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Liberty and justice

So used are we in the Western democracies to the nostrums of our political system and the cycles by which that system operates that the notion that liberal democracy is not a natural state of affairs is difficult to comprehend. Yet it is so. It was only in the last decade of the 20th century that democracy finally reached across Europe. Terrorism poses the greatest dilemma for believers in the rule of law since World War II.

Some argue that it is one thing to apply the rule of law to those who recognise such a concept, but when dealing with terrorists the gloves are off, that it is necessary to fight dirty opponents with the same techniques or with the same ruthlessness. For example, Ted Lapkin of the Australia/Israel and Jewish Affairs Council, writing in The Australian on 25 August 2004, contended:

‘In combat, there is no legal requirement to read the enemy his rights before shooting him from ambush or calling down an artillery barrage on his head. Thus, it is self-defeating folly to apply peacetime legal standards to a wartime environment where they are utterly irrelevant … It would be absurd to allow those who violate the laws of war to benefit from the protections of the international treaties that they themselves systematically flout.’

On the other hand, American legal scholars have often used the story of Ulysses and the Sirens as a metaphor for their Constitution’s role in keeping short-term political impulses from imperilling the nation’s long-term, historical commitment to a free society based on the rule of law. The United States Constitution prevents presidents and governments from following the siren song of authoritarianism, the very evil against which the American colonists revolted.

The first duty of all nation states is the protection of its citizens. If it cannot provide it, the very existence of the nation is endangered. This is self-evident.

One of the chief predicaments for governments in liberal democracies is striking the appropriate balance between national security and the maintenance of the civil liberties that characterise such societies. What is apposite will depend on circumstances but if a liberal democracy is to remain such, there must be a line beyond which its government will not follow the siren call of national security.

Few have expressed the value of the rule of law more eloquently than Robert Bolt in his famous play, A Man for All Seasons, when he has Sir Thomas More reprove his flighty son-in-law for his bold claim that he would cut down every law in England to get after the Devil: ‘Oh? And when the last law was down and the Devil turned round on you—where would you hide, Roper, the laws being all flat? This country’s planted thick with laws from coast to coast—Man’s laws, not God’s—and if you cut them down d’you really think that you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake’.

Despite the enormity of the crimes of al Qaeda and the Taliban, and the understandable horror and repugnance they provoke, the establishment of ad hoc military commissions to try alleged al Qaeda and Taliban members of war crimes has provoked grave concern and enormous opposition not only from the usual suspects—civil libertarians and human rights activists—but from mainstream law groups, such as the American Bar Association, and even conservative commentators such as William Safire (who described them as ‘Soviet-style’). Predictably too, criticisms have come from Muslim societies that the Guantanamo prisoners, all Muslims, are being treated to a second-class system of ‘justice’ that would be unacceptable for others.

They contend, in more prosaic language than Bolt’s, that the commissions are inherently incapable of fairly trying accused prisoners and that reliance on them undercuts the rule of law in the US, the administration’s campaign to persuade others of the benefits of liberal democracy and endangers captive American and Coalition troops. Major Michael Mori, the US Marines’ legal officer appointed to defend the Australian David Hicks in a military commission in March 2005, has argued that in using an unfair system, which he contends the military commissions are, the US risks not only convicting the innocent but providing
the guilty with a valid complaint with which to attack a conviction.

The very manner in which the military commissions were established was unusual. President Bush acted on his own authority as US Commander-in-Chief rather than on a statute passed by Congress. More troubling, however, was his assertion in his Military Order that: ‘Given the danger to the safety of the United States and the nature of international terrorism, I find … that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognised in the trial of criminal cases in the United States district courts’.

While it is not clear why it is ‘not practicable’ to try alleged al Qaeda terrorists according to general principles of criminal law, even in ordinary courts martial, the shortcomings of military commissions are abundantly plain—so much so that Major Mori has said that the system does not provide ‘even the appearance of a fair trial’. Mori is not a maverick in this regard. A number of other military lawyers appointed as defence counsel in the military commissions have made similar complaints and gave support to the Center for Constitutional Rights in its US Supreme Court action against the US Government in which it argued that Guantanamo Bay was subject to US law. (In June 2004, the Supreme Court upheld that claim in Rasul v Bush.)

