hidden Trials in the United States

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The United States government's incommunicable trial convention denies foreign-born defendants internationally-mandated possession to group trial. But, "[w]e live in hazardous times" is the often repeated mantra by governments and government officials, which have successfully retracted the otherwise ordinary civil liberties and possession of both citizens and residents of the United States.

Totalitarian regimes presently and historically have used such a "necessity" rationale to elucidate the worldwide repression of millions. Indeed, it has been these millions of citizen that have borne the brunt of such atrocities at death or attention camps, gulags, and killing fields. Although some may argue that the nature of terrorist threats mandate incommunicable trials, absolute power in the hands of individuals that are not accountable will eventually erode group trust 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 all the time elucidate its actions by rallying behind the banner of "Dangerous times" call for drastic measures.

Should the United States embrace a procedure of incommunicable proceedings even though they (i) violate international human possession law, (ii) hinder appellate functions, (iii) offend customary notions of fairness, and (iv) violate the procedural transparency required to guide meaningful trials?

The September 11 attacks are now part of our national consciousness. As primary 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 town and the Pentagon. Sadly, nearly 3,000 citizen perished in those attacks.

In response to the September 11 attacks, the Bush management declared a state of war on terrorism. As part of that response, the United States has embraced a procedure of incommunicable 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 safety of wartime intelligence is warranted.

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

Moreover, these proceedings are, for the most part, in contravention to the plain language of international human possession instruments. Such long-standing precedents are at the root of our due process system; enacted to ensure full transparency of government procedure making. For its part, the U.S. Government's position - that incommunicable 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 group criminal procedure process. Finally, these convictions should be field to reversal through narrate 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 troops commission conviction would be field to huge criminal liabilities-including doing 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, troops commission trials of terrorist suspects should be made public. It is time, therefore, for the United State to consider its convention in this area and amend its rule so that those alleged to have committed acts of terrorism can have group trials. Our government should not be allowed to continue a procedure of "just trust me" that I am doing what is best for you. This paternalism runs counter to our democratic values and long-standing ask that government proceedings remain transparent.

This narrative presents basic questions about the power of the U.S. To purge the due process possession of international criminal litigants and it involves the unprecedented judicial concealment of information, a process that currently jeopardizes group trust in the judicial system. This narrative examines the succeed of President George Bush's Order authorizing the use of troops commissions to try foreign criminal litigants. Part one of this narrative will study the procedural framework of the newly created troops commissions and how these processes fail to comport with customary notions of fairness. Part two of this narrative turns to international human possession law. More specifically, although the current U.S. procedure of embracing incommunicable trials violates the plain language of international human possession instruments, Part two considers the issue of a states right to derogate from their international obligations. Part three examines the arguments in favor of incommunicable trials by troops commission. Part four discusses the potential devastating effects concerning U.S.'s unilateral menagerial procedure acquiescing to troops commissions. In addressing this framework, any arguments ranging from moral perspectives to international legitimacy pervade the consulation and ultimately lead to the condemnation of incommunicable trials by way of troops commissions. In addition, Part four discusses how national safety and secrecy fail to address the cultural and religious issues in mandating troops commissions. Furthermore, Part four also discusses the pernicious aspects of the U.S. Order acquiescing to the use of troops commissions to try international criminal litigants.

Secret Trials and incommunicable Evidence

In addition, classified testimony, evidence, and facts 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 incommunicable 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 bodily 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 incommunicable evidence that he will never see and that his lawyers will never fully understand. Under these rules, not only can the government introduce incommunicable 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 troops defense counsel who have safety 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 troops commissions would be used to try only "enemy war criminals" for "offenses against the international laws of war," the chargeable offenses expand troops jurisdiction into areas never before considered field to troops justice.

The range of substantive offenses that are presented as "triable by troops commission" is quite broad, and includes offenses regularly considered civilian crimes. troops Commission education No. 2 expands the notion of "armed conflict" - the state of affairs that is the threshold health for any criminal offense to be characterized as a "war crime" - to comprise isolated incidents, and even attempted crimes. By doing this, crimes that traditionally have fallen outside troops jurisdiction can now, for purpose of the troops 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 comprise 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 troops commissions, then, is that they contribute 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 field to the troops 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. troops officers assigned to serve in that capacity.

Secret Proceedings growth the Risk of Erroneous Determinations

The troops commission rules governing incommunicable evidence may succeed 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 troops Commission rules, the Defendant may be prevented from the knowledge of even the general nature of the evidence against him. With the use of troops commissions, the risk that defendants are erroneously convicted is much higher. Accordingly, its unavoidable that incommunicable trials by troops commissions are fallible. President Bush's menagerial order makes the troops - which is the field of government tasked with conducting a war against these individuals - the judge, jury, and executioner.

