Issue 84, Winter 2001/2002

While military tribunals raise questions primarily about criminal justice, they also threaten First Amendment principles, rights and values. They can effectively “gag” defendants, undermine the ability of the press to report and the public’s right to know about critical events, and shield the government from scrutiny—all principles that are basic to democracy. Although the newly-enacted Patriot Act gives the President broad powers to fight terrorism, some members of Congress were taken aback when the President unilaterally announced a plan to try foreigners accused of terrorist acts in closed military tribunals.

As initially proposed, the tribunals would have lacked many of the criminal justice protections we take for granted: a public trial by jury, the right to a lawyer of one’s choice, a unanimous verdict of guilt beyond a reasonable doubt, and the right of appeal.

When a defendant’s voice and those of his accusers are stilled through secret hearings, the public has no way of knowing what the government is doing or why. The presence of the press at criminal trials enables the public to understand the charges, the evidence supporting them, what the accused claim in their own defense, and the politics of, and motivation for, criminal acts of terrorism. Open trials permit the public to evaluate testimony and evidence and to draw their own conclusions about the likelihood of guilt and innocence, the fairness of the proceedings, and the basis for government actions and policies.

Yet, when questioned by members of the Judiciary Committee, Attorney General Ashcroft replied that opposition to proposed secret trials would “give strength to America’s enemies.”

Fortunately, civil libertarians everywhere, including 300 law professors, were not cowed by the prospect of being deemed “unpatriotic.” Alarmed at how the measures would offend the Constitution, undermine the moral legitimacy of U.S. actions, and diminish the quality of any “justice” dispensed, they made their voices heard. As a result, the proposal has been substantially revised.

The new draft regulations from the Defense Department (as of this writing) reportedly provide for an appeals process, require a unanimous verdict for the death penalty, and permit the accused to hire civilian lawyers. The proceedings would be open to the public and the press and would be closed only to prevent disclosure of information important to national security.

First Amendment attorney Charles Sims, asked by Censorship News for a response to the original proposal, observed “Secret trials have no place in a free society…. Secret justice is no justice at all.” Does the revised plan resolve all troublesome issues posed by military tribunals? Stay tuned.