Bush Administration Still Pushes For Outrageous Star Chamber Terror Trials

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The Bush Administration proposal to create star chamber trials for people it alleges are terrorists is a disgrace to the traditions of liberty that Americans hold dear. As the Washington Post describes the proposed secret trials:

Under the proposed procedures, defendants would lack rights to confront accusers, exclude hearsay accusations, or bar evidence obtained through rough or coercive interrogations. They would not be guaranteed a public or speedy trial and would lack the right to choose their military counsel, who in turn would not be guaranteed equal access to evidence held by prosecutors.

Detainees would also not be guaranteed the right to be present at their own trials, if their absence is deemed necessary to protect national security or individuals.

In the Post John D. Hutson, the Navy's top uniformed lawyer from 1997 to 2000, summarizes the proposed rules as allowing the government to tell a prisoner:

"We know you're guilty. We can't tell you why, but there's a guy, we can't tell you who, who told us something. We can't tell you what, but you're guilty."

Is the Bush Administration taking a cue from how the People's Republic of China conducts secret national security trials? The two Congressional committees hearing testimony today on this scandalously un-American proposal should hold Administration officials in contempt of Congress for violating their oaths to defend the Constitution and toss them in jail.

NEXT: Ladies and Gentlemen, the Bad Timing Award

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  1. I’m really glad you’re talking about this. I’m hoping a lot more people are by the end of the day. I’m really pissed off that this story only made page four; we’d better see some page one headlines tomorrow about leaders from both parties screaming bloody murder about it.

  2. I share Ron’s horror at the Bush Administration’s unending efforts to reduce the Constitution to a nullity and turn our democracy into a dictatorship. But making advocacy of policies, even atrocious ones, a crime is exactly the wrong way to go. Republicans almost lost the House of Representatives when they impeached President Clinton. Any attempts by Democrats to throw bad politicians in jail would be an even bigger flop.

    The unfortunate legacy of Watergate is a fascination with government by investigative committee and special prosecutor, instead of government by election.

  3. Republicans almost lost the House of Representatives when they impeached President Clinton. Any attempts by Democrats to throw bad politicians in jail would be an even bigger flop.

    Not necessarily. Had Clinton been allowed to get off scot-free, I don’t think America would have turned into a dictatorial place where Americans had to live in constant fear lest men lie in court about their consensual adulterous activities and get away with it. But living in fear that the government can lock you up with no evidence whatsoever . . . I’d say the stakes are a bit higher in this case.

  4. Perhaps what the administration really ought to do is just go with a Trial by Ordeal. They can take the prisoners from Guantanamo to a steel mill, and tell them, “If you can walk across that cauldron of molten steel, you may keep walking, right out the door.” Those who are pure of spirit should have no trouble gaining their freedom.

    I suspect the probability of acquittal would be strikingly similar to what might be expected in the tribunals. But I forgot- If They Weren’t Guilty, They Wouldn’t Be There.

  5. This is just fucked up. Is this an issue that anyone running for house or senate is even discussing? This would be possibly my #1 voting issue if there is a significant difference in the stances of competing candidates.

    If Bush’s proposal is anything like how it is described here than there must be something unconstitutional about it. Does anyone know where Bush’s supreme court nominees(sp?) stand on due process for alleged terrorists?

  6. King George was an epithet worthy of revolution once.

  7. Ron Bailey’s wading into the non-Biotech fray, and I like it! Ron you’ve been wasting your voice on a relatively minor issue, Biotech and Science Issues. With fire like that, we need you in the general fight against fascism. To paraphrase Roberts: “You don’t have any biotech crops if your democracy is dead.”

  8. So when is someone going to ask about whether Ron owns any stock in legal defense firms :)?

  9. This is the second quality post about political issues Bailey’s had this week, the other one being Pat Roberts’ cowardly dismissal of civil liberties. Much better than his reporting on the state of science.

    Actually, his consideration of the ethical dimensions of new technologies was always very strong. I didn’t always agree with it, but it always made me think.

    Maybe his talents lie more in commentary and analysis than in reportage.

