War on Terror

What Constitutes a Fair Trial?

Everyone is subject to the law, and the government may not exclude anyone from its protections.


The trial of the alleged masterminds of 9/11, which began last week at the U.S. Naval Base in Guantanamo Bay, Cuba, will address some of the most profound issues of our era. Are natural rights truly inalienable, as Thomas Jefferson wrote in the Declaration of Independence, or can the government take them away from those it hates or fears? Does the Constitution protect the rights of all persons who come in contact with the government, or does it protect only certain Americans, as the government argues? Can the government deny a person due process by changing the rules retroactively, or is the Constitution's guarantee of due process to all persons truly a guarantee?

These are all questions that the government does not want to answer. But it should know better, because by structuring the trial after the crime was committed and by establishing retroactive rules—which are prohibited by the Constitution—that have never before been used in any American civilian or military court, Congress has created and the Obama administration will conduct a trial that will resemble none in our history.

The trial is being held in Cuba because President Obama caved to political pressure from New York City politicians who did not want the trial at the location where the murders took place. In one of the few rules of criminal procedure laid down in the Constitution itself, the Framers required all trials to be held in the same judicial district where the alleged crime took place. They were familiar with the British practice of trying colonists in London for alleged crimes committed in New York. But today New York politicians and their allies in Congress and the president think they can pick and choose which parts of the Constitution to uphold and which parts they can ignore.

The Constitution guarantees the right to confront evidence and witnesses. The colonists were all too familiar with Star Chamber, a British trial system in which evidence against an accused was summarized by a clerk of the court, rather than presented by witnesses with personal knowledge or revealed in documents for all to see. In trials at Gitmo, the government may summarize evidence for the court, and it may keep documents it plans to use away from the defendants.

The rules for this trial also permit hearsay: basically, anonymous accusations that were also the hallmark of Star Chamber. They permit the Secretary of Defense, who is the boss of both the prosecutors and the judge, to replace the judge if the secretary is displeased by his rulings. This is a procedure that is taken right out of the Communist Party playbook in Stalinist Russia.

Perhaps the most radical departure from American due process and pronounced return to Star Chamber is the congressional authorization for the admission of evidence obtained under torture. There is no question that these defendants were tortured. The CIA has admitted publicly that it waterboarded one of them 183 times and then destroyed the videotapes of the torture so jurors could not see how horrific this procedure is.

Torture is so abhorrent to American values that its use by rogue cops has resulted in what is known as the "shocks the conscience of the court" rule. This principle, which has been in place since colonial times, permits the court to dismiss the charges—no matter how grave—when the government's behavior shocks the conscience of the court. And all intentional torture is in that category.

I understand the emotions that are fueling these prosecutions, and I understand the pain and loss suffered by those whose loved ones were murdered on 9/11, and I understand the horrific nature of the crimes for which these defendants have been charged. But in America, we still have the rule of law. And that means that no one is above the law and no one is beneath it. Everyone is subject to the law, and the government may not exclude anyone from its protections. That is the essence of our system of justice. It is mandated by the Declaration of Independence and the Constitution, and its preservation is the reason we have fought our just wars.

This trial may have dire unforeseen consequences. From the president who opposed all this when he was a senator but now effectuates it, to members of Congress who enacted the Military Commissions Act that authorizes incarceration after acquittal (a procedure even the Soviets did not utilize), to the victims' families who surely would not want this rough justice visited upon their children; all these people now crying for blood could one day see the ruination of due process in America, with this case as precedent.

What constitutes a fair trial is the due process of American justice, which is guaranteed and required by the Constitution itself. If we deviate from the moral values of that system for the people we hate, woe to us for making law retroactively and based on hatred.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written six books on the U.S. Constitution. The most recent is "It Is Dangerous To Be Right When the Government Is Wrong: The Case for Personal Freedom."

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  1. And none of these important questions will be discussed in the mainstream media because to do so could potentially make Obama look like the liar he is.

  2. Constitution-Shmonstitution; this administration doesn’t give a flying fuck about your inalienable rights, Napalitano. They’ve made that abundantly clear time and time again.

    1. The Constitution is a living document, continuously updated and reinterpreted by legal scholars, the courts, and cultural norms. And the legal scholars, courts, and cultural norms agree: they don’t even acknowledge the existence of inalienable rights. That’s an 18th century concept that the living Constitution killed.

  3. There sure are a lot fewer comments on these articles now that we have to log in to submit them. Kind of a microcosm of the chilling effect that registrations have on everything government touches…

    1. Except Reason =/= government.

    2. Immediately prior to registration, half the comments or more were that White Indian asshole, so I’m not sure what the problem is.