With a singular swipe of his pen, President Bush substituted the democratic pillars of our legal system with that of a troops 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 possession to a presumption of innocence, an independent judiciary, trial by jury, unanimous verdicts, group proceedings, due process, and appeals to higher courts. All of these safeguards against injustice are gone.

It seems foreseen, that Americans would allow this convention if President Bush gave this same power to, for example, the Dallas Police Department. Further, the Order succeed bans all right to a meaningful appeal. In the current incommunicable trial cases, an opening to request for retrial would be standard given the fact that these cases involve the stigma of life imprisonment and death. But now, the succeed of the troops commissions is to constantly 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 troops commissions do not allow for narrate by a court independent of the menagerial field of government. narrate of the commissions' proceedings is itsybitsy to a specially created narrate panel appointed by the Secretary of Defense. No request for retrial is permitted to U.S. Federal courts or the U.S. Court of Appeals for the Armed Forces, a civilian court independent of the menagerial field that handles appeals from the courts martial. The President has final narrate 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 opening to dispute their guilt. The right to be properly heard in opposition to the government's effort to strip a someone 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 concerning the implementation of incommunicable trials, this process threatens to permit the unprecedented judicial concealment of facts and virtually leaves the power of the United States government unchecked. At the primary 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 incommunicable Trials

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

White House officials have stated that troops tribunals will let the government try suspected terrorists quickly, efficiently, and without jeopardizing group 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 management 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 incommunicable evidence argue that withholding classified facts from the accused is primary because its disclosure would jeopardize intelligence-gathering efforts in the field and dry up primary sources of information. For example, the accused may learn of very sensitive and actionable facts that he or his counsel may then no ifs ands or buts disseminate to others. Such a scenario is particularly hazardous if the accused is a member of a worldwide terrorist network, like al Qaeda. Critics of incommunicable evidence, on the other hand, argue that undisclosed classified evidence violates basic tenets of due process, cripples the quality of attorneys to contribute an sufficient defense, and opens the door to racial and religious prejudices.

Security Needs

The Government argues that, during ongoing hostilities, incommunicable proceedings and trial can contribute best safety and safety to all involved.

Many fear that press way will compromise national safety 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 group 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 safety of a U.S. troops installation with (i) sophisticated safety measures, (ii) itsybitsy access, and (iii) isolated from civilian citizen centers becomes the rational place to hold such proceedings. The U.S. Government has considered that post-trial Taliban, al-Qaeda, or terrorist retaliation is a real threat therefore, incommunicable proceedings are mandated to protect the identities of court participants.

Classified Nature of Evidence

As associated to the evidence presented, a U.S. troops commission will be best grand to protect evidence piquant on-going troops operations and investigations, which are ostensibly required to continued success of troops operations. The type of classified/sensitive facts that is argued must be kept incommunicable includes "U.S. intelligence communications, sources, identities, capabilities, and conference methods." Moreover, because U.S. troops commission panelists are already trained in maintenance of secrecy, and have undergone background safety investigations, they will be able to process classified facts effectively.

Maintaining the Secrecy of Our Allies' Information

The U.S. Argues that its incommunicable facts is also derived from allied intelligence sources. Were such facts be disseminated through group 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 best served by U.S. troops 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 troops operations- including a recognition of the presumed war-associated chaos associated 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 convert a looking of Guilty to a looking of Guilty to a lesser-included offense; or mitigate, commute, defer, or dangle the sentence imposed or any part thereof."

Foreign procedure and incommunicable Trials

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

Secret Trials Harm the United States' Reputation

The United States should take into observation that its already mottled credit 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, kindly nations share base legal traditions and past with the United States. On the other hand, non-allied nations utilize the United States' use of incommunicable 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 surmise to elucidate their own violations and atrocities.

U.S. Hypocrisy

In addition, using troops 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 standard 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 troops commissions and then criticize other countries, such as China, for their inadequate due process protections.

Moreover, a U.S. Group of State lawful has set the exact tone for the incommunicable proceeding controversy, "secret trials [are] inconsistent with due process." On March 25 of this year, for example, State Group 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 group trial." In addition, for its part, the United States government has condemned or criticized the following governments concerning the use of incommunicable trials: Nigeria; Egypt; Peru; China; Syria; Cuba; Iraq; and, Kuwait.

