HTTP://WWW.STOPNATO.ORG.UK --------------------------- 'It's a show trial without the
show'
Secret military tribunals. Arrest without charge. No right to a lawyer. After September 11, this is justice US-style - and critics are warning of an erosion of civil rights. Edward Helmore reports Edward Helmore
Zacarias Moussaoui, the alleged
20th member and sole survivor of the September 11 hijacking team, may become the
first terrorist suspect to be tried, not by a US jury in a criminal court, but
by a secret military tribunal. Moussaoui, a French citizen of Moroccan descent,
was detained on immigration charges in August and therefore, according to the
authorities, was saved from his planned death with his fellow terrorists.
Instead, he may make history in a different way.
The presidential order establishing military tribunals to try foreigners
charged with terrorist offences was one of the many new legal powers designed to
advance America's domestic war on terrorism in the aftermath of September 11.
None has caused as much concern among lawmakers and civil rights groups.
President Bush's grab for what many critics term dictatorial power to charge,
try, jail or execute terrorists in what amount to secret courts without
affording constitutional rights to defendants, is being seen as unacceptably
excessive.
Determined not to let their hands be tied by legal procedure or the norms of
criminal law, the administration has not only established new military courts,
but increased the FBI's power to detain and question hundreds of immigrants
without legal representation or charge, and now allows the monitoring of
conversations between suspects and their lawyers, if deemed necessary to help
prevent terrorism.
"This represents a profound mistrust of the judicial processes of the United
States on the part of the government," says Ronald Kuby, who has taken on the
mantle of his former partner, the late, famed William Kunstler, defence lawyer
in the Chicago Seven trial and many other cases raising fundamental issues of
constitutional rights and civil liberties. "Attorney General John Ashcroft said
that foreign terrorists who come to the US are not entitled to the benefits of
the constitution. Superficially, that sounds very appealing, but the problem is
that it short-circuits the process by which we ascertain whether people are
innocent or guilty - and that's a full and fair trial."
His is not just an isolated voice. "Civil liberties are eroding, and there is
no evidence that the reason is anything more profound than fear and
frustration," commented a recent New York Times editorial. Civil liberties and
lawyers' groups, including the American Bar Association - not usually known for
its radical views - have criticised the policy in lively terms.
Kuby, who represented a number of defendants in the 1993 World Trade Centre
attack and those in a subsequent plot to blow up Manhattan's bridges and
tunnels, has been a vocal critic of the administration's approach to issues of
justice after September 11, and especially of the latest efforts to sidestep due
process in the event that Osama bin Laden himself, members of his al-Qaida
cohorts or suspected terrorists from other terrorist organisations are captured.
"It's extraordinary. What George W Bush has created is a parallel system of
justice in which he is the one who decides who is subject to these courts," Kuby
says. "The courts themselves run entirely under their own rules and have no
relationship to the constitutional framework that has evolved over 200 years."
Administration officials argue that terrorist attacks against Americans are
not regular crimes, but acts of war against which the old rules of law
enforcement and justice no longer apply. "The mass murder of Americans by
terrorists, or the planning thereof, is not just another item on the criminal
docket," according to Vice-President Cheney. "This is a war against terrorism.
Where military justice is called for, military justice will be dispensed."
Although Bush is only the latest of many presidents to restrict civil
liberties in wartime, the reasoning behind this administration's crackdown,
particularly the establishment of military courts, is unclear. "What's most
shocking is that this is a radical solution in search of a problem," says Kuby.
"We've had trials of Islamist terrorists, we've even tried and convicted
al-Qaida members, and we've done so in full, fair and open trials. So it's hard
to understand what the problem is."
Administration officials say the government is determined not to let
complications like rules of admissible evidence, the disclosure of secret
intelligence information, the need for unanimous jury verdicts, or lengthy
appeals processes to get in the way of the pursuit of terrorists.
The difficulties of bringing the suspects to trial in the Pan American Flight
103 - blown up over Lockerbie - convinced many of the benefits of military
tribunals. "If our boys did something wrong in this conflict, they'd be tried in
a military court. An al-Qaida terrorist shouldn't have any claim to different
procedures," William Barr, attorney general in the previous Bush administration,
told the Washington Post.
Despite disquiet in congress, in the media and within the legal profession,
there is little doubt the US public supports the measures. But setting aside
cherished constitutional guarantees faces strong opposition. In the case of
military tribunals, says Kuby, you end up with a situation in which someone's
guilt is largely preordained, based on the accusation. "That's anathema to our
system of justice. It's a show trial without the show."
Since the war in Afghanistan began, the US legal community has engaged in
debate about the prospect of trying Bin Laden in open court in the US.
Proponents say it would be a way to showcase American principles and the
fairness of its justice system, and cut down his mythology. Opponents say it
would not only be difficult to provide security for the judge and jury, but all
but impossible to select an unbiased jury. Many fear a public trial might give
Bin Laden a platform to propagate his views, provide a road map to the country's
intelligence sources, and turn him into a martyr. "That's a hideous reason to
scrap jurisprudence," says Kuby. "I can't believe the justice system is
incapable of matching Osama bin Laden's words."
Still, civil rights lawyers like Kuby are hardly lining up to rep resent
Islamist terrorists should they be brought to trial. While many of his former
clients - members of the Japanese Red Army or the Puerto Rican independence
group FALN, for instance - had some, however slim, arguments for political
justification, representing Islamist terrorists now holds little appeal.
"They're rightwing, fundamentalist, patriarchal, homophobe," says Kuby. "In
other words, the kind of people I have been fighting all my life. I was
uncomfortable with it at the time, and more so now. I found no sympathy in the
world they were trying to achieve."
While the prospect of a terrorist trial remains hypotheti cal, a crackdown on
US immigrants - legal and illegal, naturalised or alien resident - is not. As a
result of September 11, there are now 1,100 Arab-American immigrants in
detention, many of them without legal representation or knowledge of what they
are being investigated for. Moreover, the justice department has refused to
disclose details of those in custody. "We don't know how many are being held,
why, what they're charged with, or when their court appearances are," Kuby says.
"It's creating a lot of consternation. The government has imposed a blanket of
secrecy without explaining the need for secrecy. Its position is, 'We're not
going to tell you, and we're not going to tell you why we're not going to tell
you.'"
Earlier this month, the government took the further step of ordering that
5,000 recent visitors to the US - mostly from Middle Eastern countries with
suspected terrorist links, who have come to America within the last two years on
student, tourist or business visas - must be interviewed. The immigration and
naturalisation service has also dramatically slowed visa applications for any
man aged 16 to 45 from any of 26 Muslim countries, to allow for more thorough
security checks.
To civil rights lawyers the new, sweeping powers to detain, question and
deport are almost bound to result in abuses of power. The right to exclude
non-citizens is an inherent attribute of sovereignty, but the scope of the
exclusion is a matter of policy.
The visa issue has drawn criticism from pro-immigration groups and
organisations representing American Muslims, who claim that the new regulations
amount to profiling by religion or nationality; both of which, they argue, are
antithetical to American values. "It will catch up in its net people who mean us
no harm," says Angela Kelley of the national immigration forum. "It sends the
wrong message for a nation of immigrants."
There's one consolation. As and when the spectre of terrorism diminishes,
balance between individual freedom and national security is likely to normalise.
In times of fear, after all, people tend to place security above liberty. As
that fear diminishes, the pendulum may swing some way back. "In any case,"
points out Kuby, "the executive order that gives President Bush the right to
establish military tribunals doesn't actually establish them, nor has he yet
exercised the discretion to designate anyone for trial. It is without precedent
in modern times, but there may be time to head it off."
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