    3. and why would you want hordes of too-uncaring-to-register junk comments on every single article exactly? not everyone gets artistic inspiration out of reading other people’s mental dumpsters.

  4. But of course, a fair trial also requires the presumption of innocence – it is up to the State to prove the defendant guilty. Since we already know the defendants are guilty and we all know what the outcome of the trials will be, none of the legal niceties such as due process are really relevant. This is not a fair trial, not even a Star Chamber proceeding. It is a show trial.

    1. am i missing something…
      oh, yeah combatants are not citizens in this case.
      whooops, there goes the air out of this story…
      love to see R.C. Dean’s comments…

      1. Yeah, because other residents of this country don’t enjoy the same legal protections as citizens.

      2. The writers of the DofI did not seem to think that Americans were a special class of humans…

        “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

        Note the phrase “all men”…

        1. And then they passed the 3/5 compromise. Seems not all men. Not even all whites. Who gives a flying fuck what these inconsistent pricks wrote? They set the stage for all current abuses of power.

      3. There is no doubt that the attacks of September 11, 2001 constituted acts of war.

        So who are we at war with?

        We are at war with the the 9/11 attackers, Al Qaida and the Taliban, but these same people are “enemy combatants” because we aren’t actually at war with them.

        Military commanders can tell who the enemy is if they are shooting at them. In the case of many of the detainees, they were not captured on the field of battle, they were declared to be enemy combatants before they were captured.

        Let us suppose just for a moment that – since all terrorists look alike and all foreign languages sound alike – the guy that they have detained as a Muslim terrorist mastermind is in fact a Catholic taxi driver from Guadalajara. How is he ever going to plead his case that they have made a mistake? Everybody has to have at least some basic human right to maintain his freedom.

        From that, we can derive certain rights we here in the US have actually codified but it does not change the fact that some of us believe that – as a matter of principle – all human beings possess those rights whether or not they live under governments that respect those rights. Some of us believe that this is what makes America America.

        1. nice try but no.
          throw out your ‘let us suppose’ because if i am not mistaken these scum have already admitted to the crimes…
          military tribunals are what should be happening, not Owebama show trials…
          sheeesh, split hairs much? ‘splain, how we are not actually ‘at war’…
          maybe your explanation will help the relatives of the victims of 9/11 feel better…

          1. Read the fifth amendment, it says nothing about “citizens” so stop being ignorant.

            It doesn’t matter if other people torture and kill, we don’t stoop to that level and it is illegal so stop bitching.

          2. Agreed. If these were military tribunals, there would be no bitching about things. Both the Bush and Obama administrations have done a good job of fucking up what should have been a slam-dunk prosecution.

            1. People seem to think this is all about the prisoners’ war status. Were they enemy combatants or unlawful combatants? The truth is that it really doesn’t matter. The real problem here is how the prisoners have been treated while detained by the U.S.

              Assume for a second that they were enemy combatants, people who “in an armed conflict who could be properly detained under the laws and customs of war”. The 1949 Geneva Conventions extended this definition to people who are “party to the conflict”. So this could certainly apply. Trouble is that the laws of war forbid torture. Moving on.

              Ok, so maybe they’re unlawful combatants (what Bush really meant when he called them enemy combatants). In that case, they’re under the jurisdiction of the federal court system. And this system also seems to forbid torture. Hmmm…

              Moral of the story – stop fucking torturing people!

      4. am i missing something…


        oh, yeah combatants are not citizens in this case.

        Non-citizens don’t have rights? So you would be fine with a mere resident with a green card being shot down in the street for jaywalking? According to you, he has no rights because he’s not a citizen, thus he has no right to life and no right to due process.

        whooops, there goes the air out of this Bucky’s story…


        1. non-citizens just happen to be enemy combatants, whooops, there goes the air out of P.H.O.D. …

          1. They’ve been captured, now they should get a fair trial.

            The military fucks the fuck up, military tribunals suck.

            1. The military has an awkward legal system that people should question.

              Reading this article is disgusting no matter what you say, and people deserve due process.

  5. The Supreme Court let General Yamashita be court-martialed for war crimes – he was a Japanese general whose troops ran amok in the occupied Philippines.


    1. does Al Qaeda or the Taliban recogize the Geneva Convention?

      1. The US still recognizes the confines of the constitution.

      2. I’m not sure why it matters if Al Qaeda recognizes the Geneva Convention. The U.S. does and that’s all that matters.

  6. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”.

    The Constitution uses the words ‘citizen’, ‘people’ and ‘person’ in slightly differing senses. A case could be made that ‘person’ is the most generic, meaning any person, that is, any human being that the government or courts are dealing with. There is no asterisk leading to a disclaimer about dealing with “really bad guys who we think mighta done some rotten stuff”. Open trial, where the crime occurred, and turn them loose if the prosecutor can’t make his case. Period.