  10. I don’t think that the proposed secret trials are going to be a major issue in the elections. Most of the Republicans are going to “stick by our Commander in Chief”, and the Democrats (or at least most of them) are going to be too scared to argue against something like the trials.

  11. zener

    Thats depressing. Does enough of the public care about this issue for a third party candidate to get a significant portion of the vote by emphasizing this issue? Maybe if they created the impression that they took enough votes away from someone to affect the outcome, there will be more debate in the 08 elections.

    You might be right but I have a hard time understanding why people would be reluctant to oppose the president with his approval rating down at 30% or so.

  12. Is the Bush Administration taking a cue from how the People’s Republic of China conducts secret national security trials?

    This just in: China uses jails! So do we! It’s the SAME THING! We’re as bad as they are!

    Ron, Ron, Ron… I’m disappointed to see this kind of hyperbole from you.

    Invoking the Red Spectre? Yawn. Wake me up when we start arresting people for talking about holding elections. Then you might have a point, sort of.

  13. TallDave,
    By then, we will be the Red Spectre. Liberty is not lost all at once, it is lost bit by bit.

  14. If the Democrats would run solely on undoing the damage done to civil liberties by this and previous governments (I blame Congress and the courts, too), I’d vote for them. Unfortunately, they’ll just get comfy and do much the same thing if they win. Everyone seems to want to build on the excesses of the past. Most of us here who aren’t wearing our most opaque partisan blinders recall the scary stuff that happened during the Clinton years, and I think we all agree that that administration was much more moderate than this one (and lacked the excuse of 9/11).

    If only there was a Reset or Undo Party. . . .

  15. TallDave’s fallacy is that we have to become exactly like China to be concerned. That’s like saying “Don’t worry about hitting the ground. We’re just going off the cliff right now. Nothing to worry about til Ground Contact.”

    What tripe.

    Kwix is right on target.

  16. Wake me up when we start arresting people for talking about holding elections.

    Well this isn’t exactly what you asked for, but its close:

    The ban occurred after Grapski was evicted by police from an Alachua City Commission meeting at which he attempted to have several items removed from a consent calendar – a list of non-controversial items that can be voted on without debate.

    Mayor Jean Calderwood ordered police to remove Grapski when he invoked a parliamentary procedure – a point of order which he says they refused to recognize – and then made a parliamentary inquiry asking what the rules of order are that a citizen may invoke who sees the Commission breaking the law. Grapski contends he was attempting to prevent commissioners from violating Florida?s Sunshine Law, which requires public input for controversial measures.

    ….

    Banning a candidate for public office from entering a city seems extreme under any circumstances. But the judge’s ruling is even more shocking considering that Grapski has not been charged with any crime

    “There is no set date for me to be tried, because I’m not being charged with anything,” said Grapski, who said he fears the ban could be permanent if he refuses to agree to cut a deal. “They have evidence that I’m innocent of that, and that the City Manager, Clovis Watson, lied to have me arrested, yet they are sitting on it to force me to negotiate with them.”

    Grapski cannot invoke his right to a speedy trial without waiving his right to enter into discovery or depose Watson, he said. “The State Attorney General could sit on this charge 180 days and not do anything until after the election,” he added, noting that he believes his First and Fourth Amendment rights have been violated.

  17. This just in: China uses jails! So do we! It’s the SAME THING! We’re as bad as they are! Ron, Ron, Ron… I’m disappointed to see this kind of hyperbole from you.

    Let me guess, TallDave: when you read ‘1984’ you viewed it not as a warning but a reassurance, right? “If we’re not this bad we need not worry.”

    RON BAILEY: The government’s insistence upon using cameras to record every inch of the public sphere is disturbingly Orwellian.

    TALLDAVE: This just in! Oceania had cameras! So do we! It’s the SAME THING! Seriously, Ron–when the government starts mandating telescreens in every person’s home, that’s when we need to worry. I’m disappointed to see this kind of hyperbole from you.

