Resurrecting the Star Chamber

When the Founding Fathers looked for a model that reflected the abuses
they objected to"in short what they intended to forbid by their new
Constitution and Bill of Rights"they turned to an English institution,
the Court of Star Chamber. It was a state security court with ancient
roots which flourished under the Tudor and Stuart monarchs. The Star
Chamber court operated in secrecy, was not bothered by the picky
evidentiary rules that emerged in other courts, and did not believe
that those appearing before it on state security charges had many
rights"certainly not the right to counsel, nor even the right to
conduct a defense. It relied very heavily on torture to extract the
evidence it sought to convict, usually a confession"though rarely, of
course, a confession with any validity, since the application of the
rack would quickly get the subject to say whatever was desired,
truthful or not.

Although scholars have been complimentary of the Star Chamber for its
work on commercial matters, when politics was at issue, we see that it
acted with little independence from the monarch. It was a tool for
la****ng the political opposition. And freethinkers were its particular
victims. The mistreatment dealt to religious dissenters in particular,
men like Freeborn John Lilburne and John Pym, caused the public to
turn strongly against the Star Chamber and to demand its abolition. In
the end, the Court of Star Chamber stood as an image for the tyrannical
excesses of King Charles. And the American colonists, being
overwhelmingly Roundheads, were among the loudest voices raised in
opposition.

The Bush Administration is slowly introducing the Court of Star Chamber
to the process of American justice. We see its elements everywhere. In
the farcical Combat Status Review Tribunals created in Guant!namo, now
repeatedly denounced even by judges serving on them as a travesty. In
the Military Commissions, crafted in conscious avoidance of the
standards both of American military and civilian justice. And in the
steady press to lower the standards of our federal courts to introduce
practices that continually tip the scales of justice in favor of
prosecutors. Re****ts have begun to circulate that the Administration
has put together a group of scholars headed by a right-wing activist
judge to craft legislation to introduce a new court of Star Chamber,
perhaps to be floated in the coming year. As we see in the public
pronouncements of the Bush Administration, accusations leveled at
detainees in the war on terror are leveled for political effect, and
often to parallel partisan political campaigns. If those accusations
are rejected by a court, it therefore undermines confidence in the
Administration and the Party. Which is why, in the Bush view of
justice, a failure to convict is unacceptable. And which is why the
Bush view of justice is no justice at all.

Two stories in the press this morning give more evidence to the Bush
Administrations on-going assault on the courts and the concept of
justice. Each is worthy of study and observation because of what it
****tends for the future of our langui****ng justice process.

Al-Timimi

In the Eastern District of Virginia (the Bush Administrations favorite
district court, in its favorite circuit), federal prosecutors secured a
conviction and life-sentence against an Islamic scholar in 2005. His
attorneys have attacked the conviction, claiming that he was the target
of illegal surveillance. The Bush Administration has intelligence
authorities making classified submissions directly to the judge in the
case, without allowing either the defense or the prosecutors access to
them. The New York Times re****ts:
http://www.nytimes.com/2007/11/21/wa****ngton/21nsa.html

    A federal judge warned Tuesday that if the government did not allow
lawyers to review classified material on possible wiretapping of an
Islamic scholar convicted of inciting terrorism, she might order a new
trial for him. The unexpected development is the latest legal
complication involving the National Security Agencys wiretapping
program, which has produced challenges from criminal defendants as well
as civil lawsuits against the government and phone carriers.

    Lawyers for Ali al-Timimi, an Islamic scholar in Northern Virginia
sentenced to life in prison in 2005 for inciting his followers to
commit acts of terrorism, maintain that he may have been illegally
wiretapped by the agency as part of its program of eavesdropping
without warrants that was approved by President Bush soon after the
Sept. 11 attacks. In April 2006, four months after the N.S.A. program
was publicly disclosed, an appellate court directed the trial judge in
Mr. Timimis case to reconsider it in light of his lawyers accusations.

    But the issue has been bogged down in court for 18 months, with
intelligence officials making a series of classified appearances before
the judge, Leonie M. Brinkema, to explain the governments position.
Lawyers for Mr. Timimi and even the trial prosecutors have not been
allowed to hear the closed-door discussions. Jonathan Turley, the lead
appellate lawyer for Mr. Timimi, said the defenses lack of access to
crucial evidence had made it hard to litigate the case. Were
shadowboxing in the courtroom with unnamed officials at unnamed
agencies, Mr. Turley said in a telephone interview.

Like defendants before the Star Chamber, the defense is being denied
the right of confrontation, the most basic of defense rights. This
means that they do not know what is being said against them, nor even
who is saying it. And accordingly, they are not able to point out to
the Court what is false or suspect in these statements, or to introduce
information which would rebut them. And all of this is transpiring in
an American court room today, in one of many courts in America in which
the Constitution has become a dormant do***ent"at the urging of the
Bush Justice Department.

Omar Khadr

Five news organizations, The AP, The New York Times Co., Dow Jones &
Company Inc., The Hearst Corp. and The McClatchy Company have filed a
complaint stating that they are being denied access to critical
information that would allow them to re****t on the Guant!namo Military
Commissions proceeding against Canadian Omar Khadr.
http://www.msnbc.msn.com/id/21917221

    Various arguments in the case of Omar Khadr at Guantanamo Bay,
Cuba, are apparently made via e-mail " a communications channel to
which the public has no access " and issues apparently are being raised
in closed sessions for which no transcripts or summaries are available,
the news organizations, including The Associated Press, wrote in a
filing.

    In addition, the filing stated, the public is not permitted access
to motions and other do***ents submitted by the parties and even the
existence of a motion is not currently disclosed in any publicly
accessible way.

Khadr is now 21 years of age and has been in prison for five years,
since he was 16. He is accused of having committed crimes as a minor.
Radkhika Coomaraswamy, the UN Special Representative for Children in
Armed Conflict, has registered strong complaints about the treatment of
Khadr, as have other nations and human rights groups. She raised her
concerns about the creation of an international precedent where an
individual is being tried for war crimes with regard to alleged acts
committed when he was a child, said a UN spokesman. 
http://www.thestar.com/News/article/278397

There is a view in the international law community that the act of
trying a minor as a war criminal is itself a war crime. 
http://jurist.law.pitt.edu/paperchase/2007/11/khadr-trial-could-set-precedent-for.php

Not that this would, of course, give the Bush Administration the
slightest pause.

Specific charges against Khadr include having lobbed a grenade that
killed an American medic in Afghanistan.

The US strategy of closely guarding the proceedings and restricting
media access to arguments and materials submitted is, however, highly
selective. The Department of Defense leaked to CBS Newss Sixty
Minutes program what prosecutors have long viewed as their bombshell
evidence: film which they assert shows Khadr involved in insurgent
activities in Afghanistan. 
http://canadianpress.google.com/article/ALeqM5hK8CUYrHOriC6pxWhbvpJMezqtiQ

The Government strategy is that the Government will exercise tight
control over what the public learns about the trial and what transpires
there. That, of course, was the very abuse against which Freeborn
John Lilburne railed in his assault on the injustice of the Stuart
courts, and the right to an open court is often cited in legal history
books as having been established by him, in the middle of the
seventeenth century. Which is why the Bush Administration is so much
more at home with sixteenth century concept of judicial conduct.

But the major issue that critics raise here is not Khadrs guilt or
innocence, but the procedural fairness and transparency of the process
by which he is being tried.

As things stand now, whatever results from the trial of Omar Khadr, no
serious observers are going to consider them to be fair. So what
purpose is served by them? The answer to that question is fairly
obvious: domestic political propaganda. This is a political trial, not
an exercise in justice.

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