    We move away from this at the peril of our own integrity and dignity.

    1. You do realize that all of the guys who actually committed the crimes on American soil went down with the ship, right? These guys facing trials didn’t commit crimes within the United States, weren’t captured within the United States, and haven’t been detained by civilian law enforcement in the United States. What precedent is there for capturing a non-US citizen overseas, putting them in military custody, then turning them over to civilian authorities to face charges for crimes a jurisdiction that they’ve never before set foot in? There isn’t. This argument is basically bullshit.

      1. Exactly.

  7. From none other than Julius Caesar:

    “But, you may say, who will complain of a decree which is passed against traitors to their country? Time, I answer, the lapse of years, and Fortune, whose caprice rules the nations. Whatever befalls these prisoners will be well deserved; but you, Fathers of the Senate, are called upon to consider how your action will affect other criminals. All bad precedents have originated in cases which were good; but when the control of the government falls into the hands of men who are incompetent or bad, your new precedent is transferred from those who well deserve and merit such punishment to the undeserving and blameless.”

    Fucking Caesar understood the rule of law better than Bush and Obama.

    1. Or, as they are saying over at Cato this week “Because we are not governed by angels”.

  8. They got the wrong guys. Round up the PNAC cabal and connect the electrodes. YouTube “WTC7” and Netflix “Reflecting Pool” for some hard truth.

    1. Oh boy, here we go….

      1. It’s OK, he’s wearing his anti-facial recognition disguise and colander helmet.

  9. That is the essence of our system of justice. It is mandated by the Declaration of Independence and the Constitution, http://www.nikewinkel.com/trai…..-c-58.html and its preservation is the reason we have fought our just wars.

    1. Must… wage just war… for Nike…

      1. Nike was the goddess of victory, wasn’t she?

  10. A fair trial is very important in the independent democracy, this will help to catch the real convict.

  11. I think this trial is intended to erode all of our rights in the future. It will create precedents which will be applied ever more broadly in the future. Let’s face it, none of these violations of due process are necessary. Evidence in the public domain is more than sufficient to convict them, especially in a military tribunal. Heck, these guys are proud of what they did and gladly take “credit” for 9/11.

    1. I don’t understand how a trial taking place outside of the United States court system is going to set a precedent within the United States court system.

  12. Is it just me, or is Napolitano absolutely wrong a trial needing to be conducted in the location it took place in? The 9/11 attacks were clearly federal crimes and the federal prosecutors have jurisdiction. High-profile federal cases see changes in venue all the time. So what’s the problem?

    1. Changes in venue are at the request of the defendant, not the plaintiff/prosecution.

  13. What these guys are receiving is somewhat analogous to the Nuremberg trials. And why not? They were captured during an “overseas conflict” (since we don’t openly declare actual wars anymore), most, KSM most notably, weren’t in the United States when the 9/11 attack took place, weren’t in the United States when they were captured, weren’t captured by civilian law enforcement agencies, and weren’t detained or held on US soil within the civilian law enforcement system. What precedent would there be for putting them to trial in a civilian court? What jurisdictional rules would apply to a “criminal” defendant who was not in the prosecuting country when the alleged crime took place? What rules of evidence would apply when a majority of evidence was acquired by military or intelligence agencies rather than law enforcement officers?

    I would be outraged if Americans or even non-American domestic terrorists were being subjected to these trial conditions, but these cases are very unique, and I can’t see any reason or precedent for subjecting them to a normal civilian trial. And since these trials aren’t taking place within the civilian federal system, I can’t see any conceivable way that they would create any sort of precedent for the treatment of suspects within that system. There doesn’t seem to be any there there.

  14. Everyone needs to learn that 9/11 was the American regime nuking its own largest city, and it created the China Syndrome which then poisoned thousands of responders and millions of NY residents. Google “China Syndrome Aftermath”

  15. ndrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written six books on the U.S. Constitution. http://ceinturepascher.blogs.fr/ The most recent is “It Is Dangerous To Be Right When the Government Is Wrong: The Case for Personal Freedom.”

  16. Can someone give me a primer on what constitutes an “unlawful combatant” versus “enemy combatant.”

    For instance, at the end of WWII, Dresden was bombed, and according to some, this was without any good military purpose. If pilots in that “raid” had been captured, would Germany have been within the rules of war to execute the pilots as terrorists?
    I understand that Japan did execute American pilots after the Dolittle raid.
    Was that considered unjustified, and if so, what is the distinction between the 9/11 attack and the dolittle attack?
    Under what circumstances can an “enemy conbatant” be executed, and how does this differ from the circumstances that a “unlawful combatant” can be executed.

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