  18. The Bush Administration’s position is basically that the President can order a person detained and held indefinitely, with no requirement of any evidence, and then “tried” and convicted, with no trial. Of course, if they are found “innocent” after the kangaroo trial, they still can be held indefinitely.

    Just Great. I suppose I should be using an alias.

  19. The Bush Administration’s position is basically that the President can order a person detained and held indefinitely, with no requirement of any evidence, and then “tried” and convicted, with no trial. Of course, if they are found “innocent” after the kangaroo trial, they still can be held indefinitely.

    But don’t make any comparisons between us and any reprehensible countries that routinely do this, lest TallDave accuse you of being hyperbolic.

  20. Even if you love this Administration and all that it does, even if you believe the people serving in it are all sweetness and light, even if you thinking trading a little liberty for security is a fine thing, you shouldn’t support these sorts of extraconstitutional activities. Why? Because they set a precedent. Maybe you think the cause is just this time, but what about the next administration? How far can the Constitution and our legal tradition be stretched before it breaks? Isn’t the time to fight now, when we still have the power to do something about these encroachments? This is good, old fashioned American thinking, not wacko liberal or libertarian stuff.

    Don’t
    *
    trust
    *
    people
    *
    in
    *
    power.

  21. We are not at all like China or those other evil countries ruled by dictators and despots. When Dear Leader Bush decides you are guilty and required to be detained indefinately, he at least offers you the luxury of a sham, rigged trial during which you can prove your guilt with the help of hearsay testimony and statements made while you were being tortured.

    That is what makes the US a beacon for freedom around the world. When our leader unilaterally decides that you are guilty and throws you in prison forever, he at least has to go through the motions of proving you might have done something wrong during a trial that is as fair as possible while ensuring that not a single person the government believes is guilty goes free.

  22. See, I don’t agree with that kind of rhetoric. Things are worse than they should be, but we’re hardly some unfree dictatorship. I don’t think we’re even close. If we keep closing our eyes to abuses, we may get there, but we have a whole lot more freedom and, yes, moral authority than most nations as things stand today. Many of the European nations are capable of much grosser actions than we are, and their commitment to liberty isn’t as strong as ours. Playing World Cop gets us into a lot of awkward situations, of course, and it’s probably the greatest danger to our future economic health, political stability, and freedom. Still, I don’t think equating us to China (minus the window dressing) serves much purpose.

  23. It occurred to me a while ago, as I was engaged in the pursuit and execution of a horsefly as big as a bumblebee, that this might be an opportune time to reconstitute the House Committee on Un-American Activities.

    Of course, the Members would most likely devote their time to sanctimonious declamations about how the New York Times and their un-American ilk get hold of and publish information about such State Secrets as warrantless surveillance of American citizens presumed to be behaving in an un-American manner. As opposed to investigating a President who has violated his Oath of Office by wiping his Presidential ass with the Constitution.

  24. I don’t think equating us to China (minus the window dressing) serves much purpose.

    I disagree–it serves the purpose of demonstrating where we will end up if we’re not careful. If Bailey had said something like “Bush was seen eating with chopsticks–just like members of the Chinese government!!!“–I’d agree this was a specious comparison.

    But it wasn’t. It was “China is a bad place in part because they have secret national security trials, and now we’re proposing doing the same thing.”

    Or are you suggesting that Bailey was wrong because our secret national security trials are completely different from their secret national security trials?

  25. No, I was responding to what Scott said. I’m fine with the argument against us doing the bad things that the bad guys are doing. It’s what we do, not what we say or what we “stand for” that matters. Naturally.

    I’m just saying that I don’t think equating us with the baddies today is healthy, because it diminishes the many good things that still exist in this country. If being free and wealthy is the same as being oppressed and poor, then why even try to do the right thing? I can just see our leaders saying that they might as well be hanged for a sheep as a lamb. We simply are not a dictatorship with pretty wrapping. Though, of course, I join heartily in the fight to prevent us from becoming that sort of thing.

    If we had the Censor, we’d have an easy way to remove those who abuse power. Oh, yes, we would.

