Sunlight is said that the best disinfectant, electric light the most efficient policeman.
The U.S. government secret study of the practice denies foreign-born defendants' rights with an international mandate for a public hearing. But, "live [w] e in dangerous times," is the oft-repeated mantra of governments and officials, who successfully brought in the usual civil liberties and rights of citizens and residents of the UnitedStates.
Totalitarian regimes currently and historically such a "necessity" used to justify the reasons for the worldwide oppression of millions. In fact, it has those millions of people who are the brunt of these atrocities to death or concentration camps, gulags were taken, and killing fields. Although some may argue that the nature of the terrorist threat to secret trials mandate of absolute power in the hands of people who are not responsible, ultimately erode public confidence in ourJustice.
As an "indictment" of such unlimited power, only in the last century, millions of world citizens have often fallen victim to executions without the semblance of due process or recognition of their fundamental human rights. Again and again, the governments of the world have turned to murder ethnic, religious and political differences delete them. Just as often, governments have rationalized justice as a blunt tool that is without the evidence of the legitimacy - for the individual as aThreat. Additionally, an uninhibited government can always justify their actions by standing behind the banner of "dangerous times" call for drastic measures.
The United States should include a policy of secret proceedings, even if they do not (i) contrary to international humanitarian law, (ii) impede functions appeals to insult (iii) to traditional notions of justice, and (iv) against the transparency of the procedures necessary to study meaningful rules?
The attacks of 11 September are now part of ournational consciousness. As significant as the Kennedy assassination, these events do not fade from national recognition. We will always know that on 11 September 2001, the Al-Qaeda terrorist organization hijacked passenger planes used in kamikaze-style attacks on New York City to celebrate the World Trade Center and Pentagon. Unfortunately, nearly 3,000 people died in those attacks.
In response to the attacks of 11 September, the Bush administration in a state of war against terrorism.As part of this response, the United States, a policy of secret procedures and tests have embraced foreign citizen born to prosecute. The alleged justification for the existence of these procedures is that these individuals are suspected of terrorism and that the protection of war-time intelligence is justified.
The unprecedented executive order (the "Order") permitting the practice was executed in November 2001. Actually, U.S. President George Bush order, in practice and effect, waivedcharged with public criminal proceedings for all foreigners who use terrorism. The Order further dispensed with public criminal proceedings for all foreigners suspected terrorists are home. Instead, it would be the mandate of the Order, all these procedures are carried out by a military commission. This specially created commissions, but lacking in many of the basic protection provided for fairness in the civil courts as well as in U.S. military courts.
In addition, these procedures are for the most part,contrary to the plain language of international human rights treaties. This long-standing precedents are the root of our due process system, adopted to ensure the transparency of government policy. For his part, the U.S. government's position - that do not remain secret proceedings against international law does not - undisputed. As an "advanced society", the U.S. is to the dictates of international law and make these criminal litigants a reasonable, fair,and public prosecution process. Finally, these beliefs should be subject to reversal by the opposition or appeal.
If the government's position were accepted, this would mean that for the foreseeable future, no international citizen is subject to the validity of its massive military commission conviction of criminal responsibility, including execution and life imprisonment. Typically, a detention order that it may never be reached here of the sort. InLight of liberty interest at stake and the risk of errors, should be made public military commission trials of terrorist suspects. It is time therefore for the United State to reconsider its practices in this area and to change its rule so that they may have allegedly committed acts of terror have public trials. Our government should not be allowed to continue a policy of "just trust me" that I am doing what is best for you. This paternalism is inconsistent with our democratic values andlong-standing demand that the government keep the process transparent.
