What's
it about?
Okay, the world has clearly changed a lot since September 11th. And that means that
some of the tried and true rules that have governed the way we treat alleged criminals may
be changing as well. There are legislative moves afoot in Australia that we will address
in the future, but for the moment let's look at what is happening in the U.S. where the
detention of non-nationals, without the protections of due process (until now, foreign
nationals have had many of the constitutional rights and protections of citizens), have
led to an enormous national debate. Let's be clear, however, that this debate is far
hotter in the columns of newspapers than amongst the American public. A huge majority
think that detention and military tribunals for suspected terrorists are very necessary.
The Bush administration has made drastic changes to the criminal law to deal with the
threat (and reality) of terrorism. For instance, it will be possible to listen into
conversations of suspected terrorists, including conversations with their lawyers, and
military tribunals will be instituted, in which the rules of evidence are far less
stringent in their protection of defendants than in civilian criminal jurisdictions.
As of the end of November, 548 people, mostly from Middle Eastern countries, have been
arrested for immigration violations. Changes to immigration law allow the Immigration
Service to circumvent any order by a judge to order the release of a detainee. And under
the new laws, the Attorney General can detain for deportation any non-citizen whom he has
"reasonable grounds to believe" is "engaged in any activity that endangers
the national security of the United States."
What happens in
war?
Many have condemned the fact that the Attorney General refused to issue a list of those
detained. He had a curt reply: "I am not interested in providing, when we are at war,
a list to Osama bin Laden and the Al Qaeda network of the people we have detained that
would make any easier their effort to kill Americans." Is he right? It's hard to
know, but most people think the United States, Australia, and the others prosecuting the
war against terrorism have the moral high ground.
What happens in time of war? Is it fair to expect the niceties of the law to be applied
when a country is at war? Or is that really the point we have to make especially
when we are at war, to show that the so-called niceties of the law are the very things we
are fighting for in the first place. In fact, it is not surprising that lawyers (of
course!) representing the non-national detainees are outraged that the fundamental rights
to hearings have been suspended. "With this rule change, the government can lock
someone up on very little or even no evidence and throw away the key until they decide to
let them go," said David W. Leopold, an immigration lawyer. The American Civil
Liberties Union planned to challenge the rule in court as an unconstitutional violation of
the right of due process for foreigners.
Military tribunals
So how would "military tribunals" deal with these issues?
- There would not be a judge and jury as we are used to - military officers would act as
judge and jury.
- A two-thirds vote of commission members present at the time would be sufficient to
convict, as it would be for the imposition of a penalty or sentence.
- Far different from what is normal in criminal jurisdictions, the defendant could be
refused, on security grounds, from seeing the evidence against them.
- The right of appeal to "any court of the United States or any state" would be
forbidden.
- And perhaps most important, especially within our judicial systems, the trials could be
held in secret.
What we think
I have read, in a number of publications, that 'secret' tribunals are anathema to
Western ideals of justice - in other words, we should be able to see what is happening in
criminal trials in order to ensure they are fair. And as a generalisation, I
wholeheartedly agree.
The New York Times called these military tribunals a "travesty of
justice", and time and again fellow critics point out that the Nuremberg trials were
held in the open for all the world to see, as though this is analogous to the situation
with terrorists today. But this is plain silly. As Pulitzer Prize winning journalist
Charles Krauthammer has written, the Nuremberg trials were held at the end of the War,
when Nazism had been obliterated and the trials were designed in part to document its
bankrupt ideology. The idea of military trials is far more akin to the secret trials set
up by President Roosevelt to deal with suspected Nazi saboteurs during the War.
This is not necessarily an easy concept to accept for someone usually identified as a
liberal, who has worked in human rights law for many years. But neither is war and
terrorism an easy situation for us to find ourselves in, and like it or not, some of the
rules have to change. The events of September 11th may or not be the so-called "clash
of civilisations" (or ideologies), but the threat to the lives of Americans and their
allies is real enough.
Of course legal commentators should ensure that military tribunals are conducted fairly
and with care, but it is worth remembering that despite our real and proper desire to
ensure that the law is applied fairly, this is in reality a time of war. Only a moral
absolutist would have objected to extreme measures to deal with Nazis in the last World
War, after all, crimes committed by an enemy during war should be dealt with by the
military - and if you don't think the situation is analogous today, I invite you to take
yourself back to September 11th and remember what you were thinking when those two planes,
commandeered by international terrorists, slammed into the side of the World Trades
Centre. If you don't think that's an act of war, then you're living on a different moral
planet to this writer.
By Geoffrey Winn
Creative Director
www.law4u.com.au