the United States and the Muslim world. But the framework I recommend will certainly reduce anti-Americanism and will also enhance U.S. security and its image in the eyes of Muslims everywhere. If you need more information, you can contact a well qualified Los Angeles attorney so that you can more fully understand the intricacies of secret trials. You may need experienced Dallas criminal attorneys who are well versed in the area of secret trials as well as public criminal trials.

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