This article presents fundamental questions about the power of the United States, the due process rights of international criminal law litigants to clean and it comes with an unprecedented judicial concealment of information, a process that currently threatens the public trust in the judicial system. This article examines the impact of the Order of President George Bush, trying to use military commissions of foreign criminalLitigants. The first part of this article will examine the procedural framework of the newly created military commissions, and how these processes can not behave with the traditional notions of fairness. Part two of this article turns to international human rights. Specifically, although the current U.S. policy is contrary to the extensive studies of the level of secret language of international human rights treaties, Part Two considers the question of the states have a right to exemptions from its internationalObligations. The third part examines the arguments for secret trials by military order. Part four describes the possible devastating effects on the unilateral U.S. policy executive acquiescence in military commissions. Criss In addressing this framework, several arguments of moral perspectives for international legitimacy of the debate and ultimately lead to the condemnation of the secret trials by military orders. In addition, part illustrates four, as nationalSecurity and confidentiality may not be the cultural and religious issues in hiring military commissions address. In addition, four are part of the harmful aspects of the U.S. attempt to consent to the use of military commissions to international criminal litigants.
Secret Trials and Secret Evidence
Moreover, can be classified testimony, evidence and information used against the accused. "Be admitted hearsay. Conversations between defendants and lawyersbe observed in some cases. Exculpatory evidence can be kept secret from suspects. "
The commissions can create a variety of evidence, which would not allow federal courts in criminal proceedings or military tribunals, such as un-based affidavits and other hearsay to admit, probably forced confessions, physical evidence and unauthenticated.
In fact, the rules of fair procedure and evidence do not apply. As it is written to allow the Guantanamo rules of the Commission of the Federal GovernmentTo convict Hamdan in order on the basis of secret evidence that he would never see and that his lawyers will never fully understand. Under these rules, not just the government may have to introduce secret evidence at trial, which has been withheld from the accused and his civilian lawyers, but the government can edit "state secrets" from the testimony of the accused, the military defense security clearances. Moreover, the criminal lawyers are not allowed to refute the defendantsor confronting classified testimony, evidence and information.
Military Commission Jurisdiction
Despite the White House assured that military orders would be used only to "enemy war criminals try" for "violation of international laws of war" that extend to offenses charged to military jurisdiction into areas never before as the subject of military justice.
The range of substantive offenses which are presented as "triable by military commission" is very broad andincludes offenses usually as crimes. Military Commission Instruction No. 2 extends the concept of "armed conflict" - the state of affairs that the threshold requirement for any offense that will be heard described as "war crimes" - individual cases, and even attempted crimes. In this way, the crimes that have traditionally fallen outside military jurisdiction, can now, for the purposes of military commissions, included under the "laws of war cloak."
Thisachieve unprecedented jurisdictional issues, which is achieved by expanding the definition of "armed conflict" - the term that the Geneva Convention establishes when "the law of war is triggered" - isolated "includes hostile acts" or unsuccessful attempts to commit such offenses, including offenses such as "terrorism" or "hijacking", which traditionally fall within the ordinary jurisdiction of the federal courts.
The problem with the process because after 11 September military commissions, then, is that they do not deliverMechanism for the defendants, who bring to their mission personal jurisdiction over him, that the protests. The President alone determines that a person who is subject to Military Order, and this finding can be prosecuted individuals for war crimes, although he denies that he is a fighter, illegal, or he meets the mission of the three criteria for eligibility .
Impartiality of the Finder of Fact or lack thereof
In addition, there is no jury, with the stateLoad met only by a two-thirds rubberstamp vote in favor of the state to convict. Of course, the supposed panel, which is rubber stamps of the United States' two-thirds majority of burden "of U.S. officers assigned there to serve in that capacity.
Secret Proceedings increase the risk of erroneous findings
The military commission rules on secret evidence can result in a higher risk of erroneous results. Hamdan, the Court recognized the crucial role that the defendantboth in the preparation and presentation of the defense. Under military rules, the Commission on the knowledge of the defendant may also prevent the general nature of the evidence against him. With the use of military commissions, is the risk that the defendants have been wrongfully convicted is much higher. In line with its clear that secret trials by military commissions are fallible. President Bush's executive order makes the military - the branch of government with the implementation of a task isWar against these people - the judge, jury and executioner.
