What Constitutes a Fair Trial? by Andrew P. Napolitano
- From: dynolator@xxxxxxxxx (Capt. Justice)
- Date: Fri, 11 May 2012 13:49:36 -0500
What Constitutes a Fair Trial?
by Andrew P. Napolitano, May 11, 2012
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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.
COPYRIGHT 2012 ANDREW P. NAPOLITANO / DISTRIBUTED BYÂ CREATORS.COM
Read more by Andrew P. Napolitano
The President's Private War - May 4th, 2012
Is the CIA in Your Kitchen? - March 21st, 2012
Can the President Kill You? - March 7th, 2012
Spies in New Brunswick - February 29th, 2012
What Is a Just War? - February 1st, 2012
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