  26. We simply are not a dictatorship with pretty wrapping.

    For the majority of people here, that’s true. But for a small (and growing) minority, that’s false. To paraphrase something Don Marquis once wrote, I don’t think people facing “trials” in our star chamber are thinking to themselves “Thank God my rigged trial with a predetermined outcome is being conducted by a nation devoted to the ideals of freedom and justice!”

  27. I want to quote two paragraphs from the Washington Post story which Bailey did not choose to highlight (bold printing mine):

    A draft Bush administration plan for special military courts seeks to expand the reach and authority of such “commissions” to include trials, for the first time, of people who are not members of al-Qaeda or the Taliban and are not directly involved in acts of international terrorism, according to officials familiar with the proposal.

    The plan, which would replace a military trial system ruled illegal by the Supreme Court in June, would also allow the secretary of defense to add crimes at will to those under the military court’s jurisdiction. The two provisions would be likely to put more individuals than previously expected before military juries, officials and independent experts said.

    This isn’t even part of our bullshit “war on terror,” people. They’re not even pretending this has to do with terrorism. This is a naked power grab. How long before you think this becomes another drug-warrior tool?

  28. Um, two weeks?

  29. I don’t think we’re going to turn into China overnight. But I think this sends us in the wrong direction.

    China is not a likely destination. Something resembling Putin’s Russia, however, is entirely possible.

    If this is only used for terrorism suspects, most people won’t care. Which is sad, because I have a hunch that some of the suspects sent to the parallel “justice” system will be innocent guys who are railroaded to cover up incompetence. Still, the scope will be small. On a moral level it will be unacceptable, but on a practical level it will be fairly limited in impact.

    Likely extensions of the star chamber:

    1) Certain crimes that might more accurately be classified as hate crimes. Yes, I know, the distinctions are somewhat artificial and all that, I’m not saying it’s a good category for legal uses, but it is still somewhat valid for descriptive purposes. Anyway, I could see certain crimes motivated by racial, ethnic, religious, or other demographic prejudice being sent to these courts.

    Probably just the really high-profile cases, at first.

    2) People smuggling illegal immigrants: After all, this is a matter of Security and Sovereignty.

    3) Certain drug offenders: After all, we are fighting a War on Drugs.

    Once these courts are established as acceptable venues for people who aren’t suspected terrorists, including non-Muslims, then it will be possible to go to the next level:

    4) Disorderly and possibly violent protestors: Now, I’m no fan of people who riot or damage property during a protest, but I hope we can agree that people accused of breaking windows and throwing rocks at cops deserve a trial. However, if a protest includes some atrocities (perhaps instigated by undercover cops?) it shouldn’t be too hard to get headlines that say “A City Terrorized!” and then you’ve got a pretext to send a lot of dissidents to secret trials.

    5) To get dissidents from the other side of the spectrum, people who could be plausibly categorized as a “militia” member or tied to a radical antiabortion group (six degrees of Kevin Bacon style, maybe?) might also get caught up in this system if they piss off the wrong people or seem particularly unsympathetic.

    It will take us a while to get to that point, and I do think that the secret trials will be used sparingly, for cases that are particularly unsympathetic. But it will still be (1) a grave injustice for the people caught up in the system and (2) a tool to be abused, with a handful of truly innocent people deliberately shuffled in there with the the less sympathetic guys who get caught in the system due to circumstances.

    This scares the hell out of me.

  30. The sad part about this is that most Americans will be glad to hand over this power to the government. After all, what better way to keep out (or control) the darkies in Republican administrations and the hate mongers (like Randy Weaver’s wife) in Democratic administrations.

    I was hoping to be able to live in Las Vegas the rest of my life, but the way things are going, I just don’t know any more. My wife is going to be sooo pissed.

  31. BTW, excellent post, Ron.

  32. …I have a hard time understanding why people would be reluctant to oppose the president with his approval rating down at 30% or so.

    Some members of Congress oppose the President, but only on certain issues (immigration, stem cell research, gay marriage etc.) When it comes to the certain policies that involve the War on Terror, not a lot of politicians will challenge the President (even though I think they should).

  33. zener

    I guess that is plausible.

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