With a single stroke of his pen, President George W. Bush replaced the democratic pillars of our legal system, with a military commission system, in which he or his representative shall rule maker, investigator, prosecutor, prosecutor, judge, jury, court, review of court and jailer or executioner. This system is a radical departure from the central constitutional guarantees are considered the heart of American democracy: theRights to the presumption of innocence, an independent judiciary, jury, unanimous rulings, public proceedings, due process, and appeals to higher courts. All of these provisions against injustice are gone.
It seems unlikely that the Americans would allow this practice, when President Bush gave the same power, for example, the Dallas Police Department. In addition, the effect of Order prohibits all right to a meaningful appeal. In the current study secret cases, the possibility of legal actionit would be useful, given the fact that these cases involve the stigma of life imprisonment or death. But now is the result of military tribunals, to avoid the permanent international criminal defendants litigants all that implies a fair trial.
Even in cases where the punishment - by meeting the load reached two-thirds majority - to run like hell individual has no right to a meaningful appeal. The military does not allow contracts for review by a court independent of theExecutive. Review the procedures of the commissions is to introduce a specially created review panel appointed by Defense limited. No appeal is directed to U.S. courts or the U.S. Court of Appeals for the Armed Forces, a civilian court independent of the executive branch that handles appeals allowed by the courts-martial. The President has final review of the Commission's convictions and sentences.
Anyone convicted of a crime should have the right to hisConviction and sentence reviewed by a higher tribunal according to law. These criminal litigants, but are never given the opportunity to contest their guilt. The right to proper, in contrast to the efforts of the government, a person's freedom can be heard on tape at the heart of the procedural law protection under the Constitution. Unfortunately, this does not apply to foreign nationals accused of committing terrorist acts.
In the absence of a reversal of the United States' positionon the implementation of secret trials, this process threatens the unprecedented judicial permit concealment of information and practice the power of the Government of the United States can be turned off. At the great risk of such errors persist indefinitely as those that may occur, deserves this aspect of the process the U.S. government rejection.
The U.S. arguments for Secret Trials
United States argues that because the terrorists are located worldwide, publicDissemination of classified information would be used by terrorists to: (i) an adjustment of its operational methods, (ii) manage to escape, (iii) further attack the U.S., its allies or their citizens, or (iv) retaliation against the participants of the secret trial.
White House officials have said that military tribunals ordered the government to try suspected terrorists, quickly, efficiently and without endangering public security, classified information or intelligence-collection methods andOperations. They argue that American courts tried to juries, judges and witnesses from the potential dangers of the accused terrorists would be protected. According to some government officials, the government reluctant to try captured terrorists - especially leaders of the Taliban and al-Qaeda network - in conventional courts, where their trials and appeals take years and could change in the glasses.
Specifically, argue proponents of secret evidence that withholdingClassified information the defendant is necessary because the disclosure of which endanger intelligence gathering efforts in the area dry and valuable sources of information. For example, the accused can learn from highly sensitive and actionable information that he or his attorney may then easily spread to others. Such a scenario is particularly dangerous if the accused is a member of a global terrorism, like al-Qaida. Critics of secret evidence, arguing on the other side,Evidence that undisclosed classified violates fundamental principles of due process, cripples the ability of lawyers to provide effective protection, and opens the door to racial and religious prejudice.
Security needs
The government argues, can offer during the ongoing hostilities, secret methods and study better security and protection for all parties.
Jeopardize relates Many fear that the press will have access to national security. Concerns about a media circus surrounding terroristStudies and forecasts that members of al-Qaida terrorist network may be glorified or made into martyrs if they are on public trial, everyone must be treated on a case-by-case basis, not by blanket closure orders.