Even Ted Lapkin, who justifies the use of military commissions, concedes that ‘a conventional trial in a civilian courtroom would certainly do much to quell the wrath of the Bush administration’s detractors’. He claims, however, that ‘a normal criminal proceeding would erect serious obstacles to the effective prosecution of the war against radical Islamist terror that could very well cost innocent lives’ because intelligence sources would be jeopardised or compromised. That is simply wrong—in ordinary criminal proceedings, the government is entitled to claim a privilege against revealing information that may compromise, for example, criminal investigations or intelligence operations.

The more likely explanation for the establishment of military commissions is to be found in the comment of Justice Scalia in Rasul v Bush that ‘the Commander in Chief and his subordinates had every reason to expect that the internment of combatants in Guantanamo Bay would not have the consequence of bringing the cumbersome machinery of our domestic courts into military affairs’. This suggests that he believes that the military commissions are more about securing convictions than ensuring fair trials. One is irresistibly reminded of the old joke about the newly-captured rustler in the Wild West being told he would be hung after receiving a fair trial.

So far the military commissions have not conducted any trials. Once they have, however, it is inevitable that their very legality and their processes and decisions will be challenged in the Supreme Court. The principal defence argument is likely to be that the commissions are so fundamentally flawed as purported instruments of justice that any accused person could not receive a fair trial before them and that review or appeal process following such trials is inherently unfair.

That argument rests on a number of grounds. First, every aspect of the process is controlled by the Pentagon and the White House. An accused person is prosecuted by the military, defended by the military and tried before a group of military officers. Hence Major Mori’s complaint that there is not even the appearance of a fair trial. In October 2004, the Pentagon itself acknowledged some of the flaws in the system when it dismissed from the commissions three of the officers designated to sit as judges on the ground that they lacked impartiality. An impartial judiciary is the bedrock of any system of justice worth its salt.

Allied with that basic requirement is a system of appeal to a superior court. The second major flaw in the military commission system is that there is no right of appeal to a court. The only appeal is to the Secretary of Defense and then to the President. In these circumstances, no one could conceivably regard the Secretary of Defense or the President as independent or impartial, let alone judicial.

The third vice in the system is that the ordinary rules of evidence, designed specifically to ensure fair trials and to prevent wrongful convictions, will not apply. The commissions will be entitled to take into account any evidence they regard as relevant, including hearsay evidence from unidentified informants, forced confessions or admissions and even evidence kept secret from the accused persons. In an ordinary criminal trial or court-martial, an accused person has a right to test the evidence of, for example, an informer by cross-examination and by calling evidence to contradict the allegations of the witness.

The American Civil Liberties Union contends that this is the first time in American history that a court or tribunal would be allowed to use evidence not revealed to the accused or his civilian lawyer to establish guilt in a criminal proceeding.

Defenders of the tribunals point to the fact that certain rights are guaranteed by the rules of the commissions: the right to representation by defence counsel, a presumption of innocence, a standard of proof beyond a reasonable doubt, the right to obtain witnesses and documents to be used in their defence, the right to cross examine prosecution witnesses and the right to remain silent with no adverse inference being drawn from the exercise of that right. These rules, however, can be altered at any time at the whim of the Pentagon and the White House.

In 1943, Justice Felix Frankfurter of the US Supreme Court famously remarked that ‘the history of liberty has largely been the history of observance of procedural safeguards’. It is, however, misleading of the supporters of the commissions to claim that their rules are procedurally fair when an impartial judiciary is not available to apply them. The Soviet Union under Stalin had an impeccable set of constitutional rights for citizens but the judiciary were, of course, mere apparatchiks.

More recently, in a case dealing with the indefinite detention of an American citizen in a Navy prison, the very conservative Justice Scalia commented trenchantly on military justice and the historical distrust of it in American constitutional law: ‘Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis—that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it’.

It may be that the officers appointed to try David Hicks and others in the commissions will be as conscientious and honest as the courageous Major Mori but it is asking much of them effectively to face down their own President and Secretary of Defense by giving the accused a fair trial in the true sense.

In any event, any convictions secured in the commissions will inevitably be tainted by the process and, unfortunately, will be likely to further undermine any claims the US has to leadership or moral authority in the struggle for democratic freedoms in the Muslim world. This seems a high cost to pay for the convenience of securing the convictions of a few minor al Qaeda foot-soldiers in an unfair manner.

If Justice Scalia’s rumblings are any indication, the US government may also face embarrassment when the military commission cases—as they assuredly will—come before the Supreme Court. 

Hugh Dillon is a Sydney magistrate.


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