The use of troops commissions to try foreign nationals in situations short of customary 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 enunciate that incommunicable trials are bad group relations for the United States because the outcome of such proceedings will e njoy none of the legitimacy of results reached in general 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 certify that the defendants will not face a troops tribunal because of what they view as their surmise 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 narrate as "anti-Muslim justice," is strengthened. Such an appearance could in turn undermine the Administration's efforts to enunciate a coalition against terrorism and potentially incite additional terrorism. Numerous European countries have already expressed concern about the use of troops commissions. If U.S. Allies are implicated about troops commissions, the perception of those already hostile toward the United States is no ifs ands or buts 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 sustain in obtaining key witnesses and evidence. As a result, the United States' quality to guide the actual trials could be hampered.

Thus, even if (a) troops 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 finished to the public.

Pernicious Aspects of the U.S. Order Acquiescing to the Use of troops 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 procedure towards the Muslim world can have a globally transformative impact. It can not only make the United States more obtain but also prompt the Muslim world to come to be more democratic, peaceful and an foremost member of the international community. A rash and insensitive foreign procedure will only heighten insecurity and lead to a continued and bloody disagreement 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 incommunicable proceedings and convictions are tainted by potential political inequality. In this sense, for the United States' effort at a corruption free society and as a world leader in human rights, our core basic judicial history becomes near meaning-less. In the case of Al Qaeda combatants, human possession means personal and religious integrity that must be taken into catalogue as a customary issue as the world looks to the United States as leader.

National safety and Secrecy Fails to Address the Cultural and Religious Issues in Mandating troops 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 come to be an insult to world citizens in a religious and culturally charged exchange, the United States is losing 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 consulation that national safety mandates secrecy fails to catalogue 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 troops 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; group knowledge of facts used to convict the operatives of a religious crusade is meaningless to the safety of the United States. The reality must be that, allowing group awareness of these incommunicable proceeding will likely highlight in a negative manner the huge divide between combatant and religious crusader; the current management 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 deliberate upon on law and its application. group proceedings and trial maintain trust in the rule of law.

Even if incommunicable hearings are conducted fairly they "are surmise by nature." Accordingly, the U.S. Must consider its incommunicable proceedings and trials practice. In fact, the United States' decision to embrace incommunicable trials is antithetical to its own group courts history.

The U.S.' group trials tradition was and remains in response to barbaric lapses of justice examples of which no ifs ands or buts comprise the Spanish example of the Spanish Inquisition; the French abuse of the lettre de cachet, and the English Court of Star Chamber.

Moreover, incommunicable and un-reviewed judicial proceedings contradict international human possession laws enacted to mandate transparency of government decision-making. Under general circumstances, a foreign citizen's due process possession cannot be so no ifs ands or buts extinguished. But, if the United States' actions remain uncontested, international citizens will continue to be convicted without recourse or standard attention to due process. Thus, when inspecting the strike of due process possession and the risk of corruption and error "the group and the media must have authority to narrate all the 'facts' that field an individual to huge amounts of criminal liability."

Clearly, a incommunicable proceedings and trials procedure is antithetical to our democratic values. This convention undermines our democratic processes.

Embracing incommunicable 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 convention fails to fall within a recognized exception for secrecy including: (i) national security, (ii) privacy, or (iii) confidentiality. In addition, this convention contradicts international humanitarian laws enacted to ensure criminal prosecution transparency.

The incommunicable process currently employed by the U.S. Promotes a degradation of group trust 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 procedure allowing for the use of incommunicable trials and should embrace procedural transparency in line with basic basic human rights, international humanitarian laws, and due process.

In the long term, promotion of democracy, political self-determination, and human possession should be the overarching goal for U.S. Cooperation with the Muslim world. Washington should not maintain authoritarian regimes that undermine democracy and systematically violate the human possession of their own citizens. In addition, Washington should promote a schedule for cross-cultural understanding. Western allies should not only be asked to share in this global program, but also to share the financial burden of the project. American and European Muslims can come to be a very foremost 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 sell out the prejudice and hostility towards Islam in the United States.

Even as I make these proposals, I identify 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 insight 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 safety is our security. This is the only explication to the safety dilemma.

The basic idea here is to advocate a procedure that can be summarized as "nice but tough." In an piquant 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 flee the safety dilemma.5 The procedure of "nice but tough" that I am recommending, not only makes rational sense, but will also stand up to systematic scientific inquiry. I also identify that changes in Washington alone will not be sufficient to transform the basic character of the relationship between the United States and the Muslim world. But the framework I advise will no ifs ands or buts sell out anti-Americanism and will also heighten U.S. safety and its image in the eyes of Muslims everywhere. If you need more information, you can caress a well grand Los Angeles attorney so that you can more fully understand the intricacies of incommunicable trials. You may need experienced Dallas criminal attorneys who are well versed in the area of incommunicable trials as well as group criminal trials.

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