When you come to the conclusion that each courtroom is being used to try suspected terrorists, an additional target for terrorists, then the extra security of a U.S. military installation with (i) sophisticated security measures, (ii) only limited access is and (iii) isolated from civilianUrban centers is the rational place to keep such a procedure. The U.S. government has determined that, after examination of the Taliban, al Qaeda or terrorist retaliation is a real threat are therefore secret, the process is mandated to protect the identity of the participants justice.
Classified Nature of Evidence
As the evidence presented in the context, a U.S. military commission will be better suited to detect with current military operations and investigations, which are protectedapparently necessary to the continued success of military operations. The type of classified / sensitive information, which is argued to be kept secret "includes the U.S. intelligence gathering communication, sources, identities, skills and methods." Moreover, since the US-trained military commission are already panelists for the maintenance of secrecy and undergo background security investigation, they will be able to effectively process classified information.
Respect for confidentialityInformation Our Allies
The U.S. claims that its secret information is also derived from allied intelligence sources. Were such information is disseminated through public trial could the U.S. lose the cooperation of its allies for "required" information.
Rules of Evidence
Because the evidence is against terrorist fighters claimed by the U.S. territories have their basis in the fight "more actively," the submission of such evidence will be better served by U.S. militaryCommission's rules of evidence, because they are flexible and run less constrained by formal requirement. The basis for the application of this rule of evidence refers to the manner in which they are received, managed and secured in the current military operations, including the possible recognition of the inherent chaos of war presumed to its retrieval in context.
Procedure after conviction
A conviction and sentence is not final until it by the U.S. President or his deputy, the U.S.Secretary of Defense. The President of the United States or Secretary of Defense may not grant the discretion of parole or results or reject the finding of Guilty to a finding of guilty, a lesser included offense, or mitigate, commute, defer or suspend the sentence or a part thereof. "
Foreign Policy and Secret Trials
As a global leader in governmental transparency has started the reputation of the United States and leading role of its secret proceedingsPolicy.
Reputation Secret Trials Harm the United States "
The United States should take into account that the already blemished reputation is losing ground as a world leader. On the one hand to seek U.S. allies in the United States in the implementation of widely accepted international law. In addition, friendly nations share common legal traditions and history with the United States. On the other hand, non-allied nations exploit the United States use of secret procedures and testsdenigrate the United States for violations of international law. Moreover, these methods allow the enemy to the U.S. American model as the reason for their own injuries and atrocities to justify benefit.
U.S. Hypocrisy
In addition to having military commissions to try the crime of terrorism, sending at least two inappropriate messages: (a) the world's only superpower, which should promote the rule of law may be dispensed with due process protection of aliens (at least if theyremain outside the U.S.), and (b) it is acceptable for other countries to do the same. The former message is not only problematic in and of itself, but it undermines any moral superiority. So it seems hypocritical for the United States to use these military commissions, and to criticize it, other countries, like China, for a fair trial is not sufficient protection.
In addition, a U.S. Department of State official the right tone for the secret proceedings controversy has set,"secret trials [is] incompatible with fair trial." On 25 To March this year, for example, condemns the State Department spokesman, Margaret D. Tutwiler say Israel's deportation of four Palestinians, too, that the U.S. "took the view that accusations of wrongdoing in a court of law should be based on testimony in an argument to be public process . In addition, for its part, the government has condemned the United States criticized or the following Governments with respect to the use of secret trials: Nigeria;Egypt, Peru, China, Syria, Cuba, Iraq, and Kuwait.
The use of military contracts to foreign nationals in situations short of traditional war, try to create problematic precedent that can be used by other countries (a), against the dissidents to commit domestic violence, or attempt (b) U.S. Soldiers detained abroad during a peacekeeping mission or humanitarian missions.
Critics also argue that secret trials are bad public relations for the United Statesbecause the outcome of such proceedings is to reach E njoy none of the legitimacy of the results in the ordinary civilian trials.33 Further, instead of branded as terrorists so the accused can be seen as political prisoners - victims, not perpetrators of crime. Some European countries, including Spain, have made it clear that it will not extradite suspects to the United States if they have a guarantee that the defendants not before a military tribunal because of what they have to see howtheir suspicions procedures. As such, opponents argue that the credibility is threatened by the United States as a world leader.
To the extent that studies are less than legitimate, the occurrence of "victor's justice", "or what some may characterize as" anti-Muslim justice "appears strengthened. Such a representation could in turn undermine the administration's efforts to maintain a coalition against terrorism and may incite further terrorism. Many European countries have alreadyexpressed concern about the use of military contracts. If U.S. allies are concerned about the military commissions, is the perception of the already hostile to the United States is certainly worse.
Problem of legitimacy can also impact on the studies themselves. For example, Spain, first position is that it does not extradite eight men, with the consent of the attacks of 11 Charged September, when the United States agreed to try them in a civilian court. If countries arenot willing to extradite suspects, they can not even willing to assist in gathering key witnesses and evidence. As a result, the ability of the United States could be hampered studies on the actual rules.
Thus, even if (a) military trials are conducted under well-planned, fairly neutral rules of the Secretary of Defense, are represented (b) the defendant is capable of defenders, and (c) the proof is sound procedure, it would be extremely be difficult against accusations that the procedureoutside marriage, especially if there are parts of the proceedings closed to the public.
Pernicious aspects of U.S. Order add to the Use of Military Commissions
A particularly harmful aspect of ongoing operations against al-Qaida terrorists - from the perspective of the fanatical (and not so fanatical) Muslims - is that the United States is committed to the religious integrity and personal character of one quarter of the population of our world . vilify
The tragedy of 11September both opportunities and dangers for the United States. A finely calibrated and thoughtful foreign policy toward the Muslim world is a global transformational effect. It is not only the United States safer, but also prompt the Muslim world towards greater democracy, peace and an important member of the international community. Is a rash and insensitive foreign policy will only increase uncertainty and lead to a prolonged and bloody conflict underminedthe world economy and to undermine global stability.
) Since so much of actions of the U.S. government is set up in a culturally insulting manner, the case against religious government established fighters go at the end to the personal (and eternal dignity. As such, the secret proceedings and convictions resulting from inherent political inequalities are vitiated. In this sense, the attempt by the United States "in a free society, and corruption as a global leader in the field of human rights, our core --basic legal sense of history is in the vicinity. In the case of Al-Qaeda fighters, ie, carry the human rights and religious integrity of personal accounts, are in first place is what the world expected to be taken that the United States as a market leader.
National security and secrecy is not the cultural and religious issues in the Military Commissions commitment to address
From the perspective of the fanatical (and not so fanatical) Muslims, the United States is trying to disparage the religiousIntegrity and personal character of one quarter of the population of our world. As so much measures of the U.S. government has to pay into an insult to the world's citizens in a religious and cultural exchange, the United States is losing its focus in the fight against terrorism. Among the most damaging mistake the current fight against terrorism is not the simple rules needed to deal with aliens in a culturally and religiously relativistic.
As such, the argument that nationalSecurity mandates secrecy not for the fact that the United States is not a war against a quantifiable unit of account. It is not. The United States is fighting an amorphous entity. Religion and culture - this is a mistake that the United States once before by an unruly and ill-advised, committed involvement in the Vietnam conflict were. Secrecy in the fight against quantifiable business can carry the day, because the effectiveness and success of the military attacks on the element of surprise to depend on when aEnemy, fails to take precautions against his tactics or change it. An amorphous enemy of culture and religion is a new and not so new opponent.
The religious warrior has no weaknesses, because his strategy requires changes to meet fanatical struggle. The United States is vulnerable at all times against this threat, public knowledge of information used to convict the workers of a religious crusade is pointless to the security of the United States. The reality is that this public awareness of thethese secret methods in a negative manner is likely to highlight the large gap between combatants and religious crusader, not the current government can not afford the perception that in the end, it is the prosecution of these individuals for their religious beliefs.
CONCLUSION - Reformation
Open courtrooms must be by the citizens for the required element of democracy adopted the free debate on the law and its application. Public hearings and sentencing to preserve confidence in the rule ofLaw.
Even if they are fairly conducted secret hearings "inherently suspect." Accordingly, the U.S. must reconsider its secret proceedings and trials practice. In fact, the decision of the United States, "secret studies include public courts against our own history.
The U.S. "was public studies tradition and is in response to the barbaric lapses Justice examples surely the Spanish example of the Spanish Inquisition, the French abuse of the lettre decachet, and the English Court of Star Chamber.
In addition, secret and un-reviewed proceedings of international human rights laws enacted to make the transparency of the decision of the government's mandate. Under normal circumstances, a foreign citizen's due process rights can not be extinguished so easily. But if the actions of the United States "will remain uncontested international citizens continue to be acceptable without recourse or attention to be sentenced to a fair trial. So ifAccount of the attack on due process rights and the risk of corruption and error, "the public and the media must be empowered to review all the" facts "that a single object, vast amounts of criminal responsibility."
Of course, a mystery, procedures and processes in contradiction to the policy of our democratic values. This practice undermines our democratic processes.
Embracing secret trials conflict with international humanitarian laws and laws of the United States in terms ofminimal due process requirements of a proper judicial process and the thought of actually due Locator. Also, this practice does not fall into a recognized exception to the secrecy, including: (i) the national security, (ii) privacy, or (iii) confidentiality. In addition, this practice is contrary to international humanitarian laws enacted to ensure the enforcement of transparency.
The secret, which currently supports the U.S. workers a deterioration of public confidence in our legal systemSystem. These procedures represent a threat to freedom and it is contrary to democratic values and form of democratic processes, the creation of the American way of life too. As such, the U.S. should reverse its policy in which the use of secret trials and should make the transparency of procedures in line with fundamental human rights to own, the international humanitarian law and due process.
In the long term, the promotion of democracy, political self-determination and human rightsshould be the overarching goal for U.S. cooperation with the Muslim world. Washington no support for authoritarian regimes that undermine democracy and systematic violations of human rights of its own citizens. In addition, Washington should a program to promote intercultural understanding. Western allies should be encouraged not only to participate in this worldwide program, but also share the financial burden of the project. American and European Muslims to a very importantBridge between the two worlds and their participation should be actively pursued. The goal is to reduce the growing anti-Americanism in the Muslim world's arrest and the prejudice and hostility towards Islam in the United States.
Even when I proposed this, I recognize that it may sound like a naive wishlists die-hard liberal Muslim. So be it. Unless we work to build a relationship that is premised on mutual respect and understanding and the inclusion of interests that wewill be condemned to war. Above all, the events of 11 September showed that the United States can violate at a time when the only dominant and unchallenged superpower. We live in an increasingly networked world, and in this world, our uncertainties are also interdependent. Unless others feel sure we will not be safe. If we want to protect our security, we must work with others to make them safer. In its security is our security. This is the only solution to the securityDilemma.
The basic idea is a policy that can be represented collectively, "beautiful, but tough." In an interesting computer game theoretical approach, Robert Axelrod (in Evolution of Cooperation), shows that were in the long run, international actors, whose first step was pretty tough, and the following (using a tit-for-tat strategy), the most frequently about security dilemma.5 The policy of "nice but tough", that I am, I recommend to avoid not only makes rational sense, butIn addition, stand up to systematic scientific investigation. I also recognize that changes in Washington will not be enough to transform the fundamental nature of the relations between the United States and the Islamic world. But the framework I suggest is sure to reduce anti-Americanism and is also the security of the United States and its image in the eyes of Muslims everywhere. If you need more information, you can get well-qualified Los Angeles attorney to help you more fullyto understand the intricacies of the secret trials. You may have experienced Dallas criminal lawyers who were also in the field of secret trials and public